Sampling has been controversial from the very start. Supporters of the practice argue that artists sample songs they love and build on them to create their own sound. It is taking little pieces from a few different sources and making something new out of it. Those opposed to sampling, while possessing mixed opinions about its value as an art form,1 cite the frequency of unlicensed sampling as a major issue.2 “Get a license or do not sample” is a famous quote from the ruling in Bridgeport Music, Inc., v Dimension Films, a major case dealing with sampling,3 and though it is not considered a bright-line rule, this ruling has been used as a precedent in cases dealing with copyright infringement. In the case, the court determined that whether or not the sample was substantially similar or de minimis, the part taken has some amount of value.4 Though the majority of sampling cases have ruled similarly, the issue of de minimis and substantial copying, as well as the issue of fair use are still being defined by the courts.
According to Section 501(a) of the Copyright Act, anyone who, without permission, exercises any of the exclusive rights of the copyright owner as provided by §106 through §118, or who imports copies into the United States (in violation of section 602), is infringing on the owner’s copyright.5 In order to successfully bring an infringement claim, the plaintiff must prove two things: ownership of a valid copyright, and unlicensed copying of the copyrighted work.6 The former is generally easy to prove by providing a valid copyright registration. The latter can be a bit trickier, and often requires the use of circumstantial evidence, as direct evidence of copying is usually unavailable. Using circumstantial evidence, the plaintiff must prove that the defendant had access to the copyrighted work, and that the new work is substantially similar to the one it samples.7 In Selle v. Gibb, the court held that the Bee Gees’ “How Deep Is Your Love” did not infringe Selle’s “Let it End” because Selle did not offer sufficient proof that the Bee Gees had access to his song, or that they had been nearby during his few performances.8
Conversely, there are many potential defenses to a claim that a sample is infringing, the most notable being fair use. Under the Copyright Act, fair use of a copyrighted work, which includes uses such as criticism, news reporting, education, and research, is not an infringement of copyright.9 There are four main factors used to determine whether a use falls under fair use: the purpose and character of the use, including whether the use is of a commercial nature; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use on the potential market for the work and the value of its copyright.10
Determination of the third factor, also compared with de minimis use, has caused the most issues in modern sampling related cases. If the new work is highly transformative, meaning the sample is unrecognizable by an ordinary audience, it may escape the onus of copyright infringement even though it is an unlicensed, and potentially commercial use.11 In Tufamerica, Inc. v. WB Music Corp. et al, the plaintiff alleged that Jay Z infringed on his copyright by using a sample of the word “oh” on the song “Run This Town,” and that “Run This Town” was substantially similar to the original song.12 The court held that “oh” was too common a word to warrant copyright protection. The court also held that the samples appear faintly in the background of “Run This Town” and are only barely perceptible to the average listener.13 The court reasoned that the amount of time a sample appeared in a song is considered when analyzing substantial similarity. Unlike the Bridgeport Music court, the judge stated that not every unlicensed copying of a part of a copyrighted work is infringement, and that the plaintiff improperly conflates factual copying and actionable copying.14 This was the first significant case that disagreed with the ruling in Bridgeport.
In contrast, in Bridgeport Music, Inc. v. UMG Recordings, Inc., Bridgeport claimed that UMG’s song “D.O.G. in Me” infringed the copyright to the George Clinton song “Atomic Dog” by copying the phrase “Bow wow wow, yippie yo, yippie yea.,”15 and the court agreed, finding that there was substantial similarity. UMG claimed that the use was intended to be a tribute to George Clinton,16 however the court held that there was no evidence backing that claim, such as an acknowledgement in the liner notes of the album.17
Both of these cases illustrate the continued discrepancy in rulings in sampling-based infringement cases. The requirements for bringing an infringement claim and the factors analyzed in those claims have proven to be relatively universal, but the viability of various defenses is far less defined, and is evaluated case-by-case. Additionally, the line between de minimis copying and a true use is still very much blurred. While it is always nice to have clear-cut rules, we live in a world in which music and the technology used to create it is changing, and loose guidelines with room for interpretation may in fact be optimal for the development of music.
By Chelsea Lockhart
1. TED Radio Hour: Why Would More Than 500 Artists Sample the Same Song?, National Public Radio (June 27, 2014), http://www.npr.org/2014/06/27/322721353/why-would-more-than-500-artists-sample-the-same-song.
2. All Things Considered: Sampling as a ‘Collage Of Mistakes’, National Public Radio (Nov. 17, 2012), http://www.npr.org/2012/11/17/165145271/dj-shadow-on-sampling-as-a-collage-of-mistakes.
3. Bridgeport Music, Inc. v. Dimension Films, 383 F.3d 390 398 (6th Circ. 2004).
4. Id at 399.
5. 17 U.S.C. § 501(a).
6. David J. Moser & Cheryl L. Slay, Music Copyright Law 183.
7. John S. Pelletier, Note, Sampling the Circuits: The Case for a New Comprehensive Scheme for Determining Copyright Infringement as a Result of Music Sampling, 89 Wash. U. L. Rev. 1161, 1175 (2012).
8. Selle v. Gibb, 567 F. Supp. 1173 (1983).
9. 17 U.S.C. § 107 (2006).
11. M. William Krasilovsky & Sydney Shemel, This Business of Music 209 (John Gross & Joanthan Feinstein eds., 19th ed. 2007).
12. Tufamerica, Inc. v. WB Music Corp. et al, No. 1:13-cv-07874 (S.D.N.Y. Nov. 05, 2013).
15. Bridgeport Music, Inc. v. UMG Recordings, Inc., 585 F.3d 267 (6th Cir. 2009).
16. Id at 278.