Tupac Song Rights Suit Turns on High Court ‘Discovery Rule’ Case

Rap producer Terence Thomas filed his lawsuit over rights to Tupac Shakur’s 1990s hit song “Dear Mama” right as the US Supreme Court began to contemplate opening the door wide for copyright holders who didn’t know their rights were being violated for years.

Thomas, known as DJ Master Tee, said in his November lawsuit—filed nearly three decades after Tupac’s single was released—he was unaware until this year that producer Tony D. Pizzaro allegedly usurped credit and royalties for his part helping Shakur craft “Dear Mama.” That suit was filed just weeks after the justices agreed to hear Chappell Warner Music Inc. v. Nealy, a separate dispute over alleged infringement by Chappell Warner that Sherman Nealy—also a rap producer—said he was unaware of because it occurred while he was in prison.

The two lawsuits originated in jurisdictions with opposite circuit court precedent on whether the “discovery rule” can toll copyright law’s statute of limitations. The US Court of Appeals for the Eleventh Circuit sided with Nealy and embraced the rule, which holds the clock to sue starts when a plaintiff discovers infringement—or reasonably should have. The US Court of Appeals for the Second Circuit, whose precedents govern Master Tee’s suit, rejects the notion of any damages rooted outside the Copyright Act’s three-year statute of limitations.

The circuit split, which also divides the entertainment hotbeds of Los Angeles and New York, creates a difficult question with uncomfortable hypotheticals on either side. Chappell Warner warns that the discovery rule eviscerates the statute of limitations by allowing unlimited damages for decades-late allegations when evidence and witnesses have been lost. But Nealy points to the inequity of allowing infringers immunity if they can hide their perfidy for three years.

Master Tee’s complaint against Pizzaro and various music labels launched a test case for the high court’s decision before the justices even received merit briefs in the dispute. The Nov. 18 complaint in the US District Court for the Southern District of New York said it wasn’t until a 2023 FX Networks LLC docu-series aired that Master Tee fully realized the extent to which credit and revenue had been denied despite evidence Shakur, who performed under the name 2Pac, recognized Master Tee’s contribution.

The nature and timing of the complaint indicated Master Tee’s counsel was well aware of and hoped to benefit from the case before the high court, said Samuel D. Lipshie, a copyright and entertainment attorney at Bradley Arant Boult Cummings LLP.

“I don’t believe in coincidences very often. It fits in there perfectly after” the Supreme Court granted Warner Chappell’s petition, Lipshie said. “It is an example of the type of litigation some want to curtail. It exemplifies some of the problems and policy issues with allowing unlimited look-back for damages and effectively ignoring the statute of limitations.”

Kevon Glickman, Master Tee’s attorney, said without the Supreme Court potentially sanctioning the discovery rule Master Tee wouldn’t have been able to bring his case.

“It comes down to whether a jury would think it’s reasonable for a New York City bus driver to realize he wasn’t properly credited,” Glickman said, referring to Master Tee’s job for the last 26 years.

Caught Unaware

Master Tee said he collaborated with Shakur to create “Dear Mama” in 1993. His complaint included a list allegedly handwritten by Shakur denoting “Dear Mama” as “produced by Master Tee,” along with a link to an interview in which Shakur said “Master Tee gave me the beat.”

Pizzaro, the music producer, would claim to be involved with much of Shakur’s work when he only contributed to the song “High Til I Die” and a 2007 “Dear Mama” remix, according to the complaint. It alleges Pizzaro has no evidence except his word that he contributed to the original “Dear Mama.” The song was released on 2Pac’s 1995 album “Me Against the World,” and the copyright registered that year lists Pizzaro—not Master Tee—alongside Shakur, who was murdered a year later.

Master Tee said he immediately secured counsel after seeing the 2023 “Dear Mama” series that debuted in April and was aired by co-defendants Walt Disney Co., Hulu, and FX. He then learned the extent to which he was “duped by a skillful campaign of deception by Pizarro,” the suit said. He also named Interscope Records Inc., Universal Music Inc., and other labels as defendants for allegedly conspiring to exclude him from benefiting from his contribution.

