This week, in two different countries, we got two very good rulings concerning copyright on "sampling" of music into other songs. As you may know, the law on sampling, especially in the US, has been a bit of a mess. There was a great documentary on this a few years ago called Copyright Criminals that I highly recommend watching if you can find it. Here's the trailer:
A big part of the problem was a horrible ruling in the 6th Circuit in one of the (many) Bridgeport cases (a company that is alleged to have forged records to get control over heavily sampled works, and then sued lots of artists over their samples). In Bridgeport v. Dimension Films, a confused 6th Circuit appeals court made a bunch of nutty comments in a ruling, including "Get a license or do not sample. We do not see this as stifling creativity in any significant way." That case, which didn't even look at the fair use issue, effectively wiped out another legal defense against accusations of copyright infringement, known as "de minimis use." The court's bizarre ruling contradicted plenty of others in basically saying there's no such thing as de minimis use because each sampled note has value or it wouldn't have been sampled. This tautological reasoning is directly in that awful ruling:
Why is there no de minimis taking...? ... [E]ven when a small part of a sound recording is sampled, the part taken is something of value.(11) No further proof of that is necessary than the fact that the producer of the record or the artist on the record intentionally sampled because it would (1) save costs, or (2) add something to the new recording, or (3) both. For the sound recording copyright holder, it is not the “song” but the sounds that are fixed in the medium of his choice. When those sounds are sampled they are taken directly from that fixed medium. It is a physical taking rather than an intellectual one.
And while this ruling has been troubling copyright and music sampling folks for ages, no one seemed willing to challenge it. But, a few years back, we wrote about VMG Salsoul suing Madonna over her hit song "Vogue," claiming it used a sample from the VMG Salsoul song "Chicago Bus Stop." You can listen to both tracks and I assure you that you will not see any similarities, because they're totally different. In fact, VMG claimed that part of the reason it took 20 years to sue over this was because Madonna "hid" the sample -- which (to us, at least) raised serious questions about how it could be copyright infringement at all. In our article, we noted the mess in the 6th Circuit and the fear of others testing that ruling, but the Madonna case went forward (in the 9th Circuit, rather than the 6th) and Madonna won, and has now won again on appeal, with the court flat out rejecting the Bridgeport ruling in the 6th Circuit, and saying that de minimis use exists in sampling:
We reject that interpretation of § 114(b). Bridgeport
ignored the statutory structure and § 114(b)’s express
limitation on the rights of a copyright holder. Bridgeport also
declined to consider legislative history on the ground that
“digital sampling wasn’t being done in 1971.” ... But the state of technology is irrelevant to interpreting
Congress’ intent as to statutory structure. Moreover, as
Nimmer points out, Bridgeport’s reasoning fails on its own
terms because contemporary technology plainly allowed the
copying of small portions of a protected sound recording....
Close examination of Bridgeport’s interpretive method
further exposes its illogic. In effect, Bridgeport inferred from
the fact that “exclusive rights . . . do not extend to the making
or duplication of another sound recording that consists
entirely of an independent fixation of other sounds,”
... the conclusion that
exclusive rights do extend to the making of another sound
recording that does not consist entirely of an independent
fixation of other sounds. As pointed out by Nimmer,
Bridgeport’s interpretive method “rests on a logical fallacy.” ...
A statement that rights do not extend to a particular circumstance does not automatically mean that the
rights extend to all other circumstances. In logical terms, it
is a fallacy to infer the inverse of a conditional from the
conditional.
The ruling also rejects that weird "physical taking" line quoted above as a reason to ignore de minimis use as a defense against infringement:
We disagree for three reasons. First, the possibility of a
“physical taking” exists with respect to other kinds of artistic
works as well, such as photographs, as to which the usual de
minimis rule applies.... A
computer program can, for instance, “sample” a piece of one
photograph and insert it into another photograph or work of
art. We are aware of no copyright case carving out an
exception to the de minimis requirement in that context, and
we can think of no principled reason to differentiate one kind
of “physical taking” from another. Second, even accepting
the premise that sound recordings differ qualitatively from
other copyrighted works and therefore could warrant a
different infringement rule, that theoretical difference does
not mean that Congress actually adopted a different rule.
Third, the distinction between a “physical taking” and an
“intellectual one,” premised in part on “sav[ing] costs” by not
having to hire musicians, does not advance the Sixth Circuit’s
view. The Supreme Court has held unequivocally that the
Copyright Act protects only the expressive aspects of a
copyrighted work, and not the “fruit of the [author’s] labor.”
... Indeed, the Supreme Court in Feist explained at
length why, though that result may seem unfair, protecting
only the expressive aspects of a copyrighted work is actually
a key part of the design of the copyright laws....
Accordingly, all that remains of
Bridgeport’s argument is that the second artist has taken
some expressive content from the original artist. But that is
always true, regardless of the nature of the work, and the de
minimis test nevertheless applies.
And thus, the 9th Circuit directly admits that it's creating a circuit split, which makes it much more likely that the Supreme Court may take up the issue:
Because we conclude that Congress intended to maintain
the “de minimis” exception for copyrights to sound
recordings, we take the unusual step of creating a circuit split
by disagreeing with the Sixth Circuit’s contrary holding in
Bridgeport. We do so only after careful reflection because,
as we noted in Seven Arts Filmed Entertainment Ltd. v.
