Pink Is The New Black: Rap Artist Wiz Khalifa Accused Of Turning 'Pink And Yellow' Into 'Black And Yellow'

from the or-maybe-black-is-the-new-pink dept

It’s a story as old as this type of worn-out intro itself: musician crafts hit tune, sells millions of copies, leans back on his mattress stuffed with money and… gets sued for ripping off another artist. There’s nothing like the possibility of a nice, fat settlement to lure musicians out of the woodwork (or wherever it is that musicians sequester themselves) and into the nearest lawyer’s office (quite possibly decorated with expensive woodwork).

In most cases, a newer, more successful artist finds themselves staring at a stack of legalese presented on behalf on an artist who has fallen off the public radar (see The Chiffons vs. George Harrison; the Rolling Stones vs. the Verve) or an artist whose niche appeal has failed to reach multi-platinum level (see Joe Satriani vs. Coldplay) or (rarely) both (see Cat Stevens vs. Coldplay).

Most of these suits are hot established-artist-on-established-artist action, but in rare cases, the plaintiff is an artist whose fanbase has yet to reach the outer edges of his extended family (see also Some Guy vs. Coldplay). This lawsuit is one of the latter. Scott Mervis of the Pittsburgh Post-Gazette has the details:

In a suit filed in U.S. District Court in Philadelphia on Dec. 30, he (Max Gregory Warren, a.k.a. Maxamillion) claims that Khalifa’s multi-platinum, chart-topping, Grammy-nominated hit “Black and Yellow” is “substantially similar” to his 2008 song “Pink N Yellow.” Other than talking about cars and jewels, which are common hip-hop themes, there’s little similarity to the lyrics, the beat, even the melody of the chorus, until you hit the repetition of the words “and yellow.”

Since “substantially similar” is in the ear of the legal beholder, this determination will be left up to the courts should it go that far. But Maxamillion’s claim that Wiz Khalifa ripped off his song strongly implies that Khalifa, at some point, heard the track and decided to make his own version. But the likelihood of Maxamillion’s (not to be confused with Chicago rapper Maxamillion) track making its way into Khalifa’s ears seems, well, unlikely:

He and the song “Pink N Yellow” appeared on a 2008 mixtape by Ase & Zee — “Two Flows, More Doe.” If you Google “Two Flows, More Doe” the search results involve flowcharts, air filters and text flows.

A search for Maxamillion brings up results not about Mr. Warren but about the veteran Chicago artist. Mr. Warren has 32 Twitter followers under @Maxamilli317.

Young Ase’s MySpace page features five songs, none of which has more than 56 plays. A video Young Ase posted in October has 88 views.

So, how exactly would this track have made its way onto Khalifa’s radar? Maxamillion’s lawyer has a theory:

Mr. Warren’s Philadelphia-based lawyer James A. Cosby commented, “For now I can just say that Max has been writing songs, performing and recording for a number of years.”

Well, it’s a theory alright but I’m not sure if it’s much of a legal argument. There are plenty of established artists who have been toiling away for decades without ever reaching my ears. Trying to establish the probability that Khalifa heard Max’s track and knowingly infringed on his work is going to be tough for an artist whose popularity seems to extend all the way to end of his block.

University of Pittsburgh law professor Michael Madison indicates that it takes a lot more than a “I made it first” statement to convince the courts that this is a case of willful infringement.

According to Mr. Madison, “The classic way [to prove an artist has heard a song] is that to say it was on the radio or some music channel or through iTunes. The second way is chain of custody: The mixtape got handed around the club somewhere, or one of Wiz’s people knows someone at the club, so he got handed a physical copy, or maybe someone mailed the mixtape to someone’s people. That kind of argument shows up a lot of the time in movie cases. You have to be pretty detailed, but once in a great while you can actually show chain of custody.”

This is actually Max’s “Plan B” for monetizing the previously under-everyone’s-radar “Pink and Yellow.” He originally approached Atlantic Records at the beginning of 2011 only to be rebuffed (presumably with statements like, “I’m sorry, who are you?” “How did you get in here?” and “My receptionist must have taken an early lunch…”). Of course, Max may just be looking for a chunk of “shut up and go away” cash as these lawsuits rarely make their way to court, which I suppose is a “business model” of sorts, but not a very sustainable one.

But why not make your own call? LaGenteBravaRp has handily laid out both tracks back-to-back for comparison, allowing you to hear Maxamillion’s track for the first time and Khalifa’s track for the millionth.

