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Guest post by Stephen Carlisle of Nova Southeastern University
In the middle of 2016, the Ninth Circuit Court of Appeals muddied the waters on the legality of digital sampling of sound recordings through its opinion in VMG Salsoul, LLC v. Ciccone. 1 There, for the first time, an appellate court held that the rule of de minimis non curat lex applied to digital sampling, in direct conflict with the ruling of the Sixth Circuit Court of Appeals on precisely the same point. 2 The Sixth Circuit, in Bridgeport Music, Inc. v. Dimension Films, had adopted a bright-line rule: “Get a license or do not sample.” 3 Notably the ruling of the Sixth Circuit (which covers Nashville) had been on the books for over 10 years, without causing undue disruption for the rather large music industry within the court’s jurisdiction. Now the landscape for the practicing attorney in advising clients in the music business has shifted. The answer to the question of “can I sample this?” will depend in large part on where you live (or where you’re sued) and how likely your court of appeals is going to follow the reasoning on either side.
What Is Sampling?
Sampling can be best understood as making an audio copy of a musical fragment or phrase that is then placed into a new recording where it can be rearranged or manipulated. This practice in effect makes the resulting new recording a derivative work, subject to the author’s permission under 17 U.S.C. § 106(2), which applies not only to the musical work, but also to the sound recording.
The legal issues surrounding “sampling” are as old as rap itself. The very first mainstream rap hit, the Sugarhill Gang’s “Rapper’s Delight,” also spawned the first legal dispute. 4 The three rappers used as the musical bed for their raps the instrumental introduction of Chic’s “Good Times,” composed by Bernard Edwards and Nile Rodgers. After threatening a lawsuit, the “Good Times” composers were granted the 
The fact that trouble started right away is not surprising. In a live performance context, the rapping DJ is free to use recordings as the bed or underpinning for his or her raps (presuming of course that the main performance itself has been properly licensed). But taking this same DJ, placing him or her in a recording studio, and having him or her recreate the performance for fixation in a new recording violates the copyright laws by making copies of the musical compositions and the sound recordings. In a “street” art form such as rap, this distinction is easily misunderstood, and also easily disregarded.
As rap grew in popularity, the sampling lawsuits started piling up. Usually these were brought by music publishing companies, not record labels. One could easily guess that this was due to an “honor among thieves” mentality. Every record label had rappers on it. Suing another record company over a sound recording sample was sure to invite getting one back rather quickly. Universally these sampling cases were settled, because no one was sure on which side of the issue the courts would come down.
This reasoning persisted until the District Court for the Southern District of New York dropped the hammer on rapper Biz Markie. The case, Grand Upright Music Ltd. v. Warner Bros. Records, Inc., 7 laid out in no uncertain terms the proposition that sampling was out and out copyright infringement. Indeed, the very first words of the opinion are “Thou shalt not steal.” But the court did not stop there. The final lines of the opinion are:
This callous disregard for the law and for the rights of others requires not only the preliminary injunction sought by the plaintiff but also sterner measures. . . . This matter is respectfully referred to the United States Attorney for the Southern District of New York for consideration of prosecution of these defendants under 17 U.S.C. § 506(a) and 18 U.S.C. § 2319. 8
Needless to say, Warner Bros. Records was probably chastened by being called a criminal in a published opinion by a federal judge. The case was quickly settled for a “substantial sum.” 9 The album was recalled, and subsequent pressings deleted the song (“Alone Again”). 10 For his part, rapper Biz Markie took the decision with some degree of humor. His next album was titled All Samples Cleared. 11
For the rap community, the choice was either pay up or hope not to get caught. 12 Sometimes the latter approach worked. Yet, oddly enough if an artist does not pay up and then gets his or her most fervent wish, namely that the record is ultimately successful, someone is bound to notice the similarities.
Case in point, Vanilla Ice’s “Ice Ice Baby.” This rap song contained a highly recognizable sample of Queen and David Bowie’s “Under Pressure.” 13 For unknown reasons (the most likely reason being a lack of finances), Queen and David Bowie’s sample went uncredited, and the song instead just credits Vanilla Ice, Earthquake, and Mr. Smooth. 14 So when “Ice Ice Baby” hit the jackpot and went to #1 on the Billboard charts (the first song by a rapper to do so), 15there was no place to hide. Well, they tried to hide. In an interview, Mr. Ice first tried to contend that adding an extra bass note changed the riff into something totally different. 16 He later contended he was joking. 17 The case was settled out of court; the members of Queen and David Bowie were given their writing credit and, according to Mr. Ice, $4 million. 18
In my own music law practice, I got tipped off that a famous rapper had sampled one of my client’s songs. It was a brief sample: two bars of music, lasting perhaps four seconds. Yet it formed the chorus of the new song, being repeated over 40 times. Further, to my utter surprise, the rapper’s song had three other samples on it, some of which they had cleared. There was literally no defense they could present. They knew they had to clear the samples, they just did not, and probably hoped my client would not notice. Again the reason for this was probably economic. They had to give writing credit on the samples they did clear and probably wanted to keep some of the copyright for themselves. Unfortunately (for them) their gamble did not pay off and they had to give my client 50 percent of the copyright in order to settle the case.
Ninth Circuit Turns the Tables
On the larger stage, the Grand Upright case continued to be the gold standard. Its sweeping language and curt dismissal of the ethos of “we’re rappers, sampling is part of the culture” made for a rather large club in one’s litigation arsenal.
