Sunday, December 15, 2019

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2. Get a License or Do Not Sample--Bridgeport Music Inc. v. Dimension Films

Bridgeport Music Inc. v. Dimension Films addressed a sample used by the hip-hop group N.W.A. on their song 100 Miles and Runnin'. N.W.A. sampled a three-note, arpeggiated guitar chord that lasted two seconds, taken from the song Get Off Your Ass and Jam by George Clinton Jr. and the Funkadelics. The guitar riff was lowered in pitch, looped to repeat, extended for sixteen beats, and was used at five different points in the song. Because the N.W.A. track was used in the film I Got the Hook Up, the owners of Get Off Your Ass and Jam brought suit against the film's producers.

The Court of Appeals for the Sixth Circuit sided with Bridgeport Music, holding that the de minimis doctrine can never act as a defense to the sampling of a copyrighted sound recording. As many samples contain only a small portion of the original work, artists have long relied on the de minimis doctrine to sustain this creative process. However, the court found that Section 114(b) of the Copyright Act (which concerns copyrights of sound recordings) grants sound recording owners the exclusive right to sample their own recordings. Because one may not pirate the whole sound recording, the court reasoned, one may likewise not lift or sample something less than the whole. In the court's own words, either [g]et a license or do not sample--anything less would constitute per se infringement.

The various justifications offered by the Sixth Circuit for its ruling have received substantial criticism. First, the court cited the need for a bright-line rule to promote judicial efficiency. In the face of hundreds of sampling cases, the court reasoned that conducting de minimis tests on a case-by-case basis would be impractical. However, it appears that the opposite is true: by stating that sampling even three notes (as in this case) is infringement, the court open[ed] the floodgates to more lawsuits. Further, as de minimis is no longer a viable defense for sampling artists, defendants are more likely to turn to the complex, fact-specific affirmative defense of fair use. Thus, it appears that Bridgeport's elimination of de minimis will increase not only the number of copyright infringement suits, but also the complexity of those suits. Furthermore, a bright-line rule is inappropriate to deal with the widely ranging fact patterns and . . . continually evolving technological landscape that characterize digital sampling cases.

The Bridgeport court gave particular consideration to the economic interests of the music industry, reasoning that its rule would limit the ability of samplers to benefit from another artist's work product. Such a conclusion ignores the significant costs imposed on artists to clear samples, even if using only one note. Clearing samples is not as simple as sending a check to the original source's owner, but rather is time-consuming, expensive, unpredictable, and a legal and administrative hassle. One DJ described the problems with sample clearance: Lawyers make it totally impossible to clear more than one sample per song, because they all want 75%, no matter how big or how small the use is. Furthermore, the court's rule ensured that the cost of obtaining a license would increase even further, as sound recording owners can name the price which artists must pay, no matter how brief the sample. Such a burden upon independent artists of limited resources actually works to encourage illegal sampling rather than compliance.

The court rationalized the cost of obtaining clearance by stating that if an artist wants to incorporate a riff from another work in his or her recording, he is free to duplicate the sound of that riff in the studio. Such an assumption does not square with reality. Studio recording is prohibitively expensive, especially for artists lacking the backing of a major studio. While one may purchase sampling software for $500, a studio demo can easily run over $4,000. Furthermore, attempts at re-recording the original source will invariably fail; as artist Jan Hammer noted, There's no way to recreate what [original artists] sound like--the nuances they bring to music.

In some ways, the court's mistaken assumptions about studio recording versus sampling belie nostalgia for the good old days when music was made in studios, not on laptops. Such cultural preferences are reinforced by the court's description of sampling as physical, not intellectual, taking. In the eyes of the court, any sampling, for any reason, without clearance, is a per se violation of federal statute. In the same vein as Grand Upright, Bridgeport thus functions as a legally binding decree of what sort of art, and what sort of technology, society is willing to accept as valid. Moreover, by threatening any sampling artist with litigation, the case has had a distinct chilling effect on creativity within the sampling community.

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