Pizarro and Interscope didn’t return messages seeking comment.

Master Tee said he is receiving radio royalties for “Dear Mama” from a performance rights organization. But as a “relatively unsophisticated producer,” he said he didn’t realize the royalties were much less than he would’ve earned with proper credit for composition rights as a co-creator. Makers of a 2017 film “All Eyez on Me” about Shakur properly secured a synchronization license that recognized his rights, he added.

Glickman said nothing on the statements Master Tee got from music licensing company Royalty Network indicated specifics that might have alerted his client to being shortchanged. Lipshie agreed music royalty statements can be hard to decipher.

“You can’t tell from royalty statements what you get, what is being paid for by whom for what,” he said. “Publishing companies are the only people who know how to read them.”

Even if the high court endorses the discovery rule, Master Tee—and Nealy—would likely have to battle claims they should have discovered the alleged transgression earlier.

“The test is when he learned, or should he as a reasonable person have learned, that his rights were being violated,” said David Gold, a copyright and entertainment attorney at Cole Schotz PC. “That’s where the more interesting evidence and discovery comes in. How do you determine he knew or should have known? How do you prove that?”

‘Winners and Losers’

Another question is whether it should matter when an alleged victim learned about infringement. Some, like Warner Chappell, argue a discovery rule would be harmful to the industry because the value of works could be distorted by uncertainty, which could even chill the creation of collaborative works given the potential for allegations of slights—real or imagined—decades in the future.

“Just like any property owner you want to have confidence in what it is you own and certainly over how it will be treated,” copyright and entertainment attorney Allen Secretov of Kinsella Holley Iser Kump Steinsapir LLP said.

Lipshie noted the axiom that “there’s no right without a remedy.” Secretov countered that parties like Master Tee can still claim damages from the most recent three years of ongoing infringement. It’s “unfortunate” someone who was wronged can’t necessarily reach into the “heyday” of their work, he said, but “for the rule to be made workable there have to be winners and losers.”

Letting plaintiffs simply say “I didn’t know” and imposing a high bar for defendants to show they should have would “encourage lawsuits that would be questionable or frivolous,” copyright and entertainment attorney E. Scott Johnson of Baker Donelson Bearman Caldwell & Berkowitz PC said.

“There has to be some real conscientious effort to weed out cases that don’t meet the standard,” Johnson said.

‘Middle Ground’

The Supreme Court has conspicuously avoided taking a stance on the discovery rule in copyright cases. A footnote in Justice Ruth Bader Ginsburg’s 2014 majority opinion in Petrella v. MGM acknowledged some circuits have adopted it, and said “we have not passed on the question.” She went on to rule that an heir to an alleged rightsholder of 1980 Robert De Niro boxing movie “Raging Bull” could sue for infringement covering the three years preceding the suit.

Despite the explicit non-stance, the opinion has been interpreted by courts to support both answers for the discovery rule question. Lipshie said he believes the justices will now “come down with a middle ground.”

“They clearly want to get rid of this overhang from the ‘Raging Bull’ case. There’s something in it for everyone,” Lipshie said. “They’re going to have to come up with an opinion that settles the circuit split and causes there to be a uniform approach to the way they handle cases.”

He said one path could require plaintiffs to “put up or shut up earlier in the lawsuit” to explain the lack of awareness. Another possible outlet for plaintiffs absent a discovery rule could be fraud—the Supreme Court has held that fraudulent concealment can override a statute of limitations, according to a friend-of-the-court brief in Nealy’s case by law professor Tyler T. Ochoa of Santa Clara University.

Master Tee’s complaint made for a sympathetic case on the discovery rule, Gold said, but the statute of limitations puts some responsibility on the plaintiff.

“It’s the intersection between a really cool fact pattern and a topic about to be decided at the highest level,” Gold said.

The case is Thomas v. Pizarro, S.D.N.Y., No. 23-10159.