Sounds Great! But It Sounds Very Familiar... Where to Draw the Line on Digital Sampling of Sound Recordings

• Author: Stephen Carlisle
• Position: Stephen Carlisle is the copyright officer of Nova Southeastern University, advising faculty, administration, and students on copyright issues. Prior to taking this position he practiced entertainment and copyright law in Florida for 26 years. His clientele included members of Lynyrd Skynyrd, The Outlaws, and Jaco Pastorius. He can be reached at...
• Pages: 16-19

14 LANDSLIDE n May/June 2017

Published in Landslide® magazine, Volume 9, Number 5 , a publication of the ABA Section of Intellectual Property Law (ABA-IPL), ©2017 by the American Bar Association. Reproduced with permission. All rights reserved. This

information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

In the middle of 2016, the Ninth Circuit Court of Appeals

muddied the waters on the legality of digital sam-

pling of sound recordings through its opinion in VMG

Salsoul, LLC v. Ciccone.1 There, for the rst time, an

appellate court held that the rule of de minimis non

curat lex applied to digital sampling, in direct con-

ict with the ruling of the Sixth Circuit Court of

Appeals on precisely the same point.2 The Sixth Cir-

cuit, in Bridgeport Music, Inc. v. Dimension Films,

had adopted a bright-line rule: “Get a license or do

not sample.”3 Notably the ruling of the Sixth Cir-

cuit (which covers Nashville) had been on the books

for over 10 years, without causing undue disruption

for the rather large music industry within the court’s

jurisdiction. Now the landscape for the practicing

attorney in advising clients in the music business has

shifted. The answer to the question of “can I sam-

ple this?” will depend in large part on where you live

(or where you’re sued) and how likely your court of

appeals is going to follow the reasoning on either side.

What Is Sampling?

Sampling can be best understood as making an audio copy

of a musical fragment or phrase that is then placed into a

new recording where it can be rearranged or manipulated.

This practice in effect makes the resulting new recording a

derivative work, subject to the author’s permission under 17

U.S.C. §106(2), which applies not only to the musical work,

but also to the sound recording.

The legal issues surrounding “sampling” are as old as rap

itself. The very rst mainstream rap hit, the Sugarhill Gang’s

“Rapper’s Delight,” also spawned the rst legal dispute.4 The

three rappers used as the musical bed for their raps the instru-

mental introduction of Chic’s “Good Times,” composed by

Sounds Great!

But It Sounds Very Familiar . . .

Stephen Carlisle is the copyright ofcer of Nova Southeastern

University, advising faculty, administration, and students on copyright

issues. Prior to taking this position he practiced entertainment

and copyright law in Florida for 26 years. His clientele included

members of Lynyrd Skynyrd, The Outlaws, and Jaco Pastorius. He

can be reached at scarlisle@nova.edu.

WHERE TO DRAW THE LINE ON DIGITAL

SAMPLING OF SOUND RECORDINGS?

By Stephen Carlisle

Photo: iStockPhoto