May 19, 2011
by: Tiny Aragones
In an age characterized by rapid technological innovation, the protection of intellectual property, particularly copyrights, has become a major concern not just for big industry players but for individuals (i.e. artists, musicians, performers, etc.) as well. This article will hopefully shed light upon an issue that has preoccupied the music industry: “music sampling,” or “digital sampling."
What is “Sampling”?
Music sampling simply means incorporating pre-existing recordings into a new recording, whether part or all of a tune (a melody) and/or the lyrics1. More often than not, sampling involves the incorporation of a short segment of a musical recording into a new musical recording2. In more technical terms, this involves:
"The conversion of analog sound waves into a digital code. The digital code that describes the sampled music…can then be revised, manipulated or combined with other digitalized or recorded sounds using a machine with digital data processing capabilities such as a … computerized synthesizer.3"
Much of hip-hop, R’n’B and rap music is created using samples – snippets from pre-recorded music: a tune, parts or lines from the lyrics of a song, among others. Take Rihanna’s hit single “Please Don’t Stop the Music”, for instance. The song contains a line, "Ma Ma Se, Ma Ma Sa, Ma Ma Coo Sa," which was sampled from the late Michael Jackson’s 1983 song “Wanna Be Startin’ Something”, also reportedly sourced from an even earlier song by Manu Dibango4 entitled “Soul Makossa” of 1972.5
The practice of sampling music is said to have originated from Jamaica in the 1960s when it was done through portable sound systems. In its earliest forms, Jamaican disc jockeys (“the “DJ”) would play records with a recognizable drum and bass line and another person (the “MC”) would utter words and lyrics over the rhythm and melodies. This practice, known as “toasting,” predated the birth of hip hop in 1970’s. When hip hop started, DJs would sample music using analog technology particularly analog turntables and mixers.6 The practice became more prevalent in the 1980s with the use of digital synthesizers equipped with Musical Instrument Digital Interface (“MIDI”). The use of digital synthesizers enabled artists not just to mix sounds from a pre-existing recording but to isolate unique sounds from a musical recording.7 Since then, music sampling through digital recording pioneered much of the music as we know it today.
Battling Copyright Issues
As vigilance over copyrights intensified in the music industry, copyright-owners have sued artists, recording companies, and producers who have used samples or recognizable elements of their copyrighted work without authorization.
The U.S. Copyright Act of 1976 provides that musical works8 and sound recordings9 which are original and fixed in any tangible medium of expression, now known or later developed from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device10 shall be protected. This means that in any given sample, there are two subsisting copyrights: 1) over the composition itself (i.e., the “compositional copyright”) and 2) over the sound recording (i.e., the “sound recording copyright”). The compositional copyright is usually owned by the composer of the song. Copyright to the sound recording, on the other hand, is usually owned by the recording company or the producer of the sound recording.
The U.S. statute affords the copyright-owner the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.11
However, a person owning a copyright to the sound recording only has the right to duplicate a sound recording in the form of phonorecords that directly or indirectly recapture the actual sounds fixed in the recording.12
“The three-second rule”
To begin with, sources within and outside the music industry have said that in practice, a sample that does not exceed 3 seconds is either not actionable or is not actively prosecuted. This remains an unwritten rule, and is neither supported by law nor jurisprudence13. The sampling of even the smallest segments of a musical recording, such as a tune, a three-note sequence, a guitar riff or part of the lyrics of a song, has long been the subject of lawsuits14. Although most sampling cases often end up being settled out of court15, jurisprudence is replete with discussions on the matter.
The Substantial Similarity Test
In most cases16, a court assesses whether the work containing the sample is substantially similar to the original work from which the sample was taken to determine whether the sampling is actionable. The test of similarity is a test of first impression17, which considers the separate works in their entirety18. Similarity between the two works occurs when the overall structure or theme of the musical recording or composition is used but there has been no literal copying (“comprehensive non-literal copying”) or when a portion of the copyrighted work (usually a small portion as in most digital sampling cases) has been copied literally (“fragmented literal similarity”)19.
The determination of whether substantial similarity exists specifically rests on a quantitative and qualitative analysis of the sample in relation to the entire copyrighted work. Quantitative analysis is concerned with how much of the plaintiff’s work is copied while qualitative analysis is concerned with the significance of the portion taken to the whole work20. This is especially true where the copyright alleged to have been infringed is the compositional copyright21.
