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Copyrights, Partying, and Bulls--t: Second Circuit Affirms Dismissal of Claim Against B.I.G.

Microphone with pop filter and headphones hanging up in the background.
By Laura Temme, Esq. on September 09, 2019 1:55 PM

The Second Circuit Court of Appeals recently upheld the dismissal of a claim by Abiodun Oyewole, a founding member of the spoken word/rap group Last Poets, that Biggie Smalls’ “Party and Bullshit” infringed the group’s copyright. The suit also included singer Rita Ora, who had licensed the use of the phrase “party and bullshit” from B.I.G.’s estate for her single “How We Do (Party) in 2012,” as a defendant. The case pits two vastly different musical works - created decades apart - against each other.

All focused on just three words.

Party, or Bullshit?

In 1968, Last Poets released “When the Revolution Comes,” a poem that warned of a coming revolution for African Americans. The song ended with:

“But until then you know and I know n*****s will party and bullshit and party
 and bullshit and party and bullshit and party and bullshit and party
Some might even die before the revolution comes.”

The song depicts a violent revolution leading to empowerment of black Americans, challenging people to take action rather than waste time with “party and bullshit.”

In 1993, Christopher Wallace (a.k.a. The Notorious B.I.G. or “Biggie Smalls”) released his song “Party and Bullshit,” which repeats the phrase ‘party and bullshit’ nine times in its chorus. In contrast to Last Poets’ message, Biggie’s “Party and Bullshit” focused on his lifestyle as a hip-hop artist, with lyrics such as:

“I was a terror since the public school era
Bathroom passes, cuttin’ classes, squeezing asses
Smoking blunts was a daily routine
Since thirteen, a chubby n***a on the scene.”

These two vastly different messages proved to be the lynchpin of B.I.G.’s defense, which relied on the doctrine of fair use.

Bullshit, or Fair Use?

Sampling is an incredibly common practice in the music industry. When Vanilla Ice released “Ice Ice Baby” in 1990 with a baseline pretty obviously lifted from Queen and David Bowie’s “Under Pressure,” threats of litigation sparked conversations about protecting artists’ creative interests through copyright law. And when it comes to balancing that protection against concerns of stifling creativity, no defense compares to the doctrine of fair use.

Applying the four fair use factors, the District Court concluded that because “Party and Bullshit” transformed the purpose of the phrase from one condemning the practice of partying and bullshitting to glorifying those activities, a transformation had taken place. Accordingly, the court found that the factors weighed in favor of B.I.G. and dismissed Oyewole’s claims.

And if you don’t know, now you know.

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