United States: To Sample or Not to Sample?

Last Updated: June 9 2017
Article by Caroline H. Mankey

Conflict is brewing among the United States Courts of Appeals as to when a musical artist's use of a sample from another artist's musical work is non-infringing. Three key opinions analyzing this issue were decided by the federal Circuit Courts governing the states in which the music industry proliferates — New York, California and Tennessee — and each reached different conclusions.

In 2005, the Sixth Circuit Court of Appeals (which includes the federal courts in Tennessee) held that the use of a two-second sample from a sound recording used in a rap song that was included on the soundtrack of the motion picture "I Got the Hook Up" constituted copyright infringement. In 2016, the Ninth Circuit Court of Appeals held that Madonna's use of a .23-second sample in her hit song "Vogue" did not constitute copyright infringement. On May 31, 2017, the Second Circuit similarly weighed in with a decision that Drake's use of a 35-second sample from a Jimmy Smith spoken-word recording was not infringing.

How did the Ninth Circuit and the Second Circuit reach decisions that appear to diverge so dramatically from the Sixth Circuit's finding? 

In the Sixth Circuit's decision in Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005), the court rejected application of a traditional de minimis or substantial similarity analysis based on the statement in the Copyright Act that the rights of sound recording copyright holders "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." The court concluded that the use of the word "entirely" meant that the sound recording owner has the exclusive right to sample its own recording, and pronounced: "Get a license or do not sample." 

In contrast, in VMG Salsoul, LLC v. Ciccone, 842 F.3d 871 (9th Cir. 2016), the Ninth Circuit expressly diverged from the Sixth Circuit's holding in Bridgeport and held that an exception applies to infringement for de minimis copying. In this case, Madonna's producer sampled a .23-second horn hit from the plaintiff's song "Love Break" and used it 5-6 times in two different mixes of the song "Vogue" while many other instruments are playing at the same time as the horns. The Ninth Circuit relied on the well-established rule that in order to establish copyright infringement, the plaintiff must show that the copying was greater than de minimis. A de minimis use is one that the average audience would not recognize as an appropriation. After listening to the recordings, the court concluded that an average audience would not recognize "Love Break" as the source of the horn hit, noting that "horn hits are easy to miss" and the horn hits in "Vogue" had been modified in numerous respects and did not sound identical to the horn hits from "Love Break." 

The Ninth Circuit rejected the reasoning of the Sixth Circuit in Bridgeport on the basis that the Copyright Act treats sound recordings identically to all other types of protected works. It also rejected the Sixth Circuit's argument that the use of the word "entirely" in the Copyright Act gave sound recording owners the exclusive right to sample their works, holding instead that the provision was a limitation on the rights of sound recording owners: "The exclusive rights of the owner of a copyright in a sound recording ... do not extend to the making or duplication of another sound recording [with certain qualities]." It further interpreted that provision of the Copyright Act as meaning that a "new recording that mimics the copyrighted recording is not an infringement, even if the mimicking is very well done, so long as there was no actual copying." In other words, a band can record a "cover" version of another artist's sound recording without infringing on the copyright on the sound recording. The court also cited numerous District Court opinions from various jurisdictions, as well as the leading treatise on copyright law, all of which had consistently rejected and declined to follow the reasoning of Bridgeport.

In the Second Circuit's opinion in Estate of James Oscar Smith v. Cash Money Records, Inc., Case No. 14-cv-2703 (May 31, 2017), the court did not conduct a de minimis analysis. Instead, it analyzed the substance of the defendants' use under the fair use analysis codified in the Copyright Act (17 U.S.C. § 107), placing particular emphasis on the first factor, which examines the "purpose and character of the use" and is "the heart of the fair use inquiry." The central question pertinent to that factor is whether and to what extent the new work is transformative of the original work. As the United States Supreme Court has articulated, a new work is transformative if it does not merely supersede the objects of the original work, but "adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message." Applying this standard, the Second Circuit determined that the defendants transformed the message in the original work from "jazz is the only real music that's gonna last" by changing it to "only real music is gonna last." The court found that this change was precisely the type of use that "adds something new, with a further purpose or different character, altering the first work with new expression, meaning, or message." This transformation of the earlier artist's message rendered the defendants' use of the original composition fair and non-infringing.

The United States Supreme Court has not addressed the fair use defense in the context of music sampling since its holding in Campbell v. Acuff Rose Music, Inc., 510 U.S. 569 (1994), in which it held that 2 Live Crew's recording of a parody of the song "Oh, Pretty Woman" may be protected by the fair use doctrine, despite its commercial nature, and despite whether the parody was in good taste or bad.

As cases continue to arise in the context of music sampling, as well as in connection with appropriation art where courts are grappling with determinations as to whether a work of visual art has been sufficiently transformed by a secondary artist as to render its use fair, the time appears to be ripening for the Court to provide some clarity and guidance on the proper scope of the fair use exception to copyright infringement.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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