Music sampling lawsuits: does looping music samples defeat the de minimis defense?

• Author: Wilson, Stephen R.
• Position: Report

INTRODUCTION

Def Jam recording artist 3rd Base were prophetic when they rapped, (1) "[Y]a boosted the record then ya looped it, ya looped it ... now ya getting sued kinda stupid...." (2) The lyrics refer to the practice of sampling, or more specifically, looping unauthorized samples.

Sampling is the process of digitally copying a portion of a pre-existing recording and inserting this "sample" into a new recording. (3) Music fans may recognize Jimmy Page's guitar riff (4) from Led Zeppelin's Kashmir (5) on Puff Daddy's 1998 single Come With Me. (6) Additionally, record producers commonly incorporate unrecognizable samples into their songs. (7) For instance, Come with Me also contains a four bar drum sample from Led Zeppelin's When the Levee Breaks. (8)

Sampling pre-existing recordings affords the record producer significant benefits. (9) A producer may reduce the costs associated with traditional recording when he uses samples because doing so minimizes the need to hire live musicians. (10) For all its benefits, however, sampling preexisting recordings without the permission of the composer (11) and record company (12) violates copyright law. (13)

The amount of appropriation required for actionable copying, however, is currently unascertainable. (14) Few unauthorized sampling lawsuits ever reach the trial level. (15) Settlements are common in sampling lawsuits primarily because case law offers sparse judicial guidance as to what constitutes an unlawful appropriation. (16) This circular problem results in scant case law.

The music industry is hopeful that a couple of sampling lawsuits pending in court will yield some insight into the unauthorized sampling issue. (17) In Nashville district court, Bridgeport Music filed a 1077-page complaint, on behalf of funk music legend George Clinton and others, alleging hundreds of instances of unauthorized sampling from record and publishing companies, artists, and others. (18) Additionally, in the Southern District of New York, rap artist Marlon Williams, professionally known as Marley Marl, filed a complaint against Calvin Broadus, professionally known as Snoop Dogg, alleging copyright infringement for sampling a portion of his song The Symphony. (19) These cases may serve as a benchmark for future sampling cases if the court renders a detailed judicial decision.

The courts are unlikely to establish a standard for determining the threshold for unlawful appropriation. (20) Generally, the trier of fact determines whether the appropriation amounts to copyright infringement by applying various tests and theories. (21) The analysis becomes increasingly difficult, however, when the producer has looped the sample in question. (22) Does looping a de minimis sample change the unlawful appropriation analysis? This note will analyze the effectiveness of the de minimis defense when producers loop unauthorized samples. (23)

Part I of this note will define and explain the digital sampling process and summarize the historical background and popularization of digital sampling and rap music. Part II will summarize the applicable copyright laws associated with unauthorized sampling including the fair use defenses. Next, Part III will examine the de minimis rule as an affirmative defense to copyright infringement. Specifically, Part III will define the de minimis defense, apply the defense as it relates to looped samples, discuss sampling cases generally, and examine de minimis copyright cases by analogy. Lastly, Part IV will conclude that looped samples may not fall within the de minimis defense purview.

1. DIGITAL SAMPLING

   1. Definition

      Digital sampling involves the process of capturing periodic samples of changing analog audio waveforms and transforming them into binary code. (24) In effect, the digital recording device takes snapshots of the analog voltages along a continuous and fluctuating line, and then assigns a binary code representing the voltage level at that particular time. (25) The "sampling rate" represents the speed the sampling device captures the samples, or assigns binary numbers. (26) The higher the sampling rate, the greater the bandwidth and thus the better the quality of sound. (27)

   2. History

      In 1979, an Australian company introduced the first digital sampler to the audio production market. (28) Initially, producers used the digital sampler as an editing tool to save them time, money and resources. (29) As digital sampling technology progressed, other digital equipment manufacturers began to produce affordable sampling machines. (30) The low-cost sampling devices enabled professional keyboard players and home recording enthusiasts to incorporate digital sampling into their setups. (31) The popularity of home sampling increased subsequent to the development of rap music. (32)

      Rap music got its start as early as 1973 when pioneer Bronx-style disc-jockeys (DJs) began to distinguish themselves from their disco counterparts by playing only the most percussive portions of a record, known as the break beat. (33) As the popularity of Bronx-style DJing increased, the DJs began to use members of their crew as "MCs" to provide vocal entertainment. (34) Using two turntables and a stereo mixer, the DJs would extend and combine the break beats into new creations that would last as long as they wanted. (35) Many DJs turned to audio production after finding music producers using the digital sampler to reproduce the DJs' live performance onto a recorded medium. (36) The record industry took notice of the rising popularity of the new musical style.

