Another technological development in the 1980s, digital sampling, and an entire genre of music that developed around that technology, further strained the interpretation and application of the recent sound recording copyright. Digital sampling involves the use of a digital recording device (the “sampler”) to digitally record short fragments of sound that can later be edited, transformed, and replayed by the user within a new musical context. The recorded material can come from a new live recording or from copying parts of a previously existing recording.
Just as with the video cassette recorder and computer MP3 file sharing software, digital sampling technology is one that has a multitude of uses, only some of which result in infringement of sound recording copyrights. However, in the newly-emerging rap and hip-hop genres during the 1980s, the digital sampler became a fundamental and ubiquitous component of both the style and composition technique of those genres. Prior to the digital sampler, “DJ’s” would use one or more turntables to loop and “scratch” short portions of existing vinyl records as part of the musical fabric of rap and hip-hop. The digital sampler extended that technique and made it more accessible, convenient, and predictable through the application of digital recording technology to the process of reusing fragments of previously recorded material to create a new song.
Sampling is by its very nature a copying technology, so it is no surprise that sampling technology created a challenge for copyright law. Unfortunately, the application of copyright law to sampling has been, and remains, inconsistent and confusing. The first thing that we need to get straight about sampling and copyright is that when sampling is used in a recording, both the work (song) copyright and the sound recording copyright are both potentially involved. That is, sampling a pre-existing recording may result in two separate claims of infringement: the song copyright and the sound recording copyright. And each of those copyrights may be owned by different entities, and the merits of each of the two infringement claims will require a separate (though likely similar) analysis. It is critical to understand this fact and keep straight in your mind which copyright is being discussed when dealing with this issue. In this chapter, we are dealing primarily with the effect of sampling on the sound recording copyright, not the song (work) copyright.
The reason I do not include a separate chapter on how sampling involves the song copyright is that the legal analysis for song copyright infringement follows the same logic regardless of the technology involved. There are no legally distinct issues involved in determining whether a new song infringes on a copyrighted song that depend on whether or not a sampler was involved or not. In other words, the technology involved in copying does not change the legal analysis of song copyright infringement. The question this chapter addresses is whether the technology and technique of sampling changes the outcome of the sound recording copyright infringement analysis.
With respect to the sound recording copyright, the issue of technology complicates the legal analysis because the very concept of what constitutes a “copy” of a sound recording can vary dramatically depending on the technology. As we will see, this technological aspect involving sound recording copyrights has caused the law regarding sampling and sound recording copyrights to become muddled and controversial.
Sampling and the de minimus rule.
The controversy regarding sampling and the sound recording copyright has boiled down to an open legal dispute as to whether or not there should be a de minimus exception applied to sampling cases. In nearly all areas of the law, including copyright law with respect to the song copyright, there exists a legal principal, commonly stated in the original Latin as with many legal concepts, based on the phrase de minimis non curat lex, commonly shortened to just de minimis. This phrase translates loosely into English as “the law does not concern itself with trifles.” In other words, it is a legal concept used to express the concept that, even though a set of facts may indicate legal liability under the letter of the law, a specific case may involve such a trivial violation of the law that it should not result in liability.
To take an obvious example, when driving we would not expect to be pulled over by the police and issued a citation because we were driving one mile-per-hour over the speed limit, or even five miles-per-hour over the limit. The police apply a de minimis rule to their enforcement of the speed limit because they know that judges would also apply that principle and no ticket would be upheld for such a minor infraction. The de minimis exception applies in many areas of the law, including infringements of the song copyright. As discussed above, the song copyright uses the standard of substantial similarity to determine whether a songwriter has plagiarized a copyrighted song in creation of a new song. Copying two notes of a melody, or two words from a song’s lyrics, would in nearly all cases fall below the level of substantial similarity and thus also be examples of the de minimis rule in action.
However, with respect to the sound recording copyright, there exists a line of cases that have held that there can be no de minimis exception with respect to sampling. Those cases have held instead that there exists a bright line rule such that any amount of sampling of a copyrighted sound recording, regardless of whether it is even recognizable, will constitute infringement of the copyrighted sound recording. This line of reasoning reached its apex in the case of Bridgeport Music v. Dimension Films, in which the 6th Circuit Court of Appeals, based in Nashville, ruled in 2005 that there can be no de minimis exception in sound recording copyright infringement cases involving sampling. This case was very important because it came out of a federal circuit court of appeal and there was no Supreme Court decision on that issue, so the Bridgeport decision was at the time the highest court ruling on the subject.
