What does ‘shizzle my nizzle’ mean? Is rap a foreign language? Does ‘string dem up’ encourage lynching? Just some of the cutting edge issues in our report on the first UK case to consider rap and moral rights.
Topic: Moral rights
Who: Confetti Records, Andrew Alcee and Others v Warner Music UK Limited
Where: Chancery Division of the High Court of Justice of London
When: May 2003
There has just been a very rare event in English case law: the court has considered and pronounced in detail on a claim of infringement of moral rights.
Moral rights infringement became a part of English law with the coming into force of the Copyright, Designs and Patents Act 1988. The rights broadly took two forms. There was firstly the "credit right", namely the right to demand that one's name appeared on one's work wherever it was published. Secondly there was the so called "integrity right". This was the right to stop and claim damages in respect of any use of one's work which classified as a "derogatory treatment" of it.
Since then, these new rights have turned out to be something of a damp squib: there have been very few cases indeed where such claims have come before the High Court. Accordingly, this case, where the moral rights infringement claim came on the back of wider contractual issues separately reported on marketinglaw, is worth savouring.
The whole case centered around the use by Warner Brothers of a track called "Burnin" in a mix compilation album of garage music. In the album, entitled "Crisp Biscuit", some of the tracks including "Burnin" were "adapted" by members of the Crisp Biscuit album's instigators, "the Heartless Crew". In the case of Burnin, The Heartless Crew had remixed it and added rap lyrics.
"Burnin" composer Andrew Alcee brought a moral rights infringement claim against Warner Brothers as part of a wider action arising out of unsuccessful attempts by "Burnin's" rights owners Confetti Records, to stop the appearance of the Burnin song in the compilation.
First of all, the court had to establish what an infringement of moral rights would entail in this context. Since we were dealing here with "integrity right", the author Andrew Alcee had the right to object to the Heartless Crew's adaptation of his song if the Heartless Crew treatment of the track could be regarded as "any distortion, mutilation or other modification of, or other derogatory act in relation to, [Alcee's work] which would be prejudicial to his honour or reputation."
This meant, in the view of trial judge Kim Lewison J., that even if the author could establish that the Heartless Crew's adaptation of the song was a distortion or mutilation, he could not get home on moral rights infringement unless he could also show that this was also prejudicial to his honour or reputation.
At the heart of the Confetti claim was an assertion that the words of the rap contained references to "violence and drugs." This led to the "surreal experience" (in the judge's words) of three gentlemen in horse hair wigs examining the meaning of such phrases as "mish mish man" and "shizzel (or sizzle) my nizzle". At this point the judge got into some difficulty. When played at normal speed, the words of the rap by Heartless Crew overlaying "Burnin" were very hard to decipher. This was so much the case that the combatants in the case could not agree on what the words were in many places.
Also, with "shizzle my nizzle," the Judge's difficulties were compounded by the absence of any definition of this phrase which could be accessed either on the net or elsewhere. A similar blank was drawn for "mish mish man". To get over this difficulty, Counsel for the composer fought bravely. Firstly he adopted a broad brush approach and submitted that the treatment was derogatory because all coherence of the original work had been lost as a result of the superimposition of the rap. Secondly he said that other words in the rap which appeared to be "string dem up one by one" was an incitement to lynching.
But it didn’t look good for Alcee. The Judge commented that the very fact that the words were hard to decipher militated against the conclusion that the treatment was "derogatory" in the statutory sense.
In essence, the Judge felt that what he was dealing with was a foreign language and in that context he had to be assisted by expert evidence if he was going to define any particular meaning for them. In the absence of any such expert evidence and any other available definitions of phrases such as "shizzle my nizzle" or "mish mish man," the Judge found himself in difficulty in coming to a "derogatory" finding.
Also, the absence of any evidence in front of the Judge about Mr Alcee's honour or reputation and of any prejudice to them created by the Heartless Crew's adaptation made it very difficult for the Judge to infer that any prejudice had been created anyway. In all the circumstances therefore, the Judge held that the claim of infringement of moral rights failed.
Why this matters:
This judgment makes it very difficulty to regard moral rights with any greater seriousness than before. There can be no doubt that there were flaws in the way that Mr Alcee's case was put and in which his evidence was presented, and it was clearly dangerous to resort to a position where one simply invited the Judge to infer prejudice from listening to the material before him. This was especially the case given that the meaning of much of the "new" content overlaid throughout the original track was difficult to understand. With all the difficulties involved in knowing precisely how to present evidence of reputation, of derogatory treatment or of prejudice and the expense and time of doing so, it is hardly surprising that claims of this kind have been thin on the ground so far. This case did not suggest that this situation will change.