An Alternative Test: Fragmental Similarity Standard
In 2009, the United States Court of Appeals, Sixth Circuit, had occasion to employ a different standard in determining substantial similarity in the unique case of Bridgeport v. UMG Recording Inc.22 The case involved George Clinton’s “Atomic Dog” (considered by many to be a quintessential funk anthem). A hip hop band used the “Bow Wow refrain” (“Bow wow wow yippie yo, yippie yea”) as well as the repetition of the word “dog” in a low tone voice at regular intervals.23 The case is unique because “Atomic Dog” was created spontaneously in the recording studio and there was no written score or lyrics sheet created until after the sound recording was released.
The court affirmed the use of the fragmented literal similarity standard in finding that there was substantial similarity between the two works and, consequently, infringement. The test was applied since there was a literal copying of a portion of the original work24. In cases where fragmented literal similarity occurs, the court evaluates whether the portion that has been copied literally is recognizable by an ordinary reasonable person as having been appropriated from the original work. In the present case, the court held that the elements copied, although relatively small portions, were not only original but, at the same time, the most distinctive and recognizable elements of the original composition.
Applying the fragmented literal similarity test would suggest that any sample of a copyrighted work, regardless of its quantitative significance, may result in copyright infringement when it constitutes a substantial part of the sampled original work.
De Minimis Use
Corollary to the substantial similarity test is the defense that the copying only amounts to a de minimis taking, or is so trivial as to be unactionable. Newton v. Diamond25 held that:
"To establish that the infringement of a copyright is de minimis, and therefore not actionable, the alleged infringer must demonstrate that the copying of the protected material is so trivial "as to fall below the quantitative threshold of substantial similarity... No "substantial similarity [will] be found if only a small, common phrase appears in both the accused and complaining songs ... unless the reappearing phrase is especially unique or qualitatively important."....A taking is de minimis if the average audience would not recognize the misappropriation."
De minimis, when used as a defense in a sampling lawsuit, would mean that the amount that has been sampled is believed to have been minimal and that the portion(s) copied are not important or significant to the copyrighted work such that it would barely be recognized by an average listener.
In Newton26, a 3-note sequence from James W. Newton’s musical composition entitled “Choir” was sampled by the famous rap group Beastie Boys in their work “Pass the Mic." The sample, which appeared only once at the beginning and lasted for only 6 seconds of the 4 and a half-minute-long original musical composition, was not significant enough to constitute infringement27. The court found that it was neither quantitatively nor qualitatively substantial to be actionable. The use of the sample, therefore, was de minimis.
Another case, Jean et al. v. Bug Music28, affirmed the de minimis defense. Bug Music (the defendants) initially sued the authors (plaintiffs) of a song popularized by Whitney Houston and claimed that it infringed a song they wrote several years ago. Specifically, the infringing song contained the lyrical and musical excerpt: “Clap your hand, y’all, ‘t’s’ all right” which closely resembled that contained in Bug Music’s work “Hand Clapping Song”. The court granted plaintiff’s petition for a summary judgment and ruled that the phrase “clap your hands now, people clap now” is a common phrase that often appeared in church and secular music, hence, it was neither original nor copyrightable. The court also held that listeners would also not have recognized that the sampled portions came from the defendant’s work. The songs sounded different and engendered different responses from the audience29. Hence, the case was dismissed on the ground that the use is de minimis30.
Boone v. Jackson31, although it did not explicitly use the words ‘de minimis’, arrived at a similar conclusion. Here, the court held that use of the phrase “holla back” in an eight-note syncopated rhythm in the hook of a rap song did not amount to an infringement of an earlier work. Not only was the phrase common and hence unprotectible by copyright, but even as it were, the works are not substantially similar to a lay observer (The court found that aside from the repeated use of the phrase, the works overall qualities were significantly dissimilar)32.
From these rulings, it can be inferred that the use of ordinary, common phrases and common components of various melodies may be classified as de minimis. They do not merit any copyright protection probably because such phrases are not original and are not an integral part of the song.
The split in the jurisprudence on digital sampling was occasioned by the Bridgeport Music, Inc. v. Dimension Films33 ruling in 2005, which involved an infringement claim of a copyright to a sound recording. The United States Court of Appeals for the 6th circuit overturned the district court’s ruling, which held that the defendant’s sampling of a guitar riff from the musical recording did not “rise to the level of copyright infringement under either of two standards: the de minimis analysis or the fragmented literal similarity test." In its decision, the appellate court distinguished between an action for infringement of a copyright to a musical composition and an action for infringement of a copyright to a sound recording. It held that the standards used to determine infringement of a copyright to a musical composition (i.e. the de minimis analysis or the fragmented literal similarity test) was inapplicable to an infringement case involving a copyright to a sound recording.