The Bridgeport decision involved a two-second sample of an electric guitar riff from the Funkadelic song “Get Off Your Ass and Jam” (1975) which was then looped by the defendant for 16 beats in the song “100 Miles and Runnin’” from the film I Got the Hookup (1998). The Court of Appeals in Bridgeport summarized its holding as follows: “The heart of [the plaintiff’s] argument is the claim that no substantial similarity or de minimis inquiry should be undertaken at all when the defendant has not disputed that it digitally sampled a copyright recording. We agree and accordingly must reverse the grant of summary judgement [for defendant].” (798) The court went on to assert that “[t]he music industry, as well as the courts, are best served if something approximating a bright-line test can be established.” (799) “If,” the court asks rhetorically, “you cannot pirate the whole sound recording, can you ‘lift’ or ‘sample’ something less than the whole? Our answer to that question is in the negative.” (800) “When you sample a sound recording you know you are taking another’s work product,” the court observed, leading to the practical outcome of the case: “Get a license or do not sample.” (801)
Revival of the De Minimis Standard and a Circuit Split: VMG Salsoul v. Ciccone (Madonna) (2016)
In 2016, the 9th Circuit Court of Appeals issued a ruling overturning a summary judgement from the Central District of California that created a rare and momentous “Circuit split” between two U.S. Circuit Courts of Appeals. The split occurred because the 9th Circuit openly refused to follow the 6th Circuit’s opinion in the Bridgeport case discussed above. The 9th Circuit held that there is a de minimis defense to copyright infringement claims with respect to the sound recording copyright, and that the 6th Circuit had erred in holding that there was not.
The VMG Salsoul decision arose from the use of sampled horn hit in Madonna’s massive 1990 hit single, “Vogue.” The sample was taken from a horn hit lasting 0.23 seconds in the much less successful 1983 song “Ooh, I Love It (Love Break)” by The Salsoul Orchestra. An interesting aspect of the facts to this case is that the producer of Madonna’s “Vogue” was also the producer of the Love Break song, Shep Pettibone, and the one who created the sample. This is an unusual case of “self-plagiarism” because Pettibone did not own the copyright to the earlier sound recording, so was not actually suing himself. He was, however, named as a defendant (along with Madonna) in the case.
If Pettibone had not been the producer of both recordings, it seems unlikely that this lawsuit would have ever been filed. The sample in question is so short (0.23 seconds, though it is repeated several times), that it seems unlikely that anyone would have noticed where it had come from were it not for the fact that Pettibone was involved in both recordings, and had specifically directed his assistant to place the altered sample from his earlier work in Madonna’s new recording.
In its Salsoul decision, the 9th Circuit relied on the very short length and altered sound of the horn hit: “After listening to the audio recordings submitted by the parties, we conclude that a reasonable juror could not conclude that an average audience would recognize the appropriation of the horn hit. That common-sense conclusion is borne out by dry analysis. The horn hit is very short — less than a second. The horn hit occurs only a few times in Vogue. Without careful attention, the horn hits are easy to miss. Moreover, the horn hits in Vogue do not sound identical to the horn hits from Love Break.” (880)
The 9th Circuit explicitly declined to follow the 6th Circuit’s “bright-line” rule regarding sampling and sound recording copyright infringement despite the plaintiff’s specifically arguing for the court to follow that relatively new rule: “Other than Bridgeport and the district courts following that decision, we are aware of no case that has held that the de minimis doctrine does not apply in a copyright infringement case. Instead, courts consistently have applied the rule in all cases alleging copyright infringement.” (881) The 9th Circuit also pointed out that, despite the 6th Circuit’s decision, every other District Court outside the 6th Circuit had declined to follow it. (886)
The 9th Circuit’s interpretation of the U.S. Copyright statute convinced it that Congress intended for sound recordings to be treated similarly to other copyrighted works (including musical works), all of which are judged based on a standard of “substantial similarity,” and the court failed to find any language in the U.S. Copyright statute that excluded sound recordings from a de minimis standard. Finally, the 9th Circuit addressed the 6th Circuit’s reasoning in Bridgeport that the “bright-line” rule would lead to a clear enforcement of the law and a market-based system for licensing of samples: “[The 6th Circuit argues that] its bright-line rule was easy to enforce; that ‘the market will control the license price and keep it within bounds’; and that ‘sampling is never accidental’ and is therefore easy to avoid. Those arguments are for a legislature, not a court. They speak to what Congress could decide; they do not inform what Congress actually decided.” (887, quoting Bridgeport).
Because the 9th and 6th Circuit Courts of Appeal are both courts of equal standing, the split between them on this issue of law creates a conflict in how the law is interpreted. The lower District Courts in the 6th Circuit (based in Nashville) are required to follow the Bridgeport decision, just as the District Courts in the 9th Circuit (based in San Francisco) will be required to follow the VMG Salsoul decision. District Courts in other jurisdictions will be able to choose which of these two precedents to follow, or create their own interpretation, as they are not bound by either the 6th or 9th Circuit decisions.
