The Court Gets "Hip" to Hip-Hop

By Jon Lee Andersen

            About a year ago I wrote an article about de minimus copyright infringement. The case discussed in the article involved the use of certain illustrations that appeared in the background of a TV commercial.  The court in this case set out the following definition of de minimus copying: that the copying of the protected material was is so trivial “as to fall below the quantitative threshold of substantial similarity, which is always a required element of actionable copying”. 

            Now, the 6^th Circuit Court of Appeals has changed the de minimus landscape a little. In its opinion in the case of Bridgeport Music v. Dimension Films set out some new de minimus law for the music industry. Here are a couple of background notes. First, in the recording business, there are frequently several copyright owners of a recording.  Typically, the composer or publisher owns the copyright to the words and music, while the recording artist or record label own the copyright to the recording itself. Second, there seems to have been an accepted acknowledgement within the music industry, and especially with the “hip-hop” genre, that “digital sampling” from other recordings is considered either fair use or de minimus copying for copyright purposes. In the case before it, the allegedly infringing recording had taken a two second section of a guitar solo from another recording, had lowered the pitch of the section, and then looped it to extend it to 16 beats. 

            When confronted with the copying in the lawsuit, the defendant offered two arguments: (1) that the section was not protected by copyright law because it was not original and (2) that the copied section was legally insubstantial.   

            The judges blew both of these positions off.  Addressing the first argument, they noted that, from the standpoint of the composition copyright owner, they would have agreed that the recording was not original, but the copyright law requires a different analysis from the standpoint of the copyright owner of the recording.  And they believed the originality requirement was met when the sounds were fixed in the master recording. As to the second argument, and this is probably the groundbreaking ruling, they simply adopted a literal reading approach to the copyright statutes and determined that the copyright law provides the owner of the recording copyright alone the right to prepare a derivative  work in which the actual sounds of the recording are rearranged, remixed or other wise altered in sequence or quality.  The court noted that, if you cannot pirate the whole sound recording neither can you “lift” or “sample” something less than the whole. As was stated: “Get a license or do not sample”. 

            Although relatively recent (September 7, 2004), the decision has provoked a storm of comments from the music world, especially from agents and attorneys who represent hip-hop musicians. The influential Recording Industry of America has filed an amicus curiae (“friend of the court”) brief requesting that the court reconsider its decision.  Other members of the music industry have different views, noting that since the recording copyright is a rather weak copyright, the decision represents sound reasoning.

            In any event, perhaps the old “Four Beat Rule” I have heard bandied about in agencies and marketing firms is really dead, although I suspect the obstinate attitudes and practices with respect to “tiny takings” will continue. 

            It’s like this, brothers and sisters:

The wild wacky world of Hip-Hop
Sent everyone back to the shop
When its practice of sampling
Took quite a trampling
From a court who demanded it stop