Taking New Steps Against Digital Sampling: The Sixth Circuit Lays Down the Law on Digital Sampling, but Will it Really Improve Industry Practices?

In Bridgeport Music, Inc. v. Dimension Films,\u27 the Sixth Circuit tackled an issue that has been plaguing the music industry for nearly two decades. Digital sampling is a staple of the rap and hip-hop creative process, but there is very little precedent on or clarity about how to determine if sampling infringes on a sound recording copyright. In Bridgeport I, the defendant, No Limit Films, released the film I Got the Hook Up (Hook Up) and included the song 100 Miles and Runnin\u27 ( 100 Miles ) on the film soundtrack. As with many typical rap songs, 100 Miles sampled from another song. The plaintiff, Westbound Records, Inc. ( Westbound ), claimed co-ownership of the sound recording copyright to the sampled song, Get Off Your Ass and Jam ( Get Off ), by George Clinton, Jr. and the Funkadelics. Although No Limit Films obtained an oral license from the co-owners of 100 Miles to use the song in the film soundtrack, Westbound claimed that 100 Miles contained an unauthorized sampling of Get Off

Return of the De Minimis Exception in Digital Music Sampling: The Ninth Circuit\u27s Recent Holding in VMG Salsoul Improves Upon the Sixth Circuit\u27s Holding in Bridgeport, But Raises Questions of its Own

Sampling is a musical production practice that has become increasingly common since the 1980s. A producer samples by copying a section of a sound recording and inserting it into the piece of music she is producing. The type of sound recording sampled by producers can vary vastly from piece to piece. Numerous pop and hip hop songs sample from songs of various genres (rock, classical music, or other pop songs, for example). Audio from a film, commercial, or speech may also be inserted into a song. Typically, the purpose of these samples is either to make use of the musical value of the sample or to trigger some sense of familiarity in the listener. Some artists have made a career entirely out of sampling sections of different songs and fusing them into one piece. Often, samples are somehow altered or adapted to make the sound fit within the new piece. This may include altering pitch, key, or speed, and may require the producer to isolate the sample from other sounds that occur simultaneously in the original work. Samples also tend to be short segments of the original work, no more than a few seconds long. However, while these are the trends in sampling, they are not the rule. Predictably, sampling creates a copyright issue when the sampled piece is under copyright and the sampling producer does not acquire a license to use the sampled copyrighted material. In a number of copyright contexts outside of music sampling, courts have found that there exists a de minimis exception to copyright infringement. This exception provides that even where copyrighted material is used without a license, in cases where the use was particularly brief or otherwise insubstantial, the unlicensed use will not constitute copyright infringement, even if all other elements of copyright infringement are met. Within the context of the music industry, a circuit split has emerged with respect to the recognition of the de minimis exception. Specifically, the split revolves around recognition of the exception where a producer of a musical work samples a copyrighted digital sound recording without license to do so. In 2005, the Sixth Circuit held in Bridgeport Music, Inc. v. Dimension Films that the de minimis exception does not exist in the context of digital sound sampling. Therefore, the court held, all unlicensed sampling of copyrighted digital sound recordings is completely prohibited, no matter how short or minimal the sample. Eleven years later, in 2016, the Ninth Circuit reached the opposite conclusion, holding that a de minimis exception does exist in the context of digital sound sampling. Therefore, unlicensed sampling of copyrighted digital sound recordings does not constitute copyright infringement if the average audience would not recognize the appropriation. While the Ninth Circuit’s opinion is persuasive in its legal analysis, which focuses heavily on congressional intent, the average audience test for de minimis use that follows from its ruling creates certain significant problems that do not exist under the Sixth Circuit’s bright-line rule prohibiting all unlicensed sampling. Parts I, II, and III of this note will explain the differences between the Sixth Circuit’s reasoning in Bridgeport and the Ninth Circuit’s reasoning in VMG Salsoul. While the focus of these parts is on illustrating the flaws in the Sixth Circuit’s legal analysis, it will also introduce the complications that arise from the Ninth Circuit’s average audience test, which do not exist under the Sixth Circuit’s simpler, bright-line rule. Part IV will introduce scholarly criticism of another test used in copyright contexts—the substantial similarity test—and examine the ways in which the average audience test announced by the Ninth Circuit in VMG Salsoul shares the same flaws for which the substantial similarity test has been criticized. Finally, Part V will examine proposals for improving upon the average audience test