As the 9th Circuit noted in its VMG Salsoul decision, most (if not all) District Courts outside the 6th Circuit have been following the same legal reasoning as the 9th Circuit in allowing a de minimis defense in both music works and sound recording copyright disputes, including those involving digital sampling. However, the 6th Circuit and its District Courts are still bound by the bright-line rule of the Bridgeport decision. That split will remain until the U.S. Supreme Court decides to accept an appeal on this issue, or the 6th Circuit decides to overturn its own decision. A Circuit Court split is one of the reasons the Supreme Court agreed to hear a case, so it seems likely that this issue will eventually be resolved.
The problem with such a split is that it provides an incentive for a plaintiff to forum shop — deciding to file a case in the 6th Circuit rather than the 9th Circuit if they want to take advantage of the bright line rule against a de minimis defense. Of course, in order to file in the 6th Circuit, which includes Nashville, the plaintiff will have to show that the courts in the 6th Circuit have jurisdiction over the case. Given the importance of Nashville in the music industry, it may often be possible for plaintiff’s to prove that court’s jurisdiction in their dispute.
“Sound alike” Recordings.
The issue of digital sampling brings up another related issue with a non-intuitive result. Imagine you decide that you love a recording of a song so much that you want to copy it as faithfully as possible, so faithfully that an average listener would not know your recording was not the original. For example, let’s say that recording is the Michael Jackson song “Thriller,” one of the biggest-selling songs of all time. You are aware that the recording is copyrighted as a “sound recording” and so you cannot literally reproduce it and pass it off as your own, as that would certainly be flagged as piracy and you would immediately be sued for copyright infringement of the sound recording when you tried to sell or otherwise distribute it. So, you come up with a new plan: because you are an excellent musician, vocal mimic and sound engineer, you believe you can perfectly imitate the sound and playing style of every instrument on that recording and even imitate Michael Jackson’s voice. After laborious efforts, you finally manage to recreate in your own home studio the exact sound of “Thriller” through your own efforts without actually duplicating the original recording through any technological means — you played all the instruments on your recording and sang all the vocal parts. But everybody who listens to your recording believes it’s Michael Jackson’s original recording and can’t believe it when you tell them otherwise.
Are you infringing on any copyrights when you try to market and sell your recording of “Thriller” under your own name?
Believe it or not, you would actually likely not be infringing on any copyrights through your self-produced sound alike recording, regardless of how indistinguishable it is from Michael Jackson’s recording. First, let’s deal with the issue of the musical work copyright (the song, rather than the recording). As we know, the U.S. Copyright law provides for a compulsory license for musical works, so that when you record a cover song, all you have to is give notice of your recording of the song to the copyright holder and ensure that the appropriate royalties are paid after sales or streams of your cover song. There is no infringement of the song copyright due to cover songs as long as the relatively simple steps are taken to assert the compulsory license.
But what about the sound recording copyright? Doesn’t your new recording, which sounds identical to the original, infringe on that copyright? The answer is, somewhat surprisingly, no. You imitated the original sound recording, but you did not literally reproduce it. The voices and instruments on your recording were all played and sung by you, not by Michael Jackson and his various studio musicians. You did not copy the original recording; you only imitated it when making your own recording. It does not matter how closely you imitated it; as long as you didn’t literally reproduce that recording, you are not infringing on the copyright.
The concept of the “sound alike” recording is even explicitly allowed in Section 114(b) the U.S. Copyright statute itself: “The exclusive rights of the owner of copyright in a sound recording … do not extend to the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording.”
After you’ve thought about this issue for a bit, I think you’ll come around to seeing that while at first counterintuitive, this result makes sense. The sound recording copyright extends only to a particular recording fixed at a particular place and time in some recording medium (vinyl, tape, computer file, etc.). The sound recording copyright does not apply to the sounds made by the instruments in that recording, or the playing style of the musicians in that recording, or the vocal style of the singer in that recording, etc. The sound recording copyright applies only to that specific and particular recording of those instruments, sounds, and voices. Any other recording of those sounds, instruments, and voices would be a separate sound recording, eligible for its own sound recording copyright. So, not only would your sound-alike recording of Michaels Jackson’s “Thriller” not violate the copyright of the original sound recording, your new recording of the song would itself be covered by its own sound recording copyright. If somebody were to copy your new recording of “Thriller,” they would be infringing on your sound recording copyright but not on the copyright of Michaels Jackson’s original sound recording.