But the Ninth Circuit undercut this legal certainty with its opinion in the case of Newton v. Diamond. 19 The court held that the principle of de minimis non curat lex applied to issues of sampling. At issue was a three-note ostinato (a constantly repeated sequence of notes) sampled by the Beastie Boys and placed into their song “Pass the Mic.” The sample lasted for approximately six seconds, and consisted of the notes C–D-flat–C, over a held C note. 20 Curiously enough, the Beastie Boys cleared the sample for the sound recording, but not the musical composition. 21
The district court held that the sampled material was insufficiently original to warrant copyright protection, and even if it did qualify for copyright, the copying was too insignificant to be actionable. 22 The Ninth Circuit concluded that (1) the amount of the sample was too small as compared to the entirety of the song (“two percent of the four-and-a-half-minute . . . sound recording”) to be actionable, and (2) “an average audience would not discern Newton’s hand as a composer, apart from his talent as a performer, from Beastie Boys’ use of the sample.” 23
One might question the logic of the opinion by focusing on the use made by the Beastie Boys. Though the sample was indeed small, it proved to be qualitatively important to the song “Pass the Mic” as a whole. The sample plays continuously throughout “Pass the Mic” so that it “appears over forty times,” 24 i.e., the Beastie Boys found the sample important enough to include it repeatedly in their song. It seems contradictory for a court to then conclude that the sample is so trivial and unimportant to not merit legal protection.
Up to the point of the Ninth Circuit’s decision in Newton, sampling cases had featured claims brought by music publishers over the use of the songs, not the owners of the sound recordings. This changed with the decision of the Sixth Circuit in Bridgeport. To my knowledge this is the first time a court of appeals ruled on the sampling of a sound recording. The court realized that it was making a bright-line rule of “no sampling,” and primarily reasoned that the ease of courts in enforcing the rule had readily foreseeable benefits. 25 Further the court makes this trenchant point:
[S]ampling is never accidental. It is not like the case of a composer who has a melody in his head, perhaps not even realizing that the reason he hears this melody is that it is the work of another which he had heard before. When you sample a sound recording you know you are taking another’s work product. 26
And further:
[E]ven when a small part of a sound recording is sampled, the part taken is something of value. No further proof of that is necessary than the fact that the producer of the record or the artist on the record intentionally sampled because it would (1) save costs, or (2) add something to the new recording, or (3) both. For the sound recording copyright holder, it is not the “song” but the sounds that are fixed in the medium of his choice. When those sounds are sampled they are taken directly from that fixed medium. It is a physical taking rather than an intellectual one. 27
Some courts located outside the Sixth Circuit that have taken up the issue in the wake of Bridgeport have declined to follow its expansive ruling. A Florida district court declined to follow the ruling, citing an Eleventh Circuit opinion that it felt mandated a consideration of substantial similarity even when copying was undoubtedly proven. 28
Similarly as recounted at the outset, the Ninth Circuit has declined to follow the lead of the Sixth Circuit as well. In the Ciccone case, the fact of whether there was a sample at all was contested. Yet to the court this was of no import.
After listening to the audio recordings submitted by the parties, we conclude that a reasonable juror could not conclude that an average audience would recognize the appropriation of the horn hit. That common-sense conclusion is borne out by dry analysis. The horn hit is very short—less than a second. The horn hit occurs only a few times in Vogue. Without careful attention, the horn hits are easy to miss. Moreover, the horn hits in Vogue do not sound identical to the horn hits from Love Break. As noted above, assuming that the sampling occurred, Pettibone truncated the horn hit, transposed it to a different key, and added other sounds and effects to the horn hit itself. The horn hit then was added to Vogue along with many other instrument tracks. Even if one grants the dubious proposition that a listener recognized some similarities between the horn hits in the two songs, it is hard to imagine that he or she would conclude that sampling had occurred. 29
The point the court never takes up is that, as the Sixth Circuit observed, sampling is never “accidental”—it is always “intentional.” The fact that a music producer can digitally alter the sample so that it now sounds worlds different does not change the fact that the sound started out as exactly the same sound fixed in another’s sound recording.
And sampling is largely unnecessary. The electronic synthesizer is over 40 years old. There are literally thousands of sounds stored in sound banks, waiting to be used. There is no real need to sample someone else’s sounds when they can be precisely, and legally, imitated through the use of modern digital synthesizer technology. Especially in the case of Ciccone, where the sound is something as mundane as a brass horn “hit.”
Conclusion
So now we have two rules. And if you practice law outside the Ninth or Sixth Circuit, which rule applies is anyone’s guess, a point not lost on the dissenting opinion in Ciccone:
Equally compelling is, I think, Congress’s silence in the wake of Bridgeport, especially in light of the fact that the Sixth Circuit explicitly invited Congress to clarify or change the law if Bridgeport’s bright-line rule was not what Congress intended. While it’s true that congressional inaction in the face of judicial interpretation is not ironclad evidence of Congressional approval, it’s not chopped liver either. In this case Bridgeport has not been hiding out in the woods, waiting to be found: it has been governing the music industry in Nashville and elsewhere for eleven years. The majority now proposes to introduce a different rule for this circuit, creating a circuit split, and providing a lower level of protection for copyright holders in a different area of the country. This inconsistent approach is plainly in contravention of Congressional intent that copyright laws be predictable and uniform, yet the majority defends its rogue path on the ground that Congress must have intended something other than what the Sixth Circuit has concluded, even though we’ve heard not a peep from Congress, or for that matter the Supreme Court, in the eleven years since Bridgeport has been on the books. 31
Published in Landslide Magazine, Volume 9, Number 5, © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
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