"Get a license or do not sample." (1) The Sixth Circuit's terse ultimatum in the 2005 Bridgeport Music, Inc. v. Dimension Films decision rejected the common law de minimis (2) exception to copying as applied to sound recordings, and for eleven years, Bridgeport stood unchallenged by the courts of appeals, the Supreme Court, and Congress. (3) This changed in June 2016 with the Ninth Circuit's decision in VMG Salsoul, LLC v. Ciccone. (4) Confronted with the question of whether the de minimis defense applies to the unauthorized copying of sound recordings, the court openly rejected the Sixth Circuit's reasoning and held that the de minimis defense applies. (5) In doing so, the Ninth Circuit created a circuit split subjecting two centers of the American music industry, Nashville (Sixth Circuit) and Los Angeles (Ninth Circuit), to inconsistent copyright protection regimes. (6) In the interest of consistency and predictability in the law, this split must be resolved.
Part I of this Note examines the history of sound recording copyrights, the role of digital sampling in the music industry, and the basic principles and functions of the de minimis defense. Part II carefully dissects the Bridgeport and VMG opinions. Part III then considers the merits of each opinion and concludes that Bridgeport reached the correct conclusion. This argument rests on the statutory scheme of Title 17 of the U.S. Code and the plain text of its applicable provisions, bolstered by their legislative history, giving life to a unique statutory creature that thrives in a manner inconsistent with traditional theories of copyright law. In essence, (1) sound recording copyrights protect only the form of the substance protected by underlying musical work copyrights; (2) the de minimis inquiry focuses solely on the substance of a given work; (3) therefore, the formal protection afforded by sound recording copyrights should be excluded from the de minimis inquiry.
Resolving the circuit split demands an understanding of the intersection of sound recording copyrights, digital sampling in the music industry, (7) and the common law de minimis defense in the heavily statutory field of copyright law. (8) To this end, we will begin with an examination of each.
Sound Recording Copyrights
"Copyright protection subsists... in original works of authorship fixed in any tangible medium of expression... from which they can be perceived, reproduced, or otherwise communicated...." (9) When a playwright scribbles his notes in his journal, when a painter brings his brush to the canvas, when a photographer emerges from the darkroom with picture in hand, their work is protected by the provisions of Title 17 of the U.S. Code. Each of these works--the notes, the painting, and the photograph--embody a single copyright carrying, where applicable, the exclusive rights expressed in [section] 106(1)-(6). These are the rights of reproduction, (10) adaptation, (11) distribution, (12) public performance, (13) and public display. (14) When a musician writes and records a song, however, she acquires two distinct yet related copyrights: one for the underlying musical work and one for the sound recording. (15) While the musical work copyright covers the substantive elements of the song, such as the lyrics, rhythm, tempo, and arrangement of notes, (16) the sound recording copyright covers the actual sounds embodied in the recording. As defined in [section] 101, "'[s]ound recordings' are works that result from the fixation of a series of musical, spoken, or other sounds." (17) Simply put, the sound recording copyright extends to the actual sounds you hear when you press "play."
Prior to 1971, musicians only retained a copyright in a song's underlying musical work and thereby had no recourse for unauthorized duplication of their sound recordings by lawful users of that work. While sound recording technology has existed since at least 1860, (18) it was not until the introduction of magnetic tape in the mid-twentieth century that it became commercially viable to market recording technology to a broad consumer base. (19) This accessibility allowed any individual to quickly and cheaply create high fidelity copies of songs, and thus led to a massive influx of pirated material on the market. (20) Because the copyright laws at the time only protected underlying musical works, duplication of recordings avoided infringing the copyright, provided that the copyist paid the nominal compulsory license fee for the musical work. (21) It did not take Congress long to notice the substantially damaging potential of record piracy.
