Lil Peep and XXXTENTACION Sued from the Grave
On September 19, 2021, Richard Jaden Hoff, also known as K.R.i.O., filed a lawsuit against late artists Lil Peep and XXXTENTACION, whose lives were tragically cut short in 2017 and 2018, for their posthumous collaboration song “Falling Down”.[1] Hoff claims that Lil Peep, XXXTENTACION, and the producers who helped create the song used a guitar riff from his song “Under My Breath, specifically that the riff in question is looped, sped up, filtered and equalized.[2] Hoff does note Lil Peep and XXXTENTACION altered the riff, yet he alleges the riff remained substantially similar to the guitar part in “Under My Breath” and a “blatant ripoff.”[3] Hoff stated that he posted his song “Under My Breath” on SoundCloud [4] in June 2018, with Falling Down’s release three months later containing the alleged riff.[5]
What Hoff seems to have blatantly mistaken when filing this lawsuit is that he filed it as a personal suit against Lil Peep and XXXTENTACION, not against their estates.[6] Hoff references the two artists as living and lists them as current residents of California.[7] Suing one personally as opposed to suing their estate can have detrimental effects to the lawsuit such as an outright dismissal. An individual and an estate cannot exist contemporaneously and should be considered two distinct entities.[8] But, this issue in of itself has been a hot topic of debate, some courts believe that misnaming a deceased party instead of an estate is a misnomer and should be allowed to be amended in a supplemental pleading.[9] Other courts believe that if the Plaintiff should have reasonably known that the defendant was deceased the case should be dismissed.[10] If Hoff’s case is dismissed, he will likely be unable to file the case again under the proper party. This is because under copyright law, the statute of limitations (i.e. time you have a valid legal claim) runs for three years from when the alleged misuse occurred.[11] Since the song was released on September 19, 2018 it is likely that the court will dismiss this case if an amendment to the original complaint is not granted.
The court here is likely to take the latter of the two interpretations because at the time of the release, “Falling Down” was notoriously known as a “posthumous hit” for both artists.[12] Lil Peep had already been deceased for a year while XXXTENTACION was murdered just five days before Hoff released his song “Under My Breath.”[13] Furthermore, “Falling Down” is not the original version of the song released to the public.[14] Back in 2017, the song was released as “Sunlight On Your Skin” and co-written by artist ILOVEMAKONNEN, having very little sound variations from its 2018 re-release.[15] So, the original 2017 song was published a full year before the release of Hoff’s “Under My Breath”.[16]
Lawsuits like this are not uncommon within the music industry – Juice WRLD (another deceased artist) also was served with a posthumous copyright lawsuit stating he stole “melodic elements” from another artist.[17] Sampling is quite common and has been regularly done by artists since the early 1900’s.[18] According to U.S. copyright law if you alter a sample so that an average listener cannot hear any substantial similarities between your work and the sample, there is no violation of the law.[19] Musicians such as Lil Peep and others could be inspired by a certain melody that they take it and turn it into something radically different.[20] Thus, Hoff’s claim is likely to fail, given the sample is a small portion of the allegedly copying song as a whole and Hoff even admits the sample has been transformed, two factors that strongly favor a defense of fair use.[21] But because the guitar riff in question cannot be indisputably distinguished within the song “Falling Down”, and the original release of the song predates Hoff’s song, it is likely that this case will be tossed out before it can move any further forward.[22]
When one person sues another, it is common to pursue a lawsuit upon the belief of good faith, or in other words behaving honestly and frankly, without any intent to defraud. What Richard Hoff attempts to establish here is a frivolous claim based on a guitar rift used within Lil Peep and XXXTENTACION’s song that does not sound similar at all to the one used in his song. Due to the reasons mentioned prior along with the riff not sounding anything like the riff from “Falling Down” the court may seek to sanction the representing attorney for the frivolous lawsuit. While it is not clear what jurisdiction this claim is being brought in, under Rule 11 of the Federal Rules of Civil Procedure the presiding judge can sanction the attorney to be fined or be reeducated on the area of law he is attempting to bring a claim in.[23] Lil Peep and XXXTENTACION created their music to help heal those struggling with depression and anxiety. While their physical form may be gone, their music continues to live on. It is completely intolerable to disturb their creative genius to try to profit off the dead. Hopefully going forward this case will set precedent that the court will not tolerate those trying to make quick money off of bad faith copyright claims.
Footnotes
