Two Separate Copyright Rulings Around The Globe May Finally Clear The Copyright Way For Sampling

from the good-to-see dept

This week, in two different countries, we got two very good rulings concerning copyright on "sampling" of music into other songs. As you may know, the law on sampling, especially in the US, has been a bit of a mess. There was a great documentary on this a few years ago called Copyright Criminals that I highly recommend watching if you can find it. Here's the trailer:
A big part of the problem was a horrible ruling in the 6th Circuit in one of the (many) Bridgeport cases (a company that is alleged to have forged records to get control over heavily sampled works, and then sued lots of artists over their samples). In Bridgeport v. Dimension Films, a confused 6th Circuit appeals court made a bunch of nutty comments in a ruling, including "Get a license or do not sample. We do not see this as stifling creativity in any significant way." That case, which didn't even look at the fair use issue, effectively wiped out another legal defense against accusations of copyright infringement, known as "de minimis use." The court's bizarre ruling contradicted plenty of others in basically saying there's no such thing as de minimis use because each sampled note has value or it wouldn't have been sampled. This tautological reasoning is directly in that awful ruling:
Why is there no de minimis taking...? ... [E]ven 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.
And while this ruling has been troubling copyright and music sampling folks for ages, no one seemed willing to challenge it. But, a few years back, we wrote about VMG Salsoul suing Madonna over her hit song "Vogue," claiming it used a sample from the VMG Salsoul song "Chicago Bus Stop." You can listen to both tracks and I assure you that you will not see any similarities, because they're totally different. In fact, VMG claimed that part of the reason it took 20 years to sue over this was because Madonna "hid" the sample -- which (to us, at least) raised serious questions about how it could be copyright infringement at all. In our article, we noted the mess in the 6th Circuit and the fear of others testing that ruling, but the Madonna case went forward (in the 9th Circuit, rather than the 6th) and Madonna won, and has now won again on appeal, with the court flat out rejecting the Bridgeport ruling in the 6th Circuit, and saying that de minimis use exists in sampling:
We reject that interpretation of § 114(b). Bridgeport ignored the statutory structure and § 114(b)’s express limitation on the rights of a copyright holder. Bridgeport also declined to consider legislative history on the ground that “digital sampling wasn’t being done in 1971.” ... But the state of technology is irrelevant to interpreting Congress’ intent as to statutory structure. Moreover, as Nimmer points out, Bridgeport’s reasoning fails on its own terms because contemporary technology plainly allowed the copying of small portions of a protected sound recording....

