Music publishing, sound recordings
In the appellate court ruling for the 6th Circuit in Bridgeport Music v. Dimension Films Judge Ralph Guy provided the much quoted principle “Get a license or do not sample. We do not see this as stifling creativity in any significant way.” When ruling that the use of a “a two-second sample from the guitar solo was copied” where “the pitch was lowered, and the copied piece was “looped” and extended to 16 beats” was not de minimis and was infringing as it was used without permission, Judge Guy said “Even when a small part of a sound recording is sampled, the part taken is something of value.” Pretty clear eh?
That case was settled so no final appeal to the Supreme Court took place, but that may now change says TechDirt. TufAmerica has sued Jay Z, Roc-A-Fella and Atlantic Records for the use of a “tiny sample” of the song “Hook & Sling” by Eddie Bo on Jay Z’s “Run This Town” with TechDirt saying “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.
TechDirt adds “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 (although notes that here fair use is not being argued)
TufAmerica Inc. V WM Music, Warnr Tamerlane Publishing Inc, ROC Nation LLC, et al (2014) 13-CV-07874 (LAK) https://www.techdirt.com/articles/20140911/09383528493/jay-z-steps-up-to-plate-to-argue-that-tiny-music-samples-are-unprotected-copyright.shtml
TufAmerica Inc. V Michael Diamond et al (2013) No. 12 Civ. 3529 (AJN)
The Song Remains the Same (MLU Article on music sampling, Dec 2003, updated) http://www.musiclawupdates.com/?p=199