LEGAL GUIDE
Written by attorney Charles E. Colman | Dec 13, 2011

A Brief Introduction to the Law of Musical Sampling

Musical sampling currently exists in something of a legal grey area, with insufficient guidance from the courts on the boundaries between permissible “borrowing" of prior works and actionable copyright infringement.

The U.S. Copyright Act confers certain “exclusive rights" on those who fix “original works of authorship" in tangible form. These exclusive rights are laid out in 17 U.S.C. § 106, and include the right to duplicate the original work and to prepare “derivative works" based upon it, among other relevant rights. It is important to understand that copyright can (and often does) exist in both a musical composition and a particular recording of that composition; in other words, for most songs, there are at least two potential copyrights at issue (though the copyrights may be owned any number of entities.)

One important threshold requirement for a copyright infringement plaintiff, especially in the context of sampling, is a showing of “substantial similarity" between the original copyrighted work and the new, allegedly infringing work. The traditional test for evaluating substantial similarity between two works is whether “the ordinary observer, unless he set out to detect the disparities [between the two works], would be disposed to overlook them, and regard their aesthetic appeal as the same." Peter Pan Fabrics v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960). However, courts have sometimes focused instead on the amount of the original work used, or examined whether the new work has imported the original work’s “overall essence or structure." Regardless of the test employed, if there is no “substantial similarity" between the two works at issue, there is no copyright infringement, and that is the end of the inquiry.

However, even in situations where two works are “substantially similar," copyright infringement has not necessarily occurred. Beginning in Section 107 of Title 17 of the U.S. Code, the Copyright Act provides a series of “limitations" on the copyright owner’s exclusive rights under Section 106. As the Copyright Act’s provision on “compulsory licensing" allowing artists to “cover" songs in certain instances does not apply to most samplilng, the most important of these limitations for the purposes of liability for sampling is Section 107’s creation of a defense to copyright infringement known as “fair use." Section 107 provides four factors that are intended to guide the fair use analysis. But while these factors provide useful guideposts for predicting the outcomes of fair use disputes, it is also crucial (as always) for an attorney to consult prior judicial opinions to see how disputes with similar factual situations have been resolved by the courts.

Unfortunately, the Supreme Court has not decided any “substantial similarity" or “fair use" cases centered on musical sampling, and there are very few published federal circuit court decisions on point. Probably the most significant federal circuit court opinions on sampling are:

Newton v. Diamond, 349 F.3d 591 (9th Cir. 2003). In this case, the Beastie Boys sampled a three-note, six-second segment of a flute line in a song called “Choir" by one Mr. Newton, which they looped in the background of their song “Pass the Mic." Newton sued for copyright infringement of the underlying musical composition.

The Ninth Circuit (whose jurisdiction includes many of the Western states, including California) observed: “The practice of music sampling will often present cases where the degree of similarity is high. Indeed, unless the sample has been altered or digitally manipulated, it will be identical to the original. [But if] the similarity is only as to nonessential matters, then a finding of no substantial similarity should result." Here, “the sampled portion [was] neither quantitatively nor qualitatively significant" relative to the original composition, so “[t]he works [were] not substantially similar" and “Beastie Boys’ use of the ‘Choir’ composition was de minimis." As a result, Newton’s copyright infringement claim was dismissed. Thus, Newton shows that, as least where a musical composition is concerned, a defendant might not have to invoke fair use where the portion of the original song used is trivial. Compare this result with the ruling in the following case.

Bridgeport Music v. Dimension Films, 410 F.3d 792 (6th Cir. 2005). This action arose from a sample of the track “Get Off Your Ass and Jam" in the hip-hop song “100 Miles and Runnin," the latter of which was included in the soundtrack of the movie I Got the Hook Up. The owner of the sampled material sued the filmmakers for including a portion of their sound recording in the soundtrack. Here, the district court ruled—as the Ninth Circuit had ruled in the Newton case—that the filmmakers’ use of the sample was de minimis.

However, the appellatecourt reversed that ruling. The Sixth Circuit Court of Appeals (whose jurisdiction covers four states, including the relatively important “music states" of Michigan and Tennessee) rejected the de minimis rationale and created what the court admitted was a “new rule": that sampling a sound recording is prima facie copyright infringement, regardless of how small or unrecognizable the sample may be. In other words, where sound recordings are concerned, courts need not apply the “substantial similarity" test at all -- apparently a first in copyright law. In a now-infamous passage, the Court wrote: “Get a license or do not sample."

After a vocal reaction by certain groups, the Sixth Circuit amended its opinion to make clear that it had addressed only the “substantial similarity" component of copyright infringement, and had not ruled out the possible defense of fair use in sampling situations. Nevertheless, the Court’s absolutist language does not bode well for would-be samplers in the Sixth Circuit.

The Bridgeport case has been rejected by at least one federal district court and one state court, as well as numerous commentators (including the influential legal treatise Nimmer on Copyright.) However, it remains controlling law in federal-court proceedings in Michigan, Ohio, Kentucky, and Tennessee. By contrast, the Ninth Circuit in Newton employed reasoning that is more favorable to those who use samples in their work, but the case technically concerned only the sampling of musical compositions and not of sound recordings. Other federal appellate courts have not, as of this writing, issued a definitive pronouncement on the legality of musical sampling. (One wrinkle that cannot be addressed in this article is the applicability of state law – and not federal law – to pre-1972 sound recordings; it is clear that so-called "common-law copyright" does apply to pre-1972 sound recordings, at least in New York State, and at least until federal law steps in to cover this area in 2067... assuming the law is not amended before then.) As this is an area of law very much in flux, anyone confronted with sampling issues should be sure to consult an attorney who is familiar – and staying current – with this particular niche within copyright law.

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