Close examination of Bridgeport’s interpretive method further exposes its illogic. In effect, Bridgeport inferred from the fact that “exclusive rights . . . do not extend to the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds,” ... the conclusion that exclusive rights do extend to the making of another sound recording that does not consist entirely of an independent fixation of other sounds. As pointed out by Nimmer, Bridgeport’s interpretive method “rests on a logical fallacy.” ... A statement that rights do not extend to a particular circumstance does not automatically mean that the rights extend to all other circumstances. In logical terms, it is a fallacy to infer the inverse of a conditional from the conditional.
The ruling also rejects that weird "physical taking" line quoted above as a reason to ignore de minimis use as a defense against infringement:
We disagree for three reasons. First, the possibility of a “physical taking” exists with respect to other kinds of artistic works as well, such as photographs, as to which the usual de minimis rule applies.... A computer program can, for instance, “sample” a piece of one photograph and insert it into another photograph or work of art. We are aware of no copyright case carving out an exception to the de minimis requirement in that context, and we can think of no principled reason to differentiate one kind of “physical taking” from another. Second, even accepting the premise that sound recordings differ qualitatively from other copyrighted works and therefore could warrant a different infringement rule, that theoretical difference does not mean that Congress actually adopted a different rule. Third, the distinction between a “physical taking” and an “intellectual one,” premised in part on “sav[ing] costs” by not having to hire musicians, does not advance the Sixth Circuit’s view. The Supreme Court has held unequivocally that the Copyright Act protects only the expressive aspects of a copyrighted work, and not the “fruit of the [author’s] labor.” ... Indeed, the Supreme Court in Feist explained at length why, though that result may seem unfair, protecting only the expressive aspects of a copyrighted work is actually a key part of the design of the copyright laws.... Accordingly, all that remains of Bridgeport’s argument is that the second artist has taken some expressive content from the original artist. But that is always true, regardless of the nature of the work, and the de minimis test nevertheless applies.
And thus, the 9th Circuit directly admits that it's creating a circuit split, which makes it much more likely that the Supreme Court may take up the issue:
Because we conclude that Congress intended to maintain the “de minimis” exception for copyrights to sound recordings, we take the unusual step of creating a circuit split by disagreeing with the Sixth Circuit’s contrary holding in Bridgeport. We do so only after careful reflection because, as we noted in Seven Arts Filmed Entertainment Ltd. v. Content Media Corp.,.. “the creation of a circuit split would be particularly troublesome in the realm of copyright. Creating inconsistent rules among the circuits would lead to different levels of protection in different areas of the country, even if the same alleged infringement is occurring nationwide.” ... We acknowledge that our decision has consequences. But the goal of avoiding a circuit split cannot override our independent duty to determine congressional intent. Otherwise, we would have no choice but to blindly follow the rule announced by whichever circuit court decided an issue first, even if we were convinced, as we are here, that our sister circuit erred.
It also notes, as we did, that no one would ever be able to tell that the Madonna song sampled Bus Stop:
After listening to the recordings, we conclude that a reasonable jury could not conclude that an average audience would recognize the appropriation of the composition.
Furthermore, the fact that the sample was modified helps Madonna's case:
The horn hit itself was not copied precisely. According to Plaintiff’s expert, the chord “was modified by transposing it upward, cleaning up the attack slightly in order to make it punchier [by truncating the horn hit] and overlaying it with other sounds and effects. One such effect mimicked the reverse cymbal crash. . . . The reverb/delay ‘tail’ . . . was prolonged and heightened.” Moreover, as with the composition, the horn hits are not isolated sounds. Many other instruments are playing at the same time in both Love Break and Vogue.
The ruling even notes that VMG Salsoul's own expert "misidentified" the source of the sampled note, showing that even their own expert couldn't correctly understand what was sampled here (oops). And in the end, the court supports de minimis use:
We hold that the “de minimis” exception applies to actions alleging infringement of a copyright to sound recordings.
Separately, the court did overturn the district court awarding attorneys' fees in the case, saying that the lawsuit was not "objectively unreasonable" in light of Bridgeport, even if that case was disputed by many.

There is also a really confused dissent by Barry Silverman that goes along the "copyright is a property right and any infringement on that right is bad" line of thinking:
The plaintiff is the owner of a copyright in a fixed sound recording. This is a valuable property right, the stock-intrade of artists who make their living recording music and selling records.... It is no defense to theft that the thief made off with only a “de minimis” part of the victim’s property.
And then there's this:
True, Get a license or do not sample doesn’t carry the same divine force as Thou Shalt Not Steal, but it’s the same basic idea. I would hold that the de minimis exception does not apply to the sampling, copying, stealing, pirating, misappropriation – call it what you will – of copyrighted fixed sound recordings. Once the sound is fixed, it is tangible property belonging to the copyright holder, and no one else has the right to take even a little of it without permission.
It's kind of horrifying when an appeals court judge doesn't know the difference between theft and infringement. Thankfully, he's in the minority.

Either way, this circuit split increases the chances of the Supreme Court weighing in. That could be good in finally getting the 6th Circuit precedent destroyed. Or... it could be bad in that this particular Supreme Court seems to almost always get copyright cases wrong, meaning it could affirm the 6th Circuit interpretation and dump the 9th's, once again doing serious harm to sampling as an art form.