In this case, the court, ignoring previous case law on music sampling, decided that in instances affecting the copyrights to a sound recording, the only issue is whether the actual sound recording has been used without authorization. Hence, the test is more direct, so to speak, such that every instance of unauthorized digital sampling, even when the sampled portion is hardly recognizable34, would be a violation of the copyright to the sound recording . The U.S. Court of Appeals for the 6th circuit in Bridgeport held that digital sampling is “never accidental” and that “the appropriation is a physical taking rather than an intellectual one36” . Therefore, the question of whether or not the sample is recognizable by an average lay person (i.e. applying the substantial similarity test) will not factor in the assessment.
No actual case applying the doctrine enunciated in Bridgeport Music, Inc. v. Dimension Films has been reported to date. The appellate court in the case veered away from previous rulings on cases involving music sampling when it opted not to apply the substantial similarity test. Based on its own interpretation of the U.S. copyright law37, the court created a “bright line test” previously unheard of: “Get a license or do not sample”.
However, a case predating Bridgeport and its bright line test came to a somewhat similar conclusion. Grand Upright Music, Ltd. V. Warner Bros. Records, Inc.38 showed that proof of copyright ownership and unauthorized sampling is enough to constitute infringement. The court therein held that “…the most persuasive evidence that the copyrights are valid and owned by the plaintiff comes from the actions and admissions of the defendants”. Documentary evidence also showed that the defendants tried to obtain the permission of the owner. However, their album, which contained the infringing work, was released pending the application for the license. Hence, the court ruled that the infringement was willful. For this, many have criticized the Grand Upright ruling as a bad precedent39.
Follow the bright line?
Although the general “consensus” among recording artists and companies was to choose “obscure enough” samples such as these would be unrecognizable40, most artists now simply choose to follow the “bright line test” to avoid being entangled in copyright lawsuits. For this purpose, they would try to obtain clearances for samples from copyright-owners: 1) the copyright owner of the song and 2) the copyright owner of the master recording41. Although obtaining sample clearances may be a tedious task, it is less taxing and less expensive in the long run. Organizations in the U.S. such as the Broadcast Music Incorporated (BMI) or the American Society of Composers, Authors, and Publishers (ASCAP) help a great deal in obtaining sampling clearances from song publishers. The publishers themselves or the record company that released the album(s) containing the work sought to be sampled can help in tracking down the copyright-owner of the master recording. Otherwise, online records, databases and directories may prove useful.
1 Ben Challis, The Song Remains the Same: A Review of the Legalities of Music Sampling, available at http://www.wipo.int/wipo_magazine/en/2009/article_0006.html (last accessed May 10, 2011).
2 Newton v. Diamond, 204 F. Supp. 2d 1244 (2004).
3 Peter Cuomo. Legal Update: Claiming Infringement Over Three Notes Is Not Preaching to the “Choir”: Newton v. Diamond and A Potential New Standard in Copyright Law (citing Jarvis v. A&M Records, 827 F. Supp. 282, 286 (D.N.J. 1993)), available at http://www.bu.edu/law/central/jd/organizations/journals/scitech/volume101/cuomo.pdf (last accessed May 12,2011).
4 Manu Dibango is a a popular Cameroonian saxophonist of the 1970s.
5 Tom Breihan, Manu Dibango Sues Rihanna. Michael Jackson available at http://pitchfork.com/news/34538-manu-dibango-sues-rihanna-michael-jackson/ (last accessed on May 12, 2011).
6 John Lindenbaum, Music Sampling and Copyright Law (1999) (Unpublished thesis, Princeton University) (available at http://www.princeton.edu/~artspol/studentpap/undergrad%20thesis1%20JLind.pdf).
8 17 U.S.C. Sec 102(a).
11 17 U.S.C. Sec 106 (1).
12 Robert A. Gorman, Copyright Law Second Edition available at http.www.scribd.com/doc/8763709/copyright-law-second-edition (last accessed on May 11, 2011).
13 supra note 1.