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Comments on “Pink Is The New Black: Rap Artist Wiz Khalifa Accused Of Turning 'Pink And Yellow' Into 'Black And Yellow'”

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MrWilson says:

Re: Re:

He needs to sue Muddy Waters’ estate since clearly Coldplay ripped off Joe Satriani who ripped off the Verve who ripped off the Rolling Stones who ripped off Led Zeppelin who ripped off Muddy Waters who traveled into the future via his time machine and ripped off the most original musical genius…wait, what’s the guys name again?

Ninja (profile) says:

If the damned copyright laws really recognized fair use and punished bogus claims we’d see less of this type of stupidity and taxpayer money funneled to waste.

And we could also have less lazy moronic @$$ess like, what was it again, Maximillian?, trying to earn money by doing nothing. Seems Max didn’t put much effort into building a fanbase other than his grandma, did he?

And while we are at that we could have less idiots from the entertainment industry lobbying the Govt for more and more draconian insane laws.

Markus Hopkins (profile) says:

I Can Always Tell A "Tim" Article

Tim, I generally enjoy the writing in your articles, but almost invariably, if I start reading a techdirt post and encounter a passage that reads like the author was trying way too hard to be witty, when I go back to check the by line it’s “Tim Cushing” (of course, when it reads like a rant, it’s Marcus Carab, but that’s a different topic). You don’t need to try so hard, your writing is good anyway, and these passages just make me want to stop reading. For reference, this time it was this section that grated:

“There’s nothing like the possibility of a nice, fat settlement to lure musicians out of the woodwork (or wherever it is that musicians sequester themselves) and into the nearest lawyer’s office (quite possibly decorated with expensive woodwork).”

Markus Hopkins (profile) says:

Re: Re: I Can Always Tell A "Tim" Article

Since no one else has noted my comment in any way, I’m inclined to agree with you. I’m going think about keeping thoughts about things I don’t actually do myself, to myself.

And sadly, that also means I’ve probably just crossed into this territory:

Anonymous Coward says:

You cannot call Satriani a niche artist. He’s arguably more important than Coldplay whom he sued. His music will never be mainstream, he doesn’t write for the masses. But, if you’ve listened to music in the last 10 years you’ve ran into him. He wrote the book, literally, on modern guitar composition. You simply cannot be a professional guitar player, of any genre, without spending time studying his work.

Capitalist Lion Tamer (profile) says:

Re: Re:

You cannot call Satriani a niche artist.

The post up above says otherwise:

an artist whose niche appeal has failed to reach multi-platinum level (see Joe Satriani vs. Coldplay)

You simply cannot be a professional guitar player, of any genre, without spending time studying his work.

This is true. I cannot. No guitar skill whatsoever, not even of the color-coded button-mashing type.

Old Man in The Sea says:

What was that UGLY noise?

I concur – but cannons at 100 paces on an uninhabited island and leave the winner there. Both were awful – very different, but horrible. I’m no muso, in fact I can’t even hold a tune (you’d shudder if you heard me), but I do know that every musician takes his or her inspiration by what has gone before them, some use biological influences, some use mechanical influences and some use both. Some are successful and some fail and each in turn will influence someone else till no-one can tell who came up with the original idea.

I know a man who for a joke came up with a stupid story when he was at uni, based on other stupid stories he had heard before. He would tell it the same way each time. Some years later he was at a party in a completely different city amongst completely different people and someone there recounted that same story (apparently word for word) – all he could do was laugh as he knew no-one would believe him if he said it was the same story he told years before. No-one at the party knew where it had come from, they had just heard the story from some-one else.

We don’t live in isolation, yet our copyright and patent rules are based on the premise that we do. I have been reading some old stories (old SF) recently and it is amazing how often the two ideas (share what we know because it can develop simultaneously in multiple places vs theft of knowledge) come up in different stories.

In one, the sharing of ideas brings advancement and benefit to all, whereas in the other, it is control that is desired and the holding back of everyone else.

As has been pointed out many times by many other people, you cannot have stolen from you what you retain. The example I use it that you can steal someone’s reputation but you can’t steal an idea of theirs. Both are ephemeral but one you can take away and one you cannot.

Enjoy your day all. Time for the garden.

fairuse (profile) says:

OMG, When did hip-hop turn pop!

I pinched the bridge of my nose & closed my eyes and listened, I should say suffered through, both songs. The 1st song (pink/yellow: plaintiff) is 4 minutes of noise. The 2nd song (black/yellow: defendant) is a bit better.

Both songs exhibit standard pop music “canned” elements in the lead in, refrain, rhythm, and beat. There is no infringement on “pink/yellow” by “black/yellow”.

I usually don’t listen to pop music (yes, I consider Hip-Hop to be pop) but I see how these two songs are an easy target for a lawsuit; little known song gets free advertising, deep pockets payoff, and of course the timeless – jealous strike at the popular song.

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