2. COPYRIGHT LAW

   1. Overview

      A copyright is a form of protection, codified by the Copyright Act of 1976 (Act), for authors of original works in literature, drama, music, visual arts and other creative arts subjects. (37) The Act grants the copyright owner a bundle of exclusive rights. (38) An author automatically attains copyright protection the moment he affixes his work in a tangible medium for the first time. (39)

      The legislature enacted these exclusive rights with the intent to motivate authors to create original works by providing them with economic protection. (40) The Act limits these exclusive rights, however, by setting the duration of exclusivity and by establishing the doctrine of fair use. (41) The Act protects a very broad range of creative works and addresses a multitude of copyright issues that are beyond the scope of this note. (42)

   2. Music Sampling Protection

      Unlike many other copyrighted works, the Act affords musical recordings two separate copyright protections. (43) The first copyright protects the composition itself, including the lyrics and music notation affixed in written form. (44) The second copyright protects the actual sound recording, which is the sound that is affixed in a tangible medium, such as a compact disc. (45) Unauthorized sampling impacts each copyright. (46)

      A copyright infringement allegation requires the analysis of three elements. (47) The three elements are proof of ownership, proof of copying and unlawful appropriation. (48) In many unauthorized sampling cases, it may be difficult to prove copying if the musical sample is not a melodic, or an easily identifiable, musical phrase. (49) Frequently, producers compound this problem when they alter the sample by changing the pitch or tempo, or alter it by other electronic means. (50) Proof of copying may serve as the most difficult barrier in establishing a valid copyright infringement lawsuit. (51)

      Once the court establishes ownership and copying, it applies an unlawful appropriation analysis. (52) The trier of fact determines whether a substantial similarity exists between the original and infringed work that exceeds the threshold for an unlawful appropriation. (53) The difficulty, however, is that no bright line rules exist to indicate the threshold level. (54)

   3. Fair Use Defense

      Exceptions exist to the exclusive rights granted to copyright owners. (55) The fair use doctrine allows someone other than the copyright owner to use the copyrighted work in a reasonable manner without permission. (56)

      The court will consider four non-exclusive factors when determining whether the fair use doctrine protects copyright infringement. (57) The court examines such factors as the alleged infringer's purpose and character for the use, (58) the nature of the use, (59) the substantiality of the portion used, (60) and the impact of the use on the potential market for the copyrighted work. (61) The application of the fair use doctrine arises when considering sampling issues. (62) The de minimis doctrine is a relevant consideration along with a fair use defense. (63)

3. DE MINIMIS

   1. Definitions

      The legal maxim "de minimis non curat lex" or "the law does not concern itself with trifles" is as applicable in the context of copyright laws as it is in other legal contexts. (64) For copyright law purposes, de minimis refers to actual copying that is so trivial that it falls below the required element of substantial similarity. (65)

      The court may implement the "ordinary observer" test to determine if two works are substantially similar. (66) Substantial similarity exists when an ordinary listener finds the aesthetic appeal of the two works as the same. (67) Applying this test, the court instructs the trier of fact to listen to the two works in an ordinary manner without trying to detect the disparities between the two works. (68) In essence, the test determines whether the listener would be disposed to overlook any disparities. (69)

      Substantial similarity between a plaintiff's work and the defendant's work is a necessary element for actionable copying. (70) To determine the genus of similarity, courts differentiate between the terms "comprehensive non-literal similarity" and "fragmented literal similarity." (71)

      Fragmented literal similarity occurs when the infringed work incorporates the literal copying of a portion of an original work. (72) Comprehensive...