June 7, 2011 – Cypress Hill, a popular hip-hop band, released a 1993 album that included a "looped" version of a song co-written by American blues singer Syl Johnson. Johnson sued Cypress Hill for copyright infringement, seeking $29 million, and recently lost his latest claim.

In the recent case of Johnson v. Cypress Hill, et al. [Johnson II], Nos. 08-3810, 09-2213 & 10-1733 (June 1, 2011), a panel for the U.S. Court of Appeals for the Seventh Circuit ruled against Johnson, concluding that res judicata barred his most recent claim.

A musical loop is a small section of sound repeated throughout a track. On its 1993 album “Black Sunday,” Cypress Hill used a musical loop on a song called “Interlude” (also called "Lock Down") from Johnson’s song entitled “Is it Because I’m Black,” originally released in 1969.

Johnson re-recorded the song in 1972 but it was not released in the United States. Johnson’s co-writer, Glenn Watts, obtained actual copyright protection of the words and music (composition) of the song in 2003, the year Johnson filed his first lawsuit against Cyprus Hill.

But Johnson lost on summary judgment. The district court concluded that Johnson’s 1969 recording, the one used by Cyprus Hill, was never registered in the copyright office.

Additionally, under the Copyright Act, sound recordings are not subject to copyright protection if registered before Feb. 15, 1972, the district court noted. At this point, Johnson asserted a claim under the composition copyright obtained in 2003, but the court said it was too late based on undue delay and the possibility of substantial prejudice to Cypress Hill.

After losing on summary judgment, Johnson filed a motion under Rule 60(b) of the Federal Rules of Civil Procedure, asking the court to vacate its summary judgment order on the basis that it did not have subject matter jurisdiction because Johnson never had a copyright on the 1969 recording. He then reasserted claims based on the 2003 composition copyright.

The court denied the motion and awarded Cypress Hill nearly $322,000 in attorneys’ fees and about $10,500 in costs.

In 2008, Johnson filed a state court action, reasserting a state law misappropriation claim that was asserted and denied in the previous federal lawsuit, as well as his copyright infringement claim under the 2003 composition copyright.

Cypress Hill removed the case to federal court, and moved to dismiss as barred by res judicata, which bars claims that are previously litigated on the merits. The federal district court dismissed the case, and Johnson appealed.

In Johnson II, Johnson argued that the district court lacked subject matter jurisdiction and did not have authority to enter summary judgment in favor of Cypress Hill on the merits. Thus, res judicata did not bar his new claims, Johnson argued.

However, the panel decision – written by Judge Terance Evans – concluded that Johnson’s subject matter jurisdiction argument fails under Reed Elsevier, Inc. v. Muchnick, 130 S.Ct. 1237 (2010), which held that copyright registration “is a precondition to filing a claim that does not restrict a federal court’s subject-matter jurisdiction.”

This led to the panel’s conclusion that Johnson’s claims were barred by res judicata because the district court properly ruled on the merits and “the facts in both claims are unquestionably identical” to the claims asserted previously.

In other words, Johnson could not “loop” his claims.