Music Sampling Lawsuits: Does Looping Music Samples Defeat the De Minimis Defense?
Wilson, Stephen R., The Journal of High Technology Law
Def Jam recording artist 3rd Base were prophetic when they rapped, (1) "[Y]a boosted the record then ya looped it, ya looped it ... now ya getting sued kinda stupid...." (2) The lyrics refer to the practice of sampling, or more specifically, looping unauthorized samples.
Sampling is the process of digitally copying a portion of a pre-existing recording and inserting this "sample" into a new recording. (3) Music fans may recognize Jimmy Page's guitar riff (4) from Led Zeppelin's Kashmir (5) on Puff Daddy's 1998 single Come With Me. (6) Additionally, record producers commonly incorporate unrecognizable samples into their songs. (7) For instance, Come with Me also contains a four bar drum sample from Led Zeppelin's When the Levee Breaks. (8)
Sampling pre-existing recordings affords the record producer significant benefits. (9) A producer may reduce the costs associated with traditional recording when he uses samples because doing so minimizes the need to hire live musicians. (10) For all its benefits, however, sampling preexisting recordings without the permission of the composer (11) and record company (12) violates copyright law. (13)
The amount of appropriation required for actionable copying, however, is currently unascertainable. (14) Few unauthorized sampling lawsuits ever reach the trial level. (15) Settlements are common in sampling lawsuits primarily because case law offers sparse judicial guidance as to what constitutes an unlawful appropriation. (16) This circular problem results in scant case law.
The music industry is hopeful that a couple of sampling lawsuits pending in court will yield some insight into the unauthorized sampling issue. (17) In Nashville district court, Bridgeport Music filed a 1077-page complaint, on behalf of funk music legend George Clinton and others, alleging hundreds of instances of unauthorized sampling from record and publishing companies, artists, and others. (18) Additionally, in the Southern District of New York, rap artist Marlon Williams, professionally known as Marley Marl, filed a complaint against Calvin Broadus, professionally known as Snoop Dogg, alleging copyright infringement for sampling a portion of his song The Symphony. (19) These cases may serve as a benchmark for future sampling cases if the court renders a detailed judicial decision.
The courts are unlikely to establish a standard for determining the threshold for unlawful appropriation. (20) Generally, the trier of fact determines whether the appropriation amounts to copyright infringement by applying various tests and theories. (21) The analysis becomes increasingly difficult, however, when the producer has looped the sample in question. (22) Does looping a de minimis sample change the unlawful appropriation analysis? This note will analyze the effectiveness of the de minimis defense when producers loop unauthorized samples. (23)
Part I of this note will define and explain the digital sampling process and summarize the historical background and popularization of digital sampling and rap music. Part II will summarize the applicable copyright laws associated with unauthorized sampling including the fair use defenses. Next, Part III will examine the de minimis rule as an affirmative defense to copyright infringement. Specifically, Part III will define the de minimis defense, apply the defense as it relates to looped samples, discuss sampling cases generally, and examine de minimis copyright cases by analogy. Lastly, Part IV will conclude that looped samples may not fall within the de minimis defense purview.
I. DIGITAL SAMPLING
Digital sampling involves the process of capturing periodic samples of changing analog audio waveforms and transforming them into binary code. (24) In effect, the digital recording device takes snapshots of the analog voltages along a continuous and fluctuating line, and then assigns a binary code representing the voltage level at that particular time. …