Nore's Legal Series - Sampling

I haven't been blogging. However that doesn't mean I haven't been writing or doing things. In fact I've been writing about various legal cases having to do with various legal ideas and issues pertaining to copyright. It's hella fun and I thought some of you might enjoy it. I've only written about three topics, but they're fairly lengthy, so that makes up for the sparsity. If you get confused by a term or want more details, there's Wikipedia and dictionary.com. Enjoy!*
The practice of sampling within the rap and hip-hop music communities has been around since the late 1980s and since that point the issue of copyright and sampling has been something that has largely been avoided by the courts, at least when compared to the output of music created through the use of sampling. Since the advent of sampling those few cases that are either pursued by the original artist or manage to make it to court have been dealt with in a variety of ways by judges. Up until 2005 with the Bridgeport Music v. Dimension Films case judges could take one of the two different methods or combine those methods to reach a ruling. The first method would be to use the substantial similarity test where the song that was created with the use of sampling would be compared to the original song from which the samples were taken. In comparing the two songs the judge would use the criteria of whether or not the songs were similar in message, tone, and audience to find whether or not the songs are substantially similar. The other method in trying cases of infringement through sampling would be to use a de minimis analysis. This would involve the judge looking at the particular sample and determining whether the sampled used constituted a qualitative and quantitative part of the original song. If the sample did not, and would not be recognizable to an ordinary listener, then the case would be dismissed. Normally judges would use a combination of the two methods, as can be seen in the case Newton v. Diamond where the judge used a combination of the substantial similarity test and the de minimis analysis to determine that no infringement had occurred. However Bridgeport Music v. Dimension Films created a new bright-line rule which aimed to simplify the issue of whether or not sampling constituted copyright infringement.
In Bridgeport Music v. Dimension Films the judge ruled that in cases where the artists admit the sampling has occurred that “no substantial similarity or de minimis [inquiries] should be undertaken.” This rule would only apply to digital sampling, which makes up the majority of sampling done within the rap and hip-hop communities. The judge also stated that simply an artist should “get a license or do not sample.” In this case the judge was implying that any kind of sampling, no matter how small or even potentially unrecognizable, goes against copyright law and should be considered infringement (“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…”). Again, this rule would only apply to digital sampling.
In light of this case, as well as Newton v. Diamond which was decided in the same year as Bridgeport Music v. Dimension Films, a number of scholarly articles have been published discussing the merits of this bright-line rule and the way copyright law in general deals with digital sampling. While all scholars agree that the law needs to better incorporate the idea of digital sampling, the exact method of dealing with sampling is not as widely agreed upon. Some scholars support the Bridgeport Music v. Dimension Films others, including Nimmer, believe that the judges were wrong in many of their conclusions namely the dismissal of the use of de minimis analysis and substantial similarity. In another article written by John Schietinger in the Fall 2005 issue of the DePaul Law review, the author vehemently disagreed with the judges dismissal of de minimis and substantial similarity analysis instead stating that a de minimis analysis should be conducted for issues of sampling. In doing so the author stated that it should be found whether the sample constitutes a trivial portion of the original song, and whether the sample is quantitatively recognizable within the context of the alleged infringing song and whether the two songs are qualitatively similar. Ultimately though, as the judges noted in their decision for Bridgeport Music v. Dimension Films “where one stands [on this issue] depends on where one sits” and it is unlikely that the issue will be fully resolved any time soon.
Finally it should be noted that even with the 6th Circuit bright-line rule, most cases of sampling are settled out of court or “ignored” by artists within the community, particularly if the artist sampling isn’t well known or the song itself is not terribly popular.

*I feel I should point out that this is not legal advice, more a summary of how sampling and other ideas have been treated in court along with a little bit of analysis by yours truly. As with anything I write about the law, don't take it as authoritative more the thoughts of a pre-law student. Basically: I don't have a degree, so hire a real lawyer if you need real legal advice.