A New "Zero-Tolerance" Copyright
for Sampling in Digital Recording
By J. Andrew McKinney, Jr.
An important new development in the law has made the world a much more dangerous
place for musicians and other recording artists who enjoy
“sampling” or making digital copies of sounds owned by others.
This past September, the 6th U.S. Circuit Court of Appeals
in Cincinnati laid down a new, bright-line test for determining when a sound
recording is infringed. In Bridgeport Music Inc. v. Dimension Films,
(Nos. 02-6521 and 03-5738, 2004 FED App. 0297P (6th Cir.)) the court held that
any copying of a sound recording is infringement, even if the recorded sound
is altered substantially.
This case, if followed elsewhere, represents a substantial
new trend in the law and should put anyone in the recording industry on notice.
More particularly, the 6th Circuit’s decision is a
cautionary tale for hip-hop and rap recording artists who frequently sample
and then incorporate small segments of others’ recordings into their
Many consider this kind of sampling a form of electronic
theft, and in copyright circles a debate is raging on just how much one can
permissibly copy before infringing copyright in an unlicensed, sampled work.
With this new decision, the 6th Circuit now holds that even
if tiny, unrecognizable snippets of music are copied and altered so that they
no longer sound anything like the original snippets, it still constitutes infringement.
Prior court rulings have indicated that such de minimis copying did not infringe.
The court’s ruling arose from a three-note guitar riff
that the rap group NWA included as part of a recording entitled “100
Miles and Runnin’”. The riff was characterized as follows: “The
portion of the song at issue here is an arpeggiated chord – that is,
three notes that, if struck together, comprise a chord but instead are played
one at a time in very quick succession – that is repeated several times
at the opening of “Get Off”. The arpeggiated chord is played on
an unaccompanied electric guitar. The rapidity of the notes and the way they
are played produce a high-pitched, whirling sound that captures the listener’s
attention and creates anticipation of what is to follow.” (Bridgeport,
230 F. Supp.2d at 839.)
The offending sample appeared five times in NWA’s recording,
which was used in the soundtrack for a movie entitled I Got the Hook Up.
The NWA recording included a two-second sampled segment taken from a four-second
sequence from another recording entitled “Get Off Your Ass and Jam”,
by musicians George Clinton and Parliament-Funkadelic. In NWA’s recording,
the pitch of the sampled guitar riff was lowered and the pitch-altered sampled
segment was repeated and extended in time to 16 beats.
Plaintiff Westbound Records claimed to own the sound recording
copyright in the sampled riff and sued the filmmakers for copyright infringement.
The trial court dismissed Westbound’s claim for infringement of its sound
recording, concluding in a summary judgment that the sampling did not
“rise to the level of a legally cognizable appropriation” because
the sample was not protected by copyright law because it was not “original”;
in other words, the sample was legally insubstantial and therefore did not
amount to actionable copying under copyright law.
Westbound appealed, and a three-judge appellate panel reversed
the trial court’s ruling. The Honorable Ralph B. Guy, Jr., wrote the
appellate opinion. The court ruled that unlike other copyrighted works sound
recordings can be infringed even if the copying is “only de minimis”.
Judge Guy made this distinction in large part because of the limited nature
of copyrights in sound recordings. Judge Guy reasoned that sound recordings
receive a much narrower scope of protection than, for example, books and movies,
noting that federal copyright law protects a sound recording only against unauthorized
duplication of the actual recording. Judge Guy concluded that “the world
at large is free to imitate or simulate” a recorded performance.
In view of the limited nature of copyrights in sound recordings,
Guy found that Congress had intended for the statute to be read literally,
and so held that because 17 USC § 114(b) gives a sound recording copyright
holder the exclusive right “to duplicate the sound recording,” any
duplication, no matter how minor, is an infringement. The section also
provides that a sound recording copyright holder has the exclusive right to
make a derivative work “in which the actual sounds fixed in the sound
recording are rearranged, remixed, or otherwise altered in sequence or quality.”
Thus, the court held that any unauthorized sampling of a sound recording is
an infringement, even if the sample winds up greatly altered from the original.
The ruling has raised eyebrows in the copyright community
because it seems to ignore both the “de minimis taking” defense
as well as the concept of
“fair use.” Fair use is a statutory defense permitting limited
use of copyrighted works for selected purposes such as academic criticism,
news reporting and scholarly research.
Many artist and record company attorneys consider the fair-use
defense to be a very important check on the monopoly power of copyright owners
and so have vigorously criticized this bright-line rule for infringements of
sound recordings. Some characterize the ruling as having “swept the fair-use
Others note that the 6th Circuit’s ruling doesn’t
leave much room for fair use but observe that fair use may be unnecessary for
sound recordings as a recording artist can always legally imitate the sounds
in a newly recorded performance.
Typically, the 2nd or 9th Circuits are the most influential
in copyright matters, possibly because the entertainment and publishing industries
are concentrated in New York and California. It remains to be seen whether
this new bright-line rule (from the 6th Circuit, serving the Nashville music
industry, among others) will help define the legal standard in our 4th Circuit
and elsewhere. In any event, this decision as well as the debate on sampling
So who owns the sounds sampled in your client’s work?
J. Andrew McKinney, Jr., is a member of the U.S. Patent Bar, the Maryland
State Bar and is a partner with in the Baltimore office for Jones, Tullar & Cooper,
PC, an Arlington, VA law firm specializing solely in Intellectual Property matters.