NUDGING THE NEEDLE: ARE WE FINALLY EMERGING FROM THE SORRY STATE OF THE LAW REGARDING DIGITAL SAMPLING OF SOUND RECORDINGS?
Digital sampling was introduced to the music industry in 1979. Since then, sampling has become a staple of music production, first in the rap and hip-hop world, and now pervasive in many flavors of popular music. Sampling created a whole new artistic medium for recording artists. However, despite its prevalence in recorded music today, United States copyright law with respect to the legality of using digital samples in recorded works remains stuck in an endless loop.
Things did not get off to a good start for recording artists who incorporated digital samples into their recorded works. The first digital sampling case, Grand Upright Music Ltd. v. Warner Bros. Records, Inc. involved a request for an injunction to stop Warner Brothers from releasing a rap song containing a sample from the Gilbert O'Sullivan recording, "Alone Again (Naturally)." The first line of the court's opinion in the case quotes the Seventh Commandment, "Thou shall not steal." That's all you need to know about the opinion to know how the dispute was decided.
Fast-forward to 2005 and the case of Bridgeport Records v. Dimension Films. Bridgeport involved a lawsuit by a so-called "sample troll" against a film, the soundtrack featured a sound recording that included a two second snippet of a guitar solo from a George Clinton song. The sample was looped, the pitch lowered and included for 16 beats of the new sound recording. The lower court in the case found that no reasonable jury, even one familiar with George Clinton's music, after listening to the work containing the sample would be able to recognize its source. However, on appeal, the Sixth Circuit Court of Appeals held the traditional "substantial similarity" test for copyright infringement is inapplicable. In short, the Sixth Circuit held no de minimus exception to copyright infringement of a sound recording exists. As in Grand Upright, the Bridgeport court was equally categorical in its ruling, proclaiming that recording artists should, "Get a license or do not sample."
The Sixth Circuit's policy rationale for its decision was particularly troubling. First, the court did not see any stifling of creativity resulting from its categorical holding. The court argued that a recording artist is free to recreate its own recording of a previous recording if it does not want to obtain a license. Second, in refuting arguments that requiring licensure of all samples would subject record producers to unreasonable pricing, the court found that the "market will control the license price and keep it within bounds." Third, the court cited with approval the argument that permitting unlicensed digital sampling would be tantamount to creating a forced subsidy from one recording artist to another.
The Sixth Circuit's statement that its ruling would not stifle creativity demonstrates its lack of understanding and appreciation of the intrinsic artistic value of postmodern musical art forms, such as rap and hip hop. For genres such as rap and hip hop, the recording project is musical bricolage and intertextualism - art created from a variety of existing materials, combined and related to new materials and ideas to create a whole new original work of art. Samples are a medium in this art form. So, for the Sixth Circuit to say that a recording artist must obtain permission to use samples with no exceptions is akin to a court stating that a collage artist must obtain advance permission to use each item it includes in a new work. Such a rule, if enforced, would not just stifle new forms of creativity in the recording arts - it would make it entirely infeasible to create at all.
The Sixth Circuit also demonstrated its ignorance for the realities of the music industry when it stated that the market would maintain reasonable license prices for copyrighted works. What the court failed to recognize is that the grant of a copyright is the grant of a monopoly. There are no market forces at work in a copyright owner's decision on the terms under which it should license a sound recording. Anyone who has ever tried to clear a sound recording license for an unknown artist from an established record company should understand this.
Finally, the argument that liberalizing the use of unlicensed digital samples will result in a subsidy from one producer to another has much less to do with the court's concern for those that financed or toiled to create the sampled recording, and more to do with an attitude of condescension toward rap and hip hop music as an art form. To label rap and hip artists as "free loaders" looking for nothing more than a cheap way to produce records, at someone else's expense, exposes an unfortunate prejudice toward an art form they don't understand, and don't want to understand.
Thankfully, there are some signs that the needle is being nudged forward. Last December, a federal district court in Florida flatly rejected the Sixth Circuit's categorical prohibition on unlicensed digital sampling. In Seregama India, Ltd. v. Mosely, the court addressed whether a one second snippet of a sampled work incorporated into a sound recording constituted copyright infringement. The court, rejecting Bridgeport Records held it did not. Building on an opinion by the 11th Circuit Court of Appeals, the Seregama court held the "substantial similarity" test applies in such situations. Because the resulting work containing the sample was not substantially similar to the original sound recording from which the sample was taken, the court found no infringement had occurred.
The law is always slow to change. However, it is surprising that an artistic recording technique that has been around for 30 years has yet to gain acceptance as a legitimate form of creative expression in the eyes of the law. The Seregama decision is a step in the right direction. The rule fulfills one of the key purposes of United States copyright law - to promote creativity and innovation in art by striking a balance between the protection of creative works from piracy and the recognition that existing art influences and catalyzes new artistic creations.
