Music Law Advisory Bulletin
"Get a License or Do Not Sample"
[Sept. 2004]
And thus spoke the Sixth Circuit in the recent case, Bridgeport
Music, Inc. v. Dimension Films, 2004 WL 1960167 (6th Cir. Sept.
7, 2004), the first appellate decision to require artists and studios
to obtain a license every time they sample a snippet of music no
matter how short and unrecognizable it may be. The Bridgeport
case involved a two-second sample of a guitar solo from the George
Clinton song, “Get Off Your Ass and Jam.” This sample
was copied, slightly altered, and used in the NWA rap song, “100
Miles and Runnin’,” which was then included on the soundtrack
of the movie, “I Got the Hook Up.” In granting summary
judgment for the defendant, the district court concluded that no
reasonable juror, even a George Clinton fan, would recognize the
sample unless informed of the source. As a result, it held that
the copying was de minimis and therefore not actionable.
The Sixth Circuit accepted the district court’s characterization
of the two-second sample, but refused to let the defendant off the
hook. Based on what it described as a “literal reading”
of the copyright statute, the Sixth Circuit held that the de
minimis defense was inapplicable to the copying of sound recordings.
On this point, it distinguished sound recordings from musical compositions,
to which the de minimis defense has been applied. See,
e.g., Newton v. Diamond, 349 F.3d 591, 594-95 (9th Cir. 2003).
Why the difference? First, the Sixth Circuit believed the text of
Section 114(b), which governs sound recordings, specifically precluded
a de minimis defense because it granted the exclusive right
to rearrange, remix, and otherwise alter—i.e., to sample—to
the copyright holder. Second, it argued that there was a fundamental
difference between the copying of a “song” and the actual
sounds that are fixed in a medium; the latter is “a physical
taking rather than an intellectual one.”
The Sixth Circuit downplayed the significance of its decision:
“To begin with, there is ease of enforcement. Get a license
or do not sample. We do not see this as stifling creativity in any
significant way.” Of course, this assertion will be debated
vigorously, especially in the context of hip hop music, which regularly
incorporates samples of older recordings into new works. In the
meantime, the decision suggests that the industry’s previous
laissez-faire attitude towards sampling may soon succumb to a more
litigious disposition.
For more information, please contact:
This Advisory is a publication of the Music
Law Group of Davis Wright Tremaine LLP. Our purpose in publishing
this Advisory is to inform our clients and friends of recent developments
in the music industry. It is not intended, nor should it be used,
as a substitute for specific legal advice as legal counsel may be
given only in response to inquiries regarding particular situations.
Copyright © 2004, Davis Wright
Tremaine LLP.
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