Someone sent us a link to a discussion about an article that describes a recent court ruling which could potentially affect producers that utilize samples of recorded music. Excerpt:

“NASHVILLE, Tenn. – A federal appeals court ruled Tuesday that rap artists should pay for every musical sample included in their work — even minor, unrecognizable snippets of music…Lower courts had already ruled that artists must pay when they sample another artists’ work. But it has been legal to use musical snippets — a note here, a chord there — as long as it wasn’t identifiable.”

Although this decision does not alter copyright law, the opinion challenges the idea that the de minimis argument can be enforced if the defendant admits to sampling a copyrighted work. In this case Master P’s lawyers argued that the sample used in NWA’s “100 Miles and Runnin” was so minor and unrecognizable that “…no reasonable juror, even one familiar with the works of George Clinton, would recognize the source of the sample without having been told of its source.” The district court agreed and granted summary judgement. But the lawyers of the plaintiffs argued that because No Limit did not deny the riff was sampled that they were liable under copyright law.

“…The heart of Westbound’s arguments 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 copyrighted sound recording.”

The appeals court agreed with the argument and sent the case back to the lower court. So what does this mean for Master P? He might have to reach in his pocket and let go of some petty cash. And what does this mean for Indie-type diggers searching for that perfect break? Probably not much. Most producers nowadays feel better the more obscure the sample is anyway and the chances of an interested party finding a copy of the 1000 that were pressed is unlikely.

Update [09.09.04]- Couldn’t resist posting activists Professor Lessig’s comments about the ruling.

“Sampling, we’re told, is piracy. But be certain to see the 19 footnotes in this relatively brief opinion, or the 28 separate quotes the opinion includes from other peoples work. I assume the court got a license for those.
Now that’s not quite fair. The court’s decision turns upon its “literal” reading of the sound recording statute. The sound recording statute has no de minimis exceptions, the court held. So while you are free to copy three notes from a musical composition, you can’t copy the same three notes from a recording. So copying (so long as de minimis) is fine; cut & paste is not. It is a “bright-line” rule the Court has crafted: Ask permission first. (And don’t worry, they might have added. It’s simple.) So once again: life in the analog world is freer than life in the digital world. You can do it, just don’t use technology to do it — unless, of course, your lawyer has spoken to their lawyer.”

Update [09.09.04]- Excerpt from court opinion provides further insight into arguments from both sides:

“Why is there no de minimis taking or why should substantial similarity not enter the equation.(10) Our first answer to this question is what we have earlier indicated. We think this result is dictated by the applicable statute. Second, even when a small part of a sound recording is sampled, the part taken is something of value.(11) No further proof of that is necessary than the fact that the producer of the record or the artist on the record intentionally sampled because it would (1) save costs, or (2) add something to the new recording, or (3) both. For the sound recording copyright holder, it is not the “song” but the sounds that are fixed in the medium of his choice. When those sounds are sampled they are taken directly from that fixed medium. It is a physical taking rather than an intellectual one.

This case also illustrates the kind of mental, musicological, and technological gymnastics that would have to be employed if one were to adopt a de minimis or substantial similarity analysis. The district judge did an excellent job of navigating these troubled waters, but not without dint of great effort. When one considers that he has 800 other cases all involving different samples from different songs, the value of a principled bright-line rule becomes apparent. We would want to emphasize, however, that considerations of judicial economy are not what drives this opinion. If any consideration of economy is involved it is that of the music industry. As this case and other companion cases make clear, it would appear to be cheaper to license than to litigate.(12)

Since our holding arguably sets forth a new rule, several other observations are in order. First, although we followed no existing judicial precedent, we did not pull this interpretation out of thin air.(13) Several law review and text writers, some of whom have been referenced in this opinion, have suggested that this is the proper interpretation of the copyright statute as it pertains to sound recordings.(14) Since digital sampling has become so commonplace and rap music has become such a significant part of the record industry, it is not surprising that there are probably a hundred articles dealing with sampling and its ramifications. It is also not surprising that the viewpoint expressed in a number of these articles appears driven by whose ox is
being gored. As is so often the case, where one stands depends on where one sits. For example, the sound recording copyright holders favor this interpretation as do the studio musicians and their labor organization. On the other hand, many of the hip hop artists may view this rule as stifling creativity. The record companies and performing artists are not all of one mind, however, since in many instances, today’s sampler is tomorrow’s samplee. The incidence of “live and let live” has been relatively high, which explains why so many instances of sampling go unprotested and why so many sampling controversies have been settled.

Second, to pursue further the subject of stifling creativity, many artists and record companies have sought licenses as a matter of course.(15) Since there is no record of those instances of sampling that either go unnoticed or are ignored, one cannot come up with precise figures, but it is clear that a significant number of persons and companies have elected to go the licensing route. Also there is a large body of pre-1971 sound recordings that is not protected and is up for grabs as far as sampling is concerned. Additionally, just as many artists and companies choose to sample and take their chances, it is likely that will continue to be the case.

Third, the record industry, including the recording artists, has the ability and know-how to work out guidelines, including a fixed schedule of license fees, if they so

Fourth, we realize we are announcing a new rule and because it is new, it should not play any role in the assessment of concepts such as “willful” or “intentional” in cases that are currently before the courts or had their genesis before this decision was

Finally, and unfortunately, there is no Rosetta stone for the interpretation of the copyright statute. We have taken a “literal reading” approach. The legislative history is of little help because digital sampling wasn’t being done in 1971. If this is not what Congress intended or is not what they would intend now, it is easy enough for the record industry, as they have done in the past, to go back to Congress for a clarification or change in the law. This is the best place for the change to be made, rather than in the courts, because as this case demonstrates, the court is never aware of much more than the tip of the iceberg. To properly sort out this type of problem with its complex technical and business overtones, one needs the type of investigative resources as well as the ability to hold hearings that is possessed by Congress.

These conclusions require us to reverse the entry of summary judgment on Westbound’s claims against No Limit Films.”