Meanwhile, however, over in Germany, they've taken a much more enlightened view on all of this in a similar case involving Kraftwerk whining about a hip hop song sampling some of its music. The German Bundesverfassungsgericht (German federal constitutional court) has given a big okay to samples by noting that their artistic merit outweighs the copyright issue:
If the artist’s freedom of creative expression is measured against an interference with the right of phonogram producers that only slightly limits the possibilities of exploitation, the exploitation interests of the phonogram producer may have to cede in favour of artistic dialogue.
The ruling basically tries to balance the right to "artistic freedom" with copyright law, and basically argues that in cases where those doing sampling aren't doing any real harm to the original copyright holder, the artistic freedom should win out. The court rejects the idea that using a short sample interferes with the copyrights of the original:
The presumption by the Federal Court of Justice that even the inclusion of very brief sound sequences constitutes an interference with the plaintiffs’ right to protection as phonogram producers if the used sequence can be reproduced so as to sound like the original, does not take sufficient account of the right to artistic freedom. Where a musical artist who intends to use samples to create a new work does not want to refrain from including a sample in his new piece of music, the strict interpretation of free use by the Federal Court of Justice puts him in the position of having to decide whether to obtain a sample license from the phonogram producer or to reproduce the sample himself. In both cases, however, the freedom of artistic activity and hence also the further cultural development would be restricted.
Just because you can license some samples doesn't fix the situation:
Emphasising the possibility to obtain a license does not provide an equivalent degree of protection of the freedom of artistic activity: A right to be granted a license to use the sample does not exist; due to his right of disposal, the phonogram producer may deny a licensing without having to give reasons and irrespective of the readiness to pay for the use of the sample. The phonogram producer is entitled to demand the payment of a license fee for the use of the sample, the amount of which he is free to determine. The process of granting rights is extremely difficult in case of works which assemble many different samples in a collage-like manner. These problems are only solved insufficiently by existing sample databases and service agencies that assist musical artists in the process of sample clearing.
In other words, the German approach here is a big, big deal, recognizing that sampling is a form of artistic expression, and requiring licenses for it stifles creativity and musical expression. This is a much bigger deal than the US situation, where we're still arguing over de minimis use (and not even fair use!). Meanwhile, over in Germany they're directly looking to enable more artistic freedom.

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  • identicon
    I.T. Guy, 3 Jun 2016 @ 8:52am

    Ya know it's articles like this that define why nobody respects copyrights.

    And it took a German Judge to sum it up brilliantly:

    "If the artist’s freedom of creative expression is measured against an interference with the right of phonogram producers that only slightly limits the possibilities of exploitation, the exploitation interests of the phonogram producer may have to cede in favour of artistic dialogue."
    Bravo sir, bravo.
    -
    Maybe it's me having a bad day but I want to go torrent a bunch of crap that I will never listen to or watch... just because damn it.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Jun 2016 @ 9:09am

    Unfortunately, ruling of law in other countries have absolutely NO jurisdiction or impact on laws or cases in the United States. In other words, copyright ruling that happen in other countries would not affect copyright or "fair use" in the United States.

    Mike Masnick should have known this.

    If another country says that fair use doesn't violate copyright law, morons in the United States can't take that ruling into court as a defense because it has no legal effect in the United States.

    reply to this | link to this | view in chronology ]

    • icon
      techflaws (profile), 3 Jun 2016 @ 10:17am

      Re:

      And where did Mike say that it would have some legal effect in the US?

      reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 3 Jun 2016 @ 12:42pm

      Re:

      Unfortunately, ruling of law in other countries have absolutely NO jurisdiction or impact on laws or cases in the United States. In other words, copyright ruling that happen in other countries would not affect copyright or "fair use" in the United States.

      Can you point to where I claimed it did? Because I never said that, nor even implied that.

      If another country says that fair use doesn't violate copyright law, morons in the United States can't take that ruling into court as a defense because it has no legal effect in the United States./i>

      That's true. And I never said otherwise.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 3 Jun 2016 @ 2:25pm

      Re:

      Umm... dude, not everyone on Techdirt is a citizen of the United States. I may be and you may be, but some of us aren't... and your US centric viewpoint is quite asinine.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 3 Jun 2016 @ 7:00pm

      Re:

      Hasn't stopped you from trying to enforce US IP law everywhere else, though.

      reply to this | link to this | view in chronology ]

  • icon
    TasMot (profile), 3 Jun 2016 @ 9:18am

    Joining sampling with the "new copyright for remastering" idea, all the samplers are going to have to do is alter the sample a little bit through artistic choices. If the remastering qualifies the work as "new" and different and therefore a new 95 year copyright, then the same type of alterations in a sample will qualify them as new and not theft of IP (I know its actually infringement). If that remastering theory holds up, then the whole world of sampling is back on the table as OK.

    reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 3 Jun 2016 @ 9:28am

    Not related:

    The German Bundesverfassungsgericht

    WHY GERMANY, WHY????

