FAIR USE: Music Sampling
IVAN HOFFMAN, B.A., J.D.
There is no fixed amount of permitted usage that is set forth in the fair use statute and the cases do not define any fixed amount of usage. For those who continue to believe in the absolutely false and incorrect belief that there is any fixed amount of usage that will be acceptable under the fair use doctrine (read the numerous articles on my site dealing with fair use but especially “Fair Use: Further, Further Issues.” Click on “Articles for Writers and Publishers”), a case from the Sixth Circuit should give you nightmares.
In Bridgeport Music, Inc. et. al. vs. Dimension Films et. al., the Court found that the use of 3 notes, lasting 2 seconds, from a sound recording called “Get Off Your Ass and Jam” (“Get Off” in the opinion) in the track called “100 Miles and Runnin” (“100 Miles” in the opinion) contained in the sound track of a motion picture called “I Got the Hook Up” (“Hook Up” in the opinion) was not fair use. In the words of the Court:
The Court summarized the basis for the trial court’s decision that there was no likelihood that the plaintiff would prevail on their claim of copyright infringement.Westbound’s claims are for infringement of the sound recording “Get Off.” [footnote omitted] Because defendant does not deny it, we assume that the sound track of Hook Up used portions of “100 Miles” that included the allegedly infringing sample from “Get Off.” The recording “Get Off” opens with a three-note combination solo guitar “riff” that lasts four seconds. According to one of plaintiffs’ experts, Randy Kling, the recording “100 Miles” contains a sample from that guitar solo. Specifically, a two-second sample from the guitar solo was copied, the pitch was lowered, and the copied piece was “looped” and extended to 16 beats. Kling states that this sample appears in the sound recording “100 Miles” in five places; specifically, at 0:49, 1:52, 2:29, 3:20 and 3:46. By the district court’s estimation, each looped segment lasted approximately 7 seconds.
In other words, the appellate Court found that the standard that might otherwise be applied in determining whether a use was a fair use, a standard that looked to the quantity of material taken from the protected work, was not applicable to the taking of material from a protected sound recording. Keep in mind that whenever there is a use of a sound recording, if both the sound recording and the musical composition recorded on the sound recording are protected by copyright, there are 2 sets of rights that have to be determined. (Read “The Use of Music On A Multimedia Web Site.”) In this case, the composition had been licensed.In granting summary judgment to defendant, the district court looked to general de minimis principles and emphasized the paucity of case law on the issue of whether digital sampling amounts to copyright infringement. Drawing on both the quantitative/qualitative and “fragmented literal similarity” approaches, the district court found the de minimis analysis was a derivation of the substantial similarity element when a defendant claims that the literal copying of a small and insignificant portion of the copyrighted work should be allowed. After listening to the copied segment, the sample, and both songs, the district court found that no reasonable juror, even one familiar with the works of George Clinton, would recognize the source of the sample without having been told of its source. This finding, coupled with findings concerning the quantitatively small amount of copying involved and the lack of qualitative similarity between the works, led the district court to conclude that Westbound could not prevail on its claims for copyright infringement of the sound recording
Westbound does not challenge the district court’s characterization of either the segment copied from “Get Off” or the sample that appears in “100 Miles.” Nor does Westbound argue that there is some genuine dispute as to any material fact concerning the nature of the protected material in the two works. The heart of Westbound’s arguments is the claim that no substantial similarity or de minimis inquiry should be undertaken at all when the defendant has not disputed that it digitally sampled a copyrighted sound recording. We agree and accordingly must reverse the grant of summary judgment. [emphasis added]
The Court took care to state that this was a case of a claimed infringement of a sound recording, which is a different standard than a case involving the claimed infringement of a musical composition. The Court stated:
In a footnote, the Court stated:1. The analysis that is appropriate for determining infringement of a musical composition copyright, is not the analysis that is to be applied to determine infringement of a sound recording. We address this issue only as it pertains to sound recording copyrights. [footnote omitted]
5. Because of the court’s [i.e. the trial court] limited technological knowledge in this specialized field, our opinion is limited to an instance of digital sampling of a sound recording protected by a valid copyright. If by analogy it is possible to extend our analysis to other forms of sampling, we leave it to others to do so. [emphasis added].
7. The music industry, as well as the courts, are best served if something approximating a bright-line test can be established. Not necessarily a “one size fits all” test, but one that, at least, adds clarity to what constitutes actionable infringement with regard to the digital sampling of copyrighted sound recordings.
The Court quoted the provisions of section 114 (b) of the copyright law, which contains some specific limitations on the rights of copyright in sound recordings. (A “phonorecord” is a sound recording in copyright law language.)“In most copyright actions, the issue is whether the infringing work is substantially similar to the original work. . . . The scope of inquiry is much narrower when the work in question is a sound recording. The only issue is whether the actual sound recording has been used without authorization. Substantial similarity is not an issue . . . .” Bradley C. Rosen, Esq., 22 CAUSES OF ACTION § 12 (2d ed. 2003).