In 1971, Congress officially recognized sound recordings as copyrightable subject matter with the passage of the Sound Recording Act (SRA). (22) With the stated purpose of creating a "limited copyright in sound recordings for the purpose of protecting against unauthorized duplication and piracy of sound recording," (23) the SRA gave owners of the copyright the right to "reproduce and distribute to the public by sale or other transfer of ownership ... reproductions of the copyrighted work." (24) The Act then further defined the reproduction right as "the right to duplicate the sound recording in a tangible form that directly or indirectly recaptures the actual sounds fixed in the recording" and provided specifically that "this right does not extend to the making or duplication of another sound recording that is an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording." (25) To illustrate, consider a cassette tape with a solo acoustic guitar track. Under the SRA, a copyist would infringe the sound recording copyright by directly recording the playback of the tape (imagine holding a microphone up to a speaker, for instance). The copyist would avoid infringement, however, if she were to make a recording of herself playing the guitar, even if her performance perfectly mimics the original cassette. So long as the actual sounds of the recording are not reproduced, there is no infringement. (26)
Five years after the SRA, Congress passed a complete overhaul of the copyright laws with the Copyright Act of 1976 ("1976 Act"). (27) While the Act did many things, of relevance to our discussion is its incorporation of the SRA into the new [section] 114 titled "Scope of exclusive rights in sound recordings." (28) As its name implies, this section defines the boundaries of the exclusive rights in sound recordings granted by [section] 106. The 1976 Act structured Title 17 so that copyrightable subject matter is defined in [section] 102, the exclusive rights afforded to that subject matter are given generally in [section] 106, and then [section] 106 expressly limits those exclusive rights by the applicable provisions in (what are now) [section][section] 107-122. (29) Consistent with the definitions and boundaries in the SRA, sound recordings are defined in [section] 101, (30) recognized as copyrightable subject matter in [section] 102(a)(7), granted the broad suite of exclusive rights in [section] 106. Section 114 then pulls back on those exclusive rights to set clear limits.
Principally, [section] 114 limits the exclusive rights in sound recordings to reproduction, adaptation, distribution, and, after 1995, public performance via digital audio transmission. (31) While the adaptation right was a new expansion, the 1976 Act largely transplanted the language of the SRA in defining the scope of the reproduction right, primarily only making technical changes to its language to conform to the new statutory structure. (32) Importantly, the 1976 Act retained the independent fixation infringement exception, but with slightly altered language. Where the SRA provided that "the making or duplication of another sound recording that is an independent fixation of other sounds" (33) did not infringe the reproduction right, the 1976 Act phrased it as "the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds." (34) While [section] 114 has undergone significant revision since the passage of the 1976 Act, none of the section's nine amendments have altered the independent fixation exception of [section] 114(b). (35) Thus, the previous guitar player example still holds true: so long as the actual sounds of the recording are not recaptured, the copyist does not infringe the sound recording copyright.
Understanding the legal concept of the sound recording copyright, let us now briefly examine its most common factual application--digital sampling.
Sampling, perhaps most prevalent in the rap and hip-hop genres, refers to the act of copying and transplanting segments of an existing recording into a new song. (36) The range and motivation of use covers everything from forming the new song entirely around a distinctive looped sample--as in Eminem's loop of the bassline in Labi Siffre's I Got The... (37) in My Name Is (38) or Kanye West's loop of a vocal segment of Daft Punk's Harder, Better, Faster, Stronger (39) in Stronger (40)--to adding embellishments with quick, isolated segments--as in the approximately two-second military vocalization sound effect that opens Kanye West's Jesus Walks. (41)
Artists can evoke older songs through sampling and thereby comment on the original or add their own personal touch, but of primary value is the substantially reduced investment in time, labor, and capital afforded by sampling. (42) For example, if a rapper wants to loop a particular, recognizable guitar riff as the main section of his song, he can either play and record the riff himself, hire a session musician to play the riff, or just rip the riff directly from the original recording. In the first two instances, substantial time will go into ensuring that the timing and tone of the riff match the original; that time will be spent in a...