    I challenge people not familiar to German and its roots to say that without getting tongue cramps.

    Meanwhile I'll get some pain killers to my tongue.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 3 Jun 2016 @ 11:03am

      Re:

      You just need the proper motivation. Bundesverfassungsgerict is the safe-word I use with my gummikrankenschwester.

      reply to this | link to this | view in chronology ]

      • icon
        Ehud Gavron (profile), 3 Jun 2016 @ 1:01pm

        Re: Re:

        I just use "oh my god no" as my safeword and avoid all the rindfleischetikettierungsüberwachungsaufgabenübertragungsgesetz.

        E
        P.S. If you're wondering how to say it with a gag on, you're begging the wrong question.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Jun 2016 @ 9:32am

    de minimus

    So eating someone's french fry is same according to the same judge as stealing their car. Someone throw Bill Murray in prison!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Jun 2016 @ 10:09am

    Supreme Court intervention

    Yes, the Supreme Court may weigh in with a pro-maximalist viewpoint. Although Bridgeport is not yet precedentially binding on other circuits, it likely created a notable chilling effect on sampling in all U.S. jurisdictions. When copyright infringement allegations are involved, potential defendants are wise to be very cautious. If the court believed Bridgeport cast enough of a shadow that the suit vs. Madonna was reasonable, then how many copyright lawyers advising prospective samplers took the same view and instructed their clients not to sample because, as strange as Bridgeport was, it was precedent in one circuit and loomed over any use in other circuits? A Supreme Court ruling for maximalism would be bad, but the current environment likely intimidates samplers into behaving much like that ruling would enforce anyway.

    reply to this | link to this | view in chronology ]

  • icon
    techflaws (profile), 3 Jun 2016 @ 10:19am

    involving Kraftwerk whining about a hip hop song sampling some of its music.

    Can't find the link ATM, but one of the guys of Kraftwerk said something like "hey, he should have called and asked"... like that wouldn't be part of an permission culture.

    reply to this | link to this | view in chronology ]

  • icon
    Anonymous Monkey (profile), 3 Jun 2016 @ 10:22am

    Your logical Fallacy is :

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 3 Jun 2016 @ 12:00pm

      Re: Your logical Fallacy is :

      Organic chemistry has many of examples of this. Often chemical reactions have many side reactions in addition to the intended reaction. So the presence of a side product isn't caused by the presence of the intended product but it's caused by a common cause, the presence of the reactants under the given conditions. Both products have a common cause.

      reply to this | link to this | view in chronology ]

  • icon
    Ehud Gavron (profile), 3 Jun 2016 @ 10:44am

    The fallacy that is "IP".

    When one begins to think of Copyrights as "intellectual property" then one can certainly think that the "taking" of the "thing" is theft.

    Copyright infringement, an entirely different beast than either larceny or conversion, is what one can consider while thinking of Copyright as a right (I know, literal, right?)

    There is a growing menace funded by the vultures that fund companies to "create" more such `imaginary property', to register it, and thus, because these vultures value companies higher when they do that... and they sell to others of their ilk... they create a self-sustaining economy rewarding those who create this imaginary property.

    The US Patent Office does its job to collect dollars and awards these patents to any dog with a bone of a different bite mark. The same is true of how the courts address the mythical "copyright owner" and immediately conflate it with "artist starving on the street, his music stolen by others." The truth of copyright assignment being ANOTHER such pseudo-economy that benefits only the rich is lost on them.

    Trademark abuse... not so much, but then yesterday Techdirt covered a ManU coach whose name is trademarked by someone else. You'd think if not used in commerce in the same industry to deceive customers it wouldn't matter, but the trademark maximalists have struck there too.

    The only remaining part of IP that has yet to be commercialized is trade-secrets, and that is definitionally unable to be commercialized... (because, you know, it's a secret) but I can't wait for the day that some clever POS lawyer figures out a way to not-disclose-but-disclose and commercialize and there will be a rush to 'register' (or otherwise get VC 'credit') for trade secrets.

