CINCINNATI -- If the pirating of an entire sound recording is prohibited by copyright law, then the process of sampling anything less than the whole also must be, the Sixth Circuit U.S. Court of Appeals concluded Sept. 7 (Bridgeport Music Inc.; Westbound Records Inc. v. Dimension Films, Miramax Film Corp., No. 02-6521, 6th Cir.).
"Even 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," the Sixth Circuit held.
The ruling stems from one of the 500 counts of copyright infringement Bridgeport Music Inc. brought against approximately 800 defendants regarding their use of samples without permission in new rap recordings. In August 2001, the U.S. District Court for the Middle District of Tennessee severed the original complaint into 476 separate actions, including the one at issue in this ruling, which pit Bridgeport against Dimension Films and Miramax Film Corp. According to the plaintiff, the defendants used a sample of George Clinton Jr.'s "Get Off Your Ass and Jam" in the rap song "100 Miles and Runnin,'" which was included in the soundtrack for the movie "I Got the Hook Up."
Judge Thomas A. Higgins granted summary judgment to the defendants on the grounds that the alleged infringement was de minimis and therefore not actionable. On appeal, Bridgeport challenged a different issue: whether the denial of its motion to amend its complaint to assert new claims of infringement based on a different song included in the same soundtrack was erroneous. Reversing the grant of summary judgment but affirming on all other issues, the Sixth Circuit cited the judge's acknowledgment of the paucity of case law on the issue of whether digital sampling amounts to copyright infringement.
According to the Sixth Circuit, different requirements exist for analyzing an infringement of a musical composition as compared to analyzing an infringement of a sound recording. By tracking an analysis for musical composition, Judge Higgins erred, the appellate panel held. In reaching the conclusion, the Sixth Circuit examined the history of the Copyright Act, noting that Congress made a decision to treat sound recordings differently than books even though both are the medium in which an original work is fixed rather than the creation itself. Requiring artists to pay for each musical sample included in their work does not stifle creativity because such a rule is easily enforced.
"Get a license or do not sample," the Sixth Circuit held.
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