14 Newton v. Diamond, 204 F. Supp. 2d 1244 (2004).
15 It has been reported that the late Michael Jackson settled his case with Manu Dibango (Tom Breihan, Manu Dibango Sues Rihanna. Michael Jackson available at http://pitchfork.com/news/34538-manu-dibango-sues-rihanna-michael-jackson/ (last accessed on May 12, 2011)).
16 Such test was ignored in the case of Grand Upright Music, Ltd. vs. Warner Brothers Records, Inc.(780 F.Supp. 182) and Bridgeport Music, Inc. v. Diamond Films (410 F.3d 792 (6th Cir. 2005).
17 The court considers whether the average lay observer would recognize the appropriation.
18 In the case of Jean, et al. vs. Bug Music (No. 00 Civ 4022(DC), 2002 WL 287786 (S.D.N.Y. Feb. 27, 2002)), the songs were evaluated based on the sounds and the mood that each song conveyed.
19 Stephen R. Wilson, Music Sampling Lawsuits: Does looping music samples defeat the de minimis defense?, The Journal of High Technology Law, available at http://www.thefreelibrary.com/_/print/PrintArticle.aspx?=id172599157 (last accessed on May 16, 2011).
21 The case of Newton vs. Diamond used this type of analysis to come to the conclusion that the Beastie Boy’s song which contained a three-note sample from James Newton’s composition and the original composition were not substantially similar (Quantitatively: the portion sampled lasted approximately two seconds and comprised roughly two percent of Newton’s composition; Qualitatively: the portion was not more important to Newton’s composition that any other portion).
22 No. 07-5596 (C.A. 6, Nov. 4, 2009).
23 Bridgeport Music, Inc. v. UMG Recording, Inc., No.07-5596 (2009).
24 supra note 18
25 204. F.Supp.2d 1244 (2004).
27 The court held that the excerpt was “merely a common, trite, and generic three note sequence, which lacks any distinct, melodic, harmonious, rhythmic or structural elements…a common building block tool that has been used over and over again by major composers in the 20th century”.
28 (No. 00 Civ 4022(DC), 2002 WL 287786 (S.D.N.Y. Feb. 27, 2002).
29 The Hand Clapping Song was a funk song characterized by strong percussion and guitar sounds and invited the listener to clap their hands in time with the beat. On the other hand, the allegedly infringing song “My Love is Your Love” sounded more mellow “with a smooth base line accompanied by soft percussion”.
30 UCLA School of law available at http://cip.law.ucla.edu/cases/2000-2009/Pages/jeanbugmusic.aspx (last accessed on May 17, 2011).
31 No. 03 Civ. 8661 (S.D.N.Y. July 1, 2005).
32 David J. Moser, Case Study: Boone v. Jackson (Fabulous) – Holla Back Copyright (citing Boone v. Jackson No. 03 Civ 8661 (S.D.N.Y. July 1, 2005) , available at http://www.copyrightguru.com/belmont_classes/IntellectualProperties/Cases/BoonevJackson.pdf (last accessed May 16, 2011).
33 410 F.3d 792 (6th Cir. 2005).
34 The segment taken was altered: the pitch was lowered and the piece was looped so that it would last for approximately 7 seconds in the subsequent recording.
35 Interpreting the law, it would appear that the copyright-owner of a sound recording has the exclusive right to “re-record” his sound recording.
36 Nicole Stafford, Intellectual Property Law – Copyright infringement – Any Digital Sample of Music Taken From a Sound Recording is Prohibited Under the Federal Copyright Statute, 17 U.S.C §114. Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 37 792 (6th Cir. 2005), available at http://www.law.udmercy.edu/lawreview/recentissues/v84/issue1/84_udm_law_review_rev35.pdf (last accessed on May 12, 2011).
37 The Copyright Act of 1976, 17 U.S.C. Sec. 114.
38 780 F. Supp. 182 (S.D.N.Y. 1991).
39 Wikipedia, the free encyclopedia, available at http://en.wikipedia.org/wiki/Grand_Upright_Music,_Ltd._v._Warner_Bros._Records_Inc. (last accessed May 17,2011).
40 Supra note 18 (citing markkus Rovito, Bomb Tracks: A Hip-Hop How To, REMIX, June 1, 2001, at 64-66).
41 Obtaining Persmission before Sampling Music, available at http://smallbusiness.findlaw.com/copyright/copyright-realworld/music-sampling-permission.html (last accessed May 12, 2011).