    Sadly Congress is owned by the people with the money, who are the ones pushing these pseudo-economies where they create imaginary property and reward themselves for it. The concepts that Copyrights were meant to ensure have long fallen to the darkside of "rewarding the artist" (er... backer who bought the rights.)

    Do you ever wonder if the frogs inside the pot KNOW the water temperature is getting warm? Because we do. And we're kinda talking amongst ourselves, but we don't have the power of the men with the b̶u̶r̶n̶e̶r̶ ̶k̶n̶o̶b̶ lobbying power of Copyright maximalists.

    Is it warm here?

    Ehud
    Tucson AZ (Yes, It's warm!)

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 3 Jun 2016 @ 11:14am

      Re: The fallacy that is "IP".

      they create a self-sustaining economy rewarding those who create this imaginary proper

      One small correction, they reward those who gain control over intellectual property. Those who actually create it are usually given paltry payments by the companies.

      reply to this | link to this | view in chronology ]

    • identicon
      Wendy Cockcroft, 4 Jun 2016 @ 3:36am

      Re: The fallacy that is "IP".

      When one begins to think of Copyrights as "intellectual property" then one can certainly think that the "taking" of the "thing" is theft.

      It's everywhere. Our own government is promoting this lie in some places, as I pointed out on another thread. While copyright does have some property elements, the minute you let people get away with describing the whole thing as property, you enable the "Git off mah lay-and!" mentality to fester and spread. The only way to get off the back foot is to charge forward demanding that people re-read the Constitution and remember what copyright is supposed to be.

      I really do think that if they can't play nicely with their toys we should take them away. Can anyone see any value in continuing with any kind of copyright regime?

      reply to this | link to this | view in chronology ]

    • identicon
      BobJ, 5 Jun 2016 @ 4:31am

      Re: The fallacy that is "IP".

      Brilliantly said

      reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 3 Jun 2016 @ 2:21pm

    Fair Use? What's that?

    Seems to me the argument against de minimis sampling is basically an argument against the idea of fair use. 'Get a license or don't sample' might as well be 'The only fair use is paid use', effectively wiping fair use from the law and replacing it with the idea that it doesn't matter how little you use, unless you're paying for it it's still infringing.

    Good that at least one court got it right, though I too have to seriously worry if the SC takes this one up given the serious problems it could cause if they decide that the first case got it right and the second got it wrong.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Jun 2016 @ 4:56pm

    stupid fucking copyright laws
    So my having absolutely no musical ability , if I
    were to record myself on an electronic keyboard to my ears liking and put it up for all to hear on youtube
    I could be dragged off to court for infringing on some
    god for saken idiots claim of ownership to something I
    made up in my head ????
    Fucking morons all of em

    reply to this | link to this | view in chronology ]

  • identicon
    David, 4 Jun 2016 @ 1:19am

    Sampling and Germans

    To quote from the Wikipedia entry of Brahms:
    The main theme of the finale of [Brahm's] First Symphony is also reminiscent of the main theme of the finale of Beethoven's Ninth, and when this resemblance was pointed out to Brahms he replied that any dunce could see that.

    Now without wanting to draw into doubt Brahm's musical expertise (after all, his opinion is shared by others), I much prefer Brahms to Beethoven.

    Sampling is not quite the same as reimaging, of course. But it still is building culture based on culture. The whole point of culture is that art is not spontaneous but evolved and refined.

    I think Stravinsky has been attributed with the quote "Lesser artists borrow, great artists steal."

    reply to this | link to this | view in chronology ]

    • icon
      Karl (profile), 4 Jun 2016 @ 9:33am

      Re: Sampling and Germans

      I think Stravinsky has been attributed with the quote "Lesser artists borrow, great artists steal."

      This (modern) version of the quote is actually from T.S. Elliot: "Immature poets imitate; mature poets steal[.]"

      Interestingly enough, this evolved from a quote by W. H. Davenport Adams: "great poets imitate and improve, whereas small ones steal and spoil." (He was favorably referring to Tennyson's use of other poets' material.)

      http://quoteinvestigator.com/2013/03/06/artists-steal/

      reply to this | link to this | view in chronology ]


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