Content Media Corp.,..
“the creation of a circuit split would be particularly
troublesome in the realm of copyright. Creating inconsistent
rules among the circuits would lead to different levels of
protection in different areas of the country, even if the same
alleged infringement is occurring nationwide.” ... We
acknowledge that our decision has consequences. But the
goal of avoiding a circuit split cannot override our
independent duty to determine congressional intent.
Otherwise, we would have no choice but to blindly follow the
rule announced by whichever circuit court decided an issue
first, even if we were convinced, as we are here, that our
sister circuit erred.
It also notes, as we did, that no one would ever be able to tell that the Madonna song sampled Bus Stop:
After listening to the recordings, we conclude that a
reasonable jury could not conclude that an average audience
would recognize the appropriation of the composition.
Furthermore, the fact that the sample was modified helps Madonna's case:
The horn hit itself was not copied precisely. According
to Plaintiff’s expert, the chord “was modified by transposing
it upward, cleaning up the attack slightly in order to make it
punchier [by truncating the horn hit] and overlaying it with
other sounds and effects. One such effect mimicked the
reverse cymbal crash. . . . The reverb/delay ‘tail’ . . . was
prolonged and heightened.” Moreover, as with the
composition, the horn hits are not isolated sounds. Many
other instruments are playing at the same time in both Love
Break and Vogue.
The ruling even notes that VMG Salsoul's own expert "misidentified" the source of the sampled note, showing that even their own expert couldn't correctly understand what was sampled here (oops). And in the end, the court supports de minimis use:
We hold that the “de minimis” exception applies to
actions alleging infringement of a copyright to sound
recordings.
Separately, the court did overturn the district court awarding attorneys' fees in the case, saying that the lawsuit was not "objectively unreasonable" in light of Bridgeport, even if that case was disputed by many.
There is also a really confused dissent by Barry Silverman that goes along the "copyright is a property right and any infringement on that right is bad" line of thinking:
The plaintiff is the owner of a copyright in a fixed sound
recording. This is a valuable property right, the stock-intrade
of artists who make their living recording music and
selling records.... It is no
defense to theft that the thief made off with only a “de
minimis” part of the victim’s property.
And then there's this:
True, Get a license or do not sample doesn’t
carry the same divine force as Thou Shalt Not Steal, but it’s
the same basic idea. I would hold that the de minimis
exception does not apply to the sampling, copying, stealing,
pirating, misappropriation – call it what you will – of
copyrighted fixed sound recordings. Once the sound is fixed,
it is tangible property belonging to the copyright holder, and
no one else has the right to take even a little of it without
permission.
It's kind of horrifying when an appeals court judge doesn't know the difference between theft and infringement. Thankfully, he's in the minority.
Either way, this circuit split increases the chances of the Supreme Court weighing in. That could be good in finally getting the 6th Circuit precedent destroyed. Or... it could be bad in that this particular Supreme Court seems to almost always get copyright cases wrong, meaning it could affirm the 6th Circuit interpretation and dump the 9th's, once again doing serious harm to sampling as an art form.
Meanwhile, however, over in Germany, they've taken a much more enlightened view on all of this in a similar case involving Kraftwerk whining about a hip hop song sampling some of its music. The German Bundesverfassungsgericht (German federal constitutional court) has given a big okay to samples by noting that their artistic merit outweighs the copyright issue:
If the artist’s freedom of creative expression is measured against an interference with the right of phonogram producers that only slightly limits the possibilities of exploitation, the exploitation interests of the phonogram producer may have to cede in favour of artistic dialogue.
The ruling basically tries to balance the right to "artistic freedom" with copyright law, and basically argues that in cases where those doing sampling aren't doing any real harm to the original copyright holder, the artistic freedom should win out. The court rejects the idea that using a short sample interferes with the copyrights of the original:
The presumption by the Federal Court of Justice that even the inclusion of very brief sound sequences constitutes an interference with the plaintiffs’ right to protection as phonogram producers if the used sequence can be reproduced so as to sound like the original, does not take sufficient account of the right to artistic freedom. Where a musical artist who intends to use samples to create a new work does not want to refrain from including a sample in his new piece of music, the strict interpretation of free use by the Federal Court of Justice puts him in the position of having to decide whether to obtain a sample license from the phonogram producer or to reproduce the sample himself. In both cases, however, the freedom of artistic activity and hence also the further cultural development would be restricted.
Just because you can license some samples doesn't fix the situation:
Emphasising the possibility to obtain a license does not provide an equivalent degree of protection of the freedom of artistic activity: A right to be granted a license to use the sample does not exist; due to his right of disposal, the phonogram producer may deny a licensing without having to give reasons and irrespective of the readiness to pay for the use of the sample. The phonogram producer is entitled to demand the payment of a license fee for the use of the sample, the amount of which he is free to determine. The process of granting rights is extremely difficult in case of works which assemble many different samples in a collage-like manner. These problems are only solved insufficiently by existing sample databases and service agencies that assist musical artists in the process of sample clearing.
In other words, the German approach here is a big, big deal, recognizing that sampling is a form of artistic expression, and requiring licenses for it stifles creativity and musical expression. This is a much bigger deal than the US situation, where we're still arguing over de minimis use (and not even fair use!). Meanwhile, over in Germany they're directly looking to enable more artistic freedom.
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