United States: The Legal Smack Down On Music Sampling: Is The Age Of Hip Hop Over?

"Find me in da club, bottle full of bub, Ma, I got what you need if you need to feel a buzz…" Such are the lyrical prose of hip hop artist 50 (pronounced "fiddy") Cent. Hip hop music, to the dismay of many parents (or ‘rents) and lovers of more traditional (a.k.a. boring) forms of music production, has expanded to become one of the best selling musical genres in the U.S., surpassed only by rock and roll. Indeed, to refer to hip hop merely as a form of obscene "gangsta rap" would be a gross misrepresentation. This extraordinarily popular genre actually involves some mad skills, usually entailing one or more rappers telling semi-autobiographic tales in an "intensely rhythmic lyrical form making abundant use of techniques like assonance, alliteration, and rhyme."¹ Rap is often accompanied by an instrumental track, referred to as a beat. This beat, however, is where it gets complicated for copyright lawyers. Usually, this beat is created using a sample of the percussion break of another song, which has been referred to as music "sampling" or "borrowing."²

Musical borrowing that entails inserting portions of pre-existing music within hip hop songs has raised various copyright law concerns. Some scholars believe this is because the current copyright doctrine does not take into consideration the act of sampling copyrighted works. "Instead, copyright doctrine incorporates notions of Romantic authorship that assume independent and autonomous authorship and even genius in the creation of original musical works."³ As such, courts have been struggling with how to interpret music sampling in the face of copyright infringement suits. However, one court is laying the smack down with a "bright-line" legal rule opposing free music sampling. Under the Sixth Circuit’s latest ruling in Bridgeport Music v. Dimension Films, even two notes sampled from existing music automatically constitutes copyright infringement.⁴

The Sixth Circuit has recently issued a number of opinions dissing music sampling, regardless of how significant the sampling is. The Bridgeport cases involved copyright infringement actions brought with respect to a two-second sample of a guitar chord from a song titled "Get Off Your Ass and Jam" by George Clinton and the Funkadelics.⁵ In these cases, Bridgeport Music, Southfield Music, Westbound Records, and Nine Records, alleged nearly 500 counts against approximately 800 defendants for copyright infringement relating to the use of these very minor samples without permission in new hip hop recordings.⁶

In the latest Bridgeport decision to drop, the court noted that "[a]dvances in technology coupled with the advent of the popularity of hip hop or rap music have made instances of digital sampling extremely common and have spawned a plethora of copyright disputes and litigation." In light of this, the court then noted that "[t]he 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 rejected the "substantial similarity test," finding that "[t]he import of this language is that it does not matter how much a digital sampler alters the actual sounds or whether the ordinary lay observer can or cannot recognize the song or the artist’s performance of it." The court found the de minimis defense inapplicable to the copying of sound recordings, distinguishing sound recordings from musical compositions, to which the de minimis defense has been applied.

The Bridgeport court essentially held the following: "Get a license or do not sample." The court came to this conclusion based on the following rationale:

We do not see this as stifling creativity in any significant way. ...[I]f an artist wants to incorporate a "riff" from another work...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. ...Third, sampling is never accidental. ...When you sample a sound recording you know you are taking another’s work product.⁷

Thus, a bright-line rule was created, holding that "[s]amplers should apply for the appropriate licenses, respect the rights of copyright holders, and be respected in turn as equal creators." This movement towards per se infringement could have a number of impacts. Rap musicians will have to come up with their own unique beat, despite the fact that music sampling can often create extraordinarily unique songs resulting in platinum record sales, or musicians and record labels will have to pay the price to sample.

A gauge of Bridgeport’s true impact will be tested this year as the Bridgeport plaintiffs head to trial in a copyright infringement suit targeting the Ready to Die album of slain rapper Notorious B.I.G. in trial in the U.S. District Court of Middle Tennessee in Nashville.⁸ In Plaintiffs’ mind, the Notorious B.I.G. is a "BIG infringer." The plaintiffs will attempt to take down Bad Boy Records owned by Sean "Diddy" Combs, the estate of Christopher Wallace (the birth name of Notorious B.I.G.) and Universal Records, which distributed the alleged infringing album. Bridgeport claims the defendants never received permission to use sampled portions of their copyrighted works (i.e. "Singing in the Morning," which appeared on the album Pain by the Ohio Players in the 1970s) to record the songs "Ready to Die," "Machine Gun Funk" and "Gimme the Loot." Defendants will likely not argue a "fair use" or de minimus defense, which were dissed by the Sixth Circuit in the earlier Bridgeport cases. Rather, Diddy’s lawyers reportedly plan to argue that they had the proper licenses to record the songs, and even if they did not, plaintiffs have no federal copyright claim to either "the works" or "Singing in the Morning."⁹ It is apparent now that hip-hop music is no longer confined to New York and Los Angeles, nor are the deceased artists off the hook for what they borrowed.

The Bridgeport decisions comes as a shock to the music industry. Up to this point, courts have had a pretty laissezfaire, or should we say chill, attitude towards the sampling practices of the ever-popular hip hop world.¹⁰ It is hard to tell if the bright-line rule will stand. To be sure (or "Fo Shizzle"), the law governing music sampling reflects an evolving doctrine that is by no means standardized or consistent. Will courts really find that any identifiable musical sound recording segment without permission is a violation of copyright law? What will judges and jurors feel is fair use? At this point, there is no predictable way to tell where your case will go. In the meantime, don’t go mad dawgin’ the Sixth Circuit.

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