Digital Rights Network

In a decision of September 7th 2004 the US Sixth Circuit court of appeal ruled that a taking of a sample as short as 2 seconds constituted copyright infringement. Apparently the court's intention in creating this 'bright line' was to reduce uncertainty by making it a simple case of any taking implied infringement. However, it was also ruled that were it the case that the riff had been rerecorded no infringement would have been found - a necessary viewpoint if compatibility were to be maintained with previous decisions implying that such minor taking was not infringement of authorial copyright.

This decision is so extreme, and so threatening to established interests in music and in advertising, that even the RIAA is protesting it. Here is the full text of the decision.

Summary

All quotes taken from the Sixth Circuits full decision

The Facts

According to one of plaintiffs’ experts, Randy Kling, the recording “100 Miles” contains a sample from that guitar solo. Specifically, 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. Kling states that this sample appears in the sound recording “100 Miles” in five places; specifically, at 0:49, 1:52, 2:29, 3:20 and 3:46. By the district court’s estimation, each looped segment lasted approximately 7 seconds. As for the segment copied from “Get Off,”

The Key Points

Case turned on two points:

No Limit Films moved for summary judgment, arguing (1) that the sample was not protected by copyright law because it was not “original”; and (2) that the sample was legally insubstantial and therefore does not amount to actionable copying under copyright law.

Originality and therefore copyright was found due to the nature of playing and the resulting sound effect so attention focused on the second issue: was the taking insubstantial - fair use for music. It is worth noting that the district court (whose decision was being appealed) had found no infringement because of the paucity of the taking:

After listening to the copied segment, the sample, and both songs, the district court found that no reasonable juror, even one familiar with the works of George Clinton, would recognize the source of the sample without having been told of its source. This finding, coupled with findings concerning the quantitatively small amount of copying involved and the lack of qualitative similarity between the works, led the district court to conclude that Westbound could not prevail on its claims for copyright infringement of the sound recording.

The Crux of the Decision

Section 114(b) [of Title 17 of the United States Code] provides that “[t]he exclusive right of the owner of copyright in a sound recording under clause (2) of section 106 is limited to the right to prepare a derivative work in which the actual sounds fixed in the sound recording are rearranged, remixed, or otherwise altered in sequence or quality.” In other words, a sound recording owner has the exclusive right to “sample” his own recording. We find much to recommend this interpretation.

Motivation - Simplicity of Analysis

The court was heavily motivated by a desire to establish a clear standard to stem the tide of litigation that has arisen with the growth of hip-hop and improvements of technology:

The music industry, as well as the courts, are best served if something approximating a bright-line test can be established. Not necessarily a “one size fits all” test, but one that, at least, adds clarity to what constitutes actionable infringement with regard to the digital sampling of copyrighted sound recordings.

This case also illustrates the kind of mental, musicological, and technological gymnastics that would have to be employed if one were to adopt a de minimis or substantial similarity analysis. The district judge did an excellent job of navigating these troubled waters, but not without dint of great effort. When one considers that he has 800 other cases all involving different samples from different songs, the value of a principled bright-line rule becomes apparent. We would want to emphasize, however, that considerations of judicial economy are not what drives this opinion. If any consideration of economy is involved it is that of the music industry. As this case and other companion cases make clear, it would appear to be cheaper to license than to litigate.

Misc

Rerecording is not infringement: ... this means that the world at large is free to imitate or simulate the creative work fixed in the recording so long as an actual copy of the sound recording itself is not made..