The Court, in a footnote, further explained the reasons for treating sound recordings differently than the underlying compositions. The Court stated in part:Section 114(b) states:The Court went on to state:(b) The exclusive right of the owner of copyright in a sound recording under clause (1) of section 106 is limited to the right to duplicate the sound recording in the form of phonorecords or copies that directly or indirectly recapture the actual sounds fixed in the recording. The exclusive right of the owner of copyright in a sound recording under clause (2) of section 106 is limited to the right to prepare a derivative work in which the actual sounds fixed in the sound recording are rearranged, remixed, or otherwise altered in sequence or quality. The exclusive rights of the owner of copyright in a sound recording under clauses (1) and (2) of section 106 do not extend to the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording. [emphases added. Balance of quote omitted as not relevant to the within article.]Section 114(b) provides that “[t]he exclusive right of the owner of copyright in a sound recording under clause (2) of section 106 is limited to the right to prepare a derivative work in which the actual sounds fixed in the sound recording are rearranged, remixed, or otherwise altered in sequence or quality.” In other words, a sound recording owner has the exclusive right to “sample” his own recording. We find much to recommend this interpretation. [footnote omitted]
To begin with, there is ease of enforcement. Get a license or do not sample. [emphasis added] We do not see this as stifling creativity in any significant way. It must be remembered that if an artist wants to incorporate a “riff” from another work in his or her recording, he is free to duplicate the sound of that “riff” in the studio. Second, the market will control the license price and keep it within bounds. [footnote omitted] The sound recording copyright holder cannot exact a license fee greater than what it would cost the person seeking the license to just duplicate the sample in the course of making the new recording. Third, sampling is never accidental. It is not like the case of a composer who has a melody in his head, perhaps not even realizing that the reason he hears this melody is that it is the work of another which he had heard before. When you sample a sound recording you know you are taking another’s work product.
This analysis admittedly raises the question of why one should, without infringing, be able to take three notes from a musical composition, for example, but not three notes by way of sampling from a sound recording. Why is there no de minimis taking or why should substantial similarity not enter the equation. [footnote omitted] Our first answer to this question is what we have earlier indicated. We think this result is dictated by the applicable statute. Second, even when a small part of a sound recording is sampled, the part taken is something of value. [footnote omitted] No further proof of that is necessary than the fact that the producer of the record or the artist on the record intentionally sampled because it would (1) save costs, or (2) add something to the new recording, or (3) both. For the sound recording copyright holder, it is not the “song” but the sounds that are fixed in the medium of his choice. When those sounds are sampled they are taken directly from that fixed medium. It is a physical taking rather than an intellectual one.
The Court recognized that it was creating a new rule, one without judicial precedent. The Court stated:It has been suggested that the strong protection implied by the foregoing provisions could be mitigated by a judicially applied standard which permits some degree of de minimis copying or copying where the sampled portion of the resulting work is not substantially similar to the copied work. For example, a court could determine that the taking of a millisecond of sound from another’s copyrighted recording, or the taking of a more extensive portion that has been modified to the point of being completely unrecognizable or impossible to associate with the copied recording, does not constitute infringement. It is believed, however, that the courts should take what appears to be a rare opportunity to follow a “bright line” rule specifically mandated by Congress. This would result in a substantial reduction of litigation costs and uncertainty attending disputes over sampling infringement of sound recordings and would promote a faster resolution of these disputes. AL KOHN & BOB KOHN, KOHN ON MUSIC LICENSING 1486-87 (Aspen Law & Business 3d ed. 2002) (footnotes omitted).
Note: other portions of the opinion are not included in this article since those portions relate to non-fair use issues.Finally, and unfortunately, there is no Rosetta stone for the interpretation of the copyright statute. We have taken a “literal reading” approach. The legislative history is of little help because digital sampling wasn’t being done in 1971. If this is not what Congress intended or is not what they would intend now, it is easy enough for the record industry, as they have done in the past, to go back to Congress for a clarification or change in the law. This is the best place for the change to be made, rather than in the courts, because as this case demonstrates, the court is never aware of much more than the tip of the iceberg. To properly sort out this type of problem with its complex technical and business overtones, one needs the type of investigative resources as well as the ability to hold hearings that is possessed by Congress.
As with all fair use discussions, the position you take depends on your relationship to the transaction. In other words, are you a user of other parties’ rights or are you the other party? The Court stated in part:
Fair use is troubling to those who are uncomfortable with lack of certainty since fair use requires a case by case analysis. If you are seeking a bright line rule, then it should be to never rely on fair use since to do so is legally very uncertain and there is virtually no way to tell, in advance, whether any particular use is going to be upheld as a fair use. Always seek a license. And this applies to all uses of protected materials, not merely sound recordings.It is also not surprising that the viewpoint expressed in a number of these articles appears driven by whose ox is being gored. As is so often the case, where one stands depends on where one sits. For example, the sound recording copyright holders favor this interpretation as do the studio musicians and their labor organization. On the other hand, many of the hip hop artists may view this rule as stifling creativity. The record companies and performing artists are not all of one mind, however, since in many instances, today’s sampler is tomorrow’s samplee. The incidence of “live and let live” has been relatively high, which explains why so many instances of sampling go unprotested and why so many sampling controversies have been settled.
And be sure and read “Respect For The Law.”
Copyright © 2004 Ivan Hoffman. All Rights Reserved.