After a recent court victory, Madonna is likely to be thanking her lucky stars. On June 2nd, the U.S. Ninth Circuit Court of Appeals ruled 2-1 in favor of the dance-pop diva and producer Shep Pettibone, who had been sued by VMG Salsoul LLC over her alleged use of a .23-second snippet of the Salsoul Orchestra song Love Break in her 1990 hit Vogue. The court ruled that the use (purported to be a single horn stab) was de minimis, meaning such a small use as to be trivial and not a copyright infringement.
The Ninth Circuit ruling is at odds with a 2005 ruling from the Sixth Circuit, Bridgeport Music Inc.. v. Dimension Films. In that case, the court looked at whether N.W.A., in two of their songs, infringed the copyright of a Funkadelic song by sampling a two-second guitar riff. In that case, the Appeals Court, reversing the lower court, ruled that de minimis did not apply in cases of sampling of a sound recording (while leaving the door open to the possibility of fair use claims.)
This split between the two circuits could even ultimately set the issue on the path to the Supreme Court, though it could be a long time before such a hearing takes place. Still, the case once again raises the issue of whether very short samples are not only not copyright infringements, but are too trivial to weigh.
A Brief History of Sampling Lawsuits
Litigation over sampling has been a reality for over 50 years but for much of that history, the controversy has concerned very significant and obvious samples.
Perhaps the most famous of such cases is Campbell v. Acuff-Rose Music, Inc., better known as the “Pretty Woman” lawsuit. In that case, Acruff-Rose Music, rightsholders to the Roy Orbison song Oh, Pretty Woman, sued 2 Live Crew and their label over their song Pretty Woman. 2 Live Crew had heavily sampled the original, including drum, bass and guitar riffs but claimed that the song was a parody.
The case would eventually make it to the Supreme Court in 1994, which ruled that the sampling was a fair use, creating a standard that has gone on to be a key one in many fair use cases to come.
More recent cases, however, have focused on smaller and smaller samples. At the forefront of that push has been TufAmerica, a company that has acquired the rights to a large number of songs used in samples and has aggressively filed lawsuits over them, sometimes without the knowledge or participation of the sampled performers/composers.
For example, in 2012, TufAmerica filed a lawsuit against Jay Z alleging the rapper’s 2009 song Run This Town sampled illegally from Hook and Sling Part One by singer-pianist Eddie Bo due to a sampled “Oh”. That lawsuit was dismissed in 2014 when the judge ruled that one syllable didn’t qualify for copyright protection. Jay-Z is far from alone as TufAmerica has also targeted Beastie Boys, Kanye West and Frank Ocean to name a few. Though TufAmerica has been able to secure some settlements, they haven’t always succeeded in courts. Their 2012 action against the Beastie Boys for samples of the go-go band Trouble Funk, for example, failed when it was discovered that they didn’t actually own the copyright.
These lawsuits are aided by new software that can detect samples that, previously, were next to impossible to identify using the ears along. Additionally, websites like Who Sampled that create libraries of known samples may unwittingly help in the proces. In short, technology has made it possible to spot samples the same way that we spot reused and plagiarized text, down to snippets that would be almost impossible to detect any other way.
But with the increased litigation comes increased scrutiny from the courts, and those courts haven’t always aligned with the Bridgeport decision.
Legal Grey Areas
Generally, the advice given to artists and producers in the wake of Bridgeport has been to clear all of the samples in your music; “get a license or do not sample,” as the court memorably opined. While a clear precedent for a de minimus threshhold for compositions exists because of cases like Newton v. Diamond, for sound recordings, such a threshhold does not exist. That means there isn’t such thing as a sample that’s inherently too short to be considered copyright infringement, at least in the sixth circuit.
In practice, though, unlicensed sampling has not stopped. As Kembrew McLeod and Peter Dicola describe in their book Creative License, one of the responses to the high cost of sample licensing has been a trend toward more shorter and more well-disguised samples.
And even before the Madonna case, the de minimus issue was far from settled. As Terry Hart has pointed out, in finding Timbaland innocent of copyright infringement, a federal district court in Florida held in 2009 that the Bridgeport ruling was wrong to set aside the requirement of substantial similarity.
Now, in the new Ninth Circuit ruling, Judge Susan Graber adds her voice to the legal chorus, arguing explicitly that Bridgeport was an error. As the Hollywood Reporter describes:
And of course, setting de minimus aside, defendants are still free to use fair use as an affirmative defense, and in the right cases, may indeed find success doing so. Of course, few such cases actually make it to trial because of the high cost of litigation.
Incidentally, on May 31st Germany’s highest court ruled on a similar issue, ruling against the electro-pop band Kraftwerk in a copyright infringement case against music producer Moses Pelham. Kraftwerk had sued Pelham for copyright infringement over a 2-second drum sample that he had used in the song Mir by Sabrin Setlur and, though lower courts had sided with Kraftwerk, the German Constitutional Court overturned earlier decisions barring Mir from being sold or promoted.
Right now these decisions may not have a significant immediate impact on the practice of sampling. The split circuit means that there is still legal risk; there’s just a new layer of uncertainty. Further legal action in this area seems likely.
And there are still some unanswered questions about what, in particular constitutes a de minimus threshhold. How short must the sample be? As Eric Goldman writes: “we have no idea how much copying would cause the de minimis defense to fail. A half-note? A full note? No key transposition? Law-professor-slippery-slope alert!”
For now, no bright line exists, leaving both original artists and those that might seek to sample them without much clear guidance on the boundaries of their rights.
Image via Shutterstock.