from the good-for-him dept
For years we’ve written about the ridiculous state of copyright law around music samples. As you may or may not know, some of hip hop’s early success stories were based on tremendous use of sampling, which most people assumed to be perfectly reasonable. And then… greedy lawyers showed up. A lawsuit over De La Soul’s classic 3 Feet High and Rising started things off and then it got worse and worse. In 2005, an absolutely ridiculous appeals court ruling in the 6th Circuit, Bridgeport Music v. Dimension Films cemented the idiotic nature of copyright law as it relates to samples. Judge Ralph Guy wrote the terrible decision that includes this line that simply ignores basic copyright law: “Get a license or do not sample. We do not see this as stifling creativity in any significant way.”
In that case, the use was absolutely minimal. As Guy himself describes: “a two-second sample from the guitar solo was copied, the pitch was lowered, and the copied piece was ?looped? and extended to 16 beats.” In other worse, the sample was unrecognizable. No matter. “Get a license or do not sample.” The defendant argued that this was de minimis, and thus not protected by copyright. Judge Guy doesn’t appear to care. “Even when a small part of a sound recording is sampled, the part taken is something of value.” He even claims that such sampling “is a physical taking rather than an intellectual one.”
That case was settled soon after (so no appeal to the Supreme Court) and very few have actually been willing to challenge that ruling or to try the argument again in another court, in hopes of a circuit split. However, that may be changing. Last year, TufAmerica sued Jay Z, Roc-A-Fella and Atlantic Records for a tiny sample of the song “Hook & Sling” by Eddie Bo on Jay Z’s “Run This Town.” TufAmerica has been reprising the role of Bridgeport lately, suing lots of artists over samples, including the Beastie Boys (the day before Adam Yauch passed away). Meanwhile, Jay Z, in the past, has been sued by others for samples as well — including Bridgetport Music, the same company that won that terrible 6th Circuit decision. However, those cases have never gotten very far.
Here, however, it appears that Jay Z is going to take a stand and argue that such a sample is de minimis and thus not copyright infringement. He’s also arguing that the sample is so small and so short that it’s not even protectable subject matter.
First, it is black letter law that words and short phrases are simply not protectable under the Copyright Act. Thus, Plaintiff cannot state a claim based on the alleged infringement of a generic lyric such as, “oh,” or the sound recording thereof, and Plaintiffs claims should be dismissed as a matter of law. Second, even if the word “oh” or the miniscule portion of Plaintiffs Recording featuring the single word was somehow original enough to warrant copyright protection, the alleged copying here of a sound lasting a fraction of a second in Plaintiffs Works is de minimis and thus not actionable.
This isn’t a brand new argument. In fact, as Jay Z points out in his filing, TufAmerica actually lost on a nearly identical point a similar case last year (the one against the Beastie Boys), where a sample was judged to be so minimal that it “lacks the requisite originality to be afforded copyright protection” (other parts of that case still live on, though). Either way, it will be interesting to see if this case proceeds and if the court agrees with either the sample being so tiny as to not even be eligible for copyright infringement or, if it is copyrightable, to be okay under de minimis use.
Unfortunately, Jay Z doesn’t even bring up the possibility of fair use in the argument, which perhaps makes sense, but you’d think that it would be nice to leave that possibility open should the other two arguments fail. Either way, it looks like this has the chance to become yet another important case involving music samples, and hopefully can get us past that awful Bridgeport decision from the 6th Circuit, relegating it to the dustbin of history reserved for truly awful judicial decisions.