Copyright Law And Who Is 100% That Author Of Lizzo’s Song

What is the practical difference between a joint work and a derivative work?

It all began with a tweet. On February 24, 2017, Mina Lioness posted on Twitter: “I did a DNA test turns out I’m 100% that b**ch.” Two months later, Melissa Jefferson, known professionally as Lizzo, together with Justin Raisen, Jeremiah Raisen, Yves Rothman and Jesse St. John collectively worked on a demo song called “Healthy” that addresses “health, sobriety and wellness.” St. John showed the group a meme based on Lioness’ tweet and they decided to incorporate it into the second verse of the song: “I just did a DNA test turns out I’m 100% that b**tch, even when I’m holistic / gotta keep it realistic / I could be, guest-listed / but I’d rather be home, get rest, not twisted.” “Healthy” was never released.

In June 2017, Lizzo incorporated “I just took a DNA test, turns out I'm 100% that b**ch” into “Truth Hurts” a song about her romantic problems. The line became her signature catchphrase. Lizzo explained to Billboard that “she had received a voicemail from a guy telling her not to call him anymore because he was getting back together with his ex. So, Lizzo blocked him and went to the studio, telling producer Ricky Reed [about her breakup]. She noticed that as she was talking, Reed was scribbling something down. When she asked him what he was writing, he replied, ‘I hope you know you just wrote a song.’" Lizzo released “Truth Hurts” in September 2017, and initially credited herself, Reed, St. John, and Steven Cheung as songwriters (Lioness was subsequently credited as a co-writer of the song on October 23, 2019).

In 2019, nearly two years after its release, thanks to being featured in the Netflix NFLX film Someone Great and on TikTok, “Truth Hurts” became a so-called viral sleeper hit and reached number one on Billboard’s Hot 100 list, where it remained for seven nonconsecutive weeks, and achieved hundreds of millions of plays across several music streaming services. That is when Justin Raisen, Jeremiah Raisen and Yves Rothman (the "Counterclaimants") started claiming ownership rights in “Truth Hurts.” In response, Lizzo filed an action for “declaratory relief” essentially asking a court to declare that the Counterclaimants have no ownership rights in her song. The Counterclaimants then counterclaimed that Lizzo “copied substantial, significant original creative expression from ‘Healthy’ to create ‘Truth Hurts.’”

Multiple Choice Question

In adjudicating the parties’ dispute:

(a)   Should “Truth Hurts” be regarded as a continuation of the parties’ work on “Healthy” through a process of revising “Healthy” until the end result became “Truth Hurts?”

(b)   Should “Healthy” be regarded as a complete and final work with “Truth Hurts” being deemed a derivative of “Healthy” that the Counterclaimants had no involvement in creating?

(c)    Should “Healthy” and “Truth Hurts” be regarded as two separate works that are only connected because they share a line from a tweet written by an unrelated third party to this dispute?

According to U.S. copyright law, what are the implications of each of the foregoing answers?

If “Truth Hurts” is regarded as a continuation of the parties’ work on “Healthy” through a process of revising “Healthy” until the end result became “Truth Hurts,” the Counterclaimants would be (i) deemed co-authors and co-owners of the song as a joint work, (ii) entitled to the economic benefits of co-owning the song, and (iii) able to bolster their resume and take professional credit as co-writers of a Grammy-winning multi-platinum hit.

If “Healthy” is regarded as a complete and final work and “Truth Hurts” is deemed a derivative of “Healthy” that the Counterclaimants had no involvement in creating, the Counterclaimants would be deemed co-authors and co-owners of “Healthy,” but not “Truth Hurts.” Lizzo would be entitled to use “Healthy” as she deems appropriate to incorporate into “Truth Hurts” and otherwise. She would not need the Counterclaimants’ permission to do so because an author cannot infringe her own work. However, Lizzo would have to compensate the Counterclaimants for use of the original work in her derivative work. So the Counterclaimants would not be able to bolster their resume and take professional credit as stated above but they would receive a portion of the proceeds from any sale, license or other use of “Truth Hurts.”

Of course, if “Healthy” and “Truth Hurts” are regarded as two separate unrelated works, the Counterclaimants would not receive any ownership, writing credit or share of the proceeds of “Truth Hurts.”

In the ongoing dispute, Melissa Jefferson v. Justin Raisen, et al., Lizzo asked the court to dismiss most of Counterclaimants’ complaint for failure to state a claim upon which relief can be granted. As required by law, in evaluating Lizzo’s motion, the court accepted all the Counterclaimants’ factual allegations as true. Without deciding who, in fact, authored the songs at issue, the court determined that, based on their pleadings, the Counterclaimants alleged that the parties collaborated on, and finalized, one song—“Healthy”—before Lizzo allegedly copied portions of that song to make “Truth Hurts.” Consequently, as a matter of law, Counterclaimants did not allege any ownership interest in “Truth Hurts” and, at most, it is a derivative work of “Healthy.” The court then granted the Counterclaimants’ leave to amend their counterclaims to allege new and different facts.

According to Counterclaimants’ lawyer, Lawrence Iser, “The case involves an important issue for all producers and songwriters: What recourse is there when an artist uses your work but fails to give you credit? We have submitted amended counterclaims that explain that the songwriting sessions with Lizzo—which took place in our clients’ studio and included, among other things, the DNA/100% lyric—culminated in the Grammy award winning song. We know the truth may hurt, but Lizzo should not be allowed to deny our clients’ substantial contributions to the song.” Lizzo’s lawyer, Cynthia Arato, did not immediately respond to a request for comment but Lizzo’s response to the amended complaint is due to be filed on Thursday. I suspect she will essentially say the truth may hurt, however, apart from Lioness’ line, the two songs have nothing to do with each other.