Producers Joshua Fraustro and Miguel Aguilar, who go by Kemika1956, are suing Cardi B because in their estimation her 2024 Top 10 hit, “Enough (Miami)” song, sounds like their “Greasy Frybread,” which was placed in the FX series, Reservation Dogs. They’re suing Cardi, along with “Enough” producers James D. Steed (DJ Swanqo) and Joshua Parker (OG Parker) and they’re even claiming vicarious infringement on the part of Atlantic Records which they feel was in a position to prevent the infringement and failed.
The complaint may be the least detailed and specific I’ve ever read. The claim is that “Defendant Cardi B, along with other Defendants, has used the song in her new album without permission.”
That’s all we get, and we’re left to figure out what they mean by “used.”
Here are the respective tracks: And before I get further into how silly this lawsuit is, let me first say, I’d much rather listen to Greasy Frybread than to Enough, and Reservation Dogs looks cool too.
Here ya go. This doesn’t count against my three minutes. Listen to only a few seconds if you want — it’ll make little difference.
Might become my pizza dough-making jam for the rest of the summer.
And here’s Cardi B’s Enough… (This doesn’t count against my three minutes either. A few seconds will suffice, anything more is on you.)
We don’t need the complaint to tell us what they’re suing over. It’s the bass and kick.
Since it’s so obvious, what good could possibly come from not identifying these elements in the complaint?! Worst case, this gets tossed for a lousy pleading. (IANAL of course.) Best case, what? Do you get to fix it and spend some more time on this? I suppose if Rolling Stone, Billboard, and The Source all write articles about your Greasy track, and will do it again through a few unnecessary rounds? That might sound good, but what if your overbroad overvague everything gets you hit with the attorney costs?
Just ask the right question.
They do though.
They’re both basic trap beats using either a tuned kick sound or a bass and kick layer playing around at the Phrygian sort of thing that reminds me of the Metallica lawsuit farce from twenty years ago in which some clever person fabricated a story about Metallica claiming ownership of E’s going to F’s.
The “get to the point” question is often: “Are the musical elements purportedly shared by these two works original to and protectable by the plaintiff?” And here the answer is either “no” or “hardly at all” pedantically leaving room for the latter (rant coming now) because a modicum of creativity is supposedly protectable, (thanks a lot, Feist) and one can find a defensible modicum if one looks hard enough.
The “modicum of creativity” standard increasingly seems to be the bar so many of the post-Blurred Lines claimants are content to surmount. To wit, sorta:
In Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340
— The complaint from the case at hand.
(1991), the Supreme Court held that originality and creativity are the touchstones of copyright
protection. Plaintiffs’ work meets these criteria and is thus protected.
Yeah, but not the notes actually found in Cardi’s. So….
After we answer the first question with “hardly at all,” we then ask, “Will I find this element exactly the same in both works?” This is the real bar to surmount. In cases of “thin copyright” where the allegedly shared element is barely protectable if at all, virtual identity is the required level of similarity. And since here the answer is no, they’re not nearly identical, that’s the whole ballgame.
We’re well under three minutes. We’re probably under thirty seconds if I don’t stretch this silliness into a page of links.
The plaintiffs cannot claim a monopoly on those two bass notes, or the simple clave rhythm, and after that, these two extremely simple grooves have almost nothing in common. Even while the plaintiff’s groove has a couple of different melodic and rhythmic presentations of this intentionally sparse musical thought; so does Cardi’s; and none match!
The takeaway, not for the first time, is that these are not words my would-be plaintiff clients want to hear” “Sparse,” “simple,” “brief,” “short,” “commonplace,” “unprotectable,” “unoriginal,” and “not nearly identical.”
There’s a catchy acronym out there that encompasses these cliche musicological frailties; I’m going to find it, and then I’m going to blast it over every similarly ridiculous trap music lawsuit that comes down the pike because it would be endlessly applicable.
