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"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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