Sound Kitchen: Sampling in der Popmusik

Klassische Analysewerkzeuge stellten lange Zeit den Schwerpunkt der Musikwissenschaft und Musiktheorie bei der Betrachtung von Popularmusik dar. Dass die sogenannten primären Parameter (Melodik, Harmonik, Rhythmik und Form) wenig Aufschluss über die Individualität eines Songs preisgeben, scheint mittlerweile unbestritten. Verweise darauf, dass auch die Interpretation und Tonstudiotechnik Bestandteil der Untersuchung sein sollten, finden sich schon Mitte der 60er Jahre.1 Daraus resultiert eine stärkere Einbeziehung dieser sekundären Klangparameter und damit des Sounds. Den Schwerpunkt dieses Textes bilden das Sampling und das daraus entstehende elementare Klangereignis. Welche Funktionen nimmt das Sampling innerhalb der Musik ein? Und wie kann diese Art von Klangereignis analytisch betrachtet werden? Anhand musikalischer Beispiele soll aufgezeigt werden, wie sich bis heute eine neue Klangästhetik aus den technischen Möglichkeiten entwickelt hat. Die Betrachtung des Songs »Running« von Moderat soll zudem eine mögliche Form der analytischen Auseinandersetzung mit samplebasierter Musik aufzeigen.For a long time, classical analytical tools represented the focus area of musicology and music theory in researching popular music. It is now known that the primary parameters (melody, harmony, rhythm, and form) do not give enough information about the individuality of a song. From the mid-1960s we can find references to analyses which consider not only the primary parameters but also the performance and the recording technology. As a result, secondary sound parameters and sound in general became more involved. Sampling as an elementary sound event forms the focus of the following text. What function does it have in music? How can this type of sound event be observed in an analytical way? Musical examples show the development of a new sound aesthetics which came along with the development of technical opportunities. The song »Running« by Moderat provides an example of an analytical discussion of sample-based music

Care for a Sample? De Minimis, Fair Use, Blockchain, and an Approach to an Affordable Music Sampling System for Independent Artists

Thanks, in part, to social media and the digital streaming age of music, independent artists have seen a rise in popularity and many musicians have achieved mainstream success without the affiliation of a major record label. Alongside the growth of independent music has come the widespread use of music sampling. Sampling, which was once depicted as a crime perpetrated by hip-hop artists, is now prevalent across charttopping hits from all genres. Artists have used sampling as a tool to integrate cultures, eras, and styles of music while experimenting with the bounds of musical creativity. Artists whose works are sampled have profited from royalties and the exposure of their original work in modern art. However, the laws that shaped the sample licensing system helped solidify financial and political obstacles that prevent independent artists from sampling. Therefore, while major label-affiliated artists can use their status and financial capital to bypass the obstacles, it is practically impossible for independent artists to afford sampling and participate in modern music’s sonic creativity

Split Chords: Addressing the Federal Circuit Split in Music Sampling Copyright Infringement Cases

This Note offers a comprehensive analysis of the current circuit split regarding how the de minimis doctrine applies to music sampling in copyright infringement cases. Since the Sixth Circuit\u27s 2005 landmark decision in Bridgeport Music Inc. v. Dimension Films, critics, scholars and even judges have dissected the opinion and its bright line rule of “get a license or do not sample.” In May 2016, the Ninth Circuit issued its opinion in VMG Salsoul v. Ciccione. The Ninth Circuit explicitly declined to follow Bridgeport, holding that analyzing a music sampling copyright infringement case requires a substantial similarity analysis, including applying a de minimis analysis. The Ninth Circuit’s decision created a circuit split and an unsettled area of intellectual property law. This Note seeks to promote critical analysis of this contested area of law by exploring the underpinnings of the substantial similarity and de minimis doctrines, as well as the holdings of each case and their arguments. The Note offers three proposals regarding how courts should handle the circuit split, and in doing so creates a distinctive way of looking at the music sampling issue to help the federal judiciary frame the problem in a more expansive way

Envisioning a Compulsory-Licensing System for Digital Samples Through Emergent Technologies

Despite the rapid development of modern creative culture, federal copyright law has remained largely stable, steeped in decades of tradition and history. For the most part, copyright finds strength in its stability, surviving the rise of recorded music, software programs, and, perhaps the most disruptive technology of our generation, the internet. On the other hand, copyright’s resistance to change can be detrimental, as with digital sampling. Although sampling can be a highly creative practice, and although copyright purports to promote creativity, current copyright law often interferes with the practice of sampling. The result is a largely broken system: Those who can legally sample are usually able to do so because they are wealthy, influential, or both. Those who cannot legally sample often sample illegally. Many scholars have suggested statutory solutions to this problem. Arguably, the most workable solutions are rooted in compulsory licenses. Unfortunately, implementing these solutions is practically difficult. Two recent developments invite us to revisit these proposals. First, with the passage of the Music Modernization Act (“MMA”), Congress has evinced a willingness to “modernize” parts of copyright law. Second, emergent technologies—from the MMA’s musical-works database to blockchain to smart contracts—can be leveraged to more easily implement a compulsory-licensing solution. This time around, rather than simply discuss why this solution is favorable, this Note will focus on how it can be implemented

Unmasking Hybridity in Popular Performance

This paper explores cultural hybridization in popular music and the eroticization of the exotic eastern aesthetic. Using musicology and anthropology as tools, the paper examines varying perspectives of the artists, audience and marginalized groups. Although cultural appropriation has been used recently as a blanket buzzword in mainstream dialogue, it does provide a platform to discuss complex issues on gender, race and sexuality that has been muddled by colonial mentalities