One of the exclusive rights enjoyed by copyright owners, including producers of musical recordings, is the right to make “derivative works.” This means that generally no one may use a recording of a song to create a new record without consent of the owner of the copyright in the recording. On the other hand, copyright infringement only exists where the copied recording and the allegedly infringing record are “substantially similar,” and generally a record will not be considered substantially similar where the portion copied ("sampled") is too small and insignificant. This is referred to as the "de minimis" rule, and it has allowed for a great deal of creativity in the development of new music, especially hip-hop, where sampling small excerpts of other records is very common.
Sampling is also one of the most important ways to reduce the cost of entering into audio production. In fact, with sampling a competent producer and a talented rapper can make a commercially acceptable record with only digital audio recording equipment and software, plus a CD collection. Of course, there is no question that where a recognizable piece of preexisting copyrighted music is used as a key part of the new work, permission of the copyright owner is required. But last September, in a very controversial decision, Bridgeport Music, Inc. vs. Dimension Films, the U.S. Court of Appeals for the Sixth Circuit, which sits in Nashville, ruled that any sampling of prerecorded sounds is an infringement of the sound recording copyright in the original master no matter little was used or whether the material used is even recognizable. After a firestorm of criticism erupted in response to the court's decision, amongst both scholars and the music production community, the court agreed to reconsider its ruling. The modified opinion was handed down earlier this month.

The new opinion gives hope that sampling of portions of previously recorded songs will still be allowed where there the sampling of the original is so minute that there is little threat of commercial harm to the original copyright owner.

Two Second Sample
This case arose out of the use of only 2 seconds of a guitar solo in the record "Get Off Your Ass and Jam" by George Clinton, Jr. and the Funkadelics, in a new rap song "100 Miles and Runnin" which was included in a soundtrack of a movie. Not only was the amount of the sampled record limited to a couple of seconds, but in addition the pitch was lowered, and the copied piece was looped and extended to 16 beats. As a result, the original recording was practically unrecognizable, and the federal district court ruled in favor of the defendants, finding that the use of the original material was de minimis, that is, that the sampling did not "rise to the level of a legally cognizable appropriation."

New Rule Shocks Copyright Scholars and Creative Community
But in a decision that both startled and dismayed many in the recording industry as well as copyright scholars, the Sixth Circuit reversed the district court's decision. The Sixth Circuit declared: "[I]f you cannot pirate the whole sound recording, can you 'lift' or 'sample' something less than the whole? Our answer to that question is in the negative." Writing for the court, Judge Ralph B. Guy exclaimed: "Get a license or do not sample. We do not see this as stifling creativity in any significant way." The court justified its decision with two arguments: the language of the Copyright Act and notions of "judicial economy."

In regard to the statute, the court relied on a provision of the Copyright Act that states that owners of sound recordings can only sue for copyright infringement if the new work actually took elements of the recording itself rather than re-creating the sound embodied in the original recording. The court reasoned that this implies that taking any part of the recording was copyright infringement. Many copyright scholars disagree with this analysis. They point out that the language relied on by the court is actually a limitation on the right of sound recording owners to claim copyright infringement. It was not intended to confer greater rights on owners of sound recordings than owners of other copyrighted works! In fact, the Sixth Circuit conceeded that the owner of the underlying song would not win a case in which only a brief excerpt was taken from the song and used a way that the music was unidentifiable. Yet the court found that owners of master have more rights than owners of songs based on its questionable reading of the statute.

Judicial Economy or Judicial Laziness?
The second argument, that is, judicial economy, some believe was the real motive for the court's decision. The court pointed out that the plaintiff had brought hundreds of other sampling cases involving George Clinton's music. Their opinion stated that:
"district judge did an excellent job of navigating these troubled waters (presumably listening to both recordings), but not without dint of great effort. When one considers that he has 800 other cases all involving different samples from different songs, the value of a bright-line rules becomes apparent."

Thus according to the court, the new rule that any sampling of a copyrighted recording is prohibited would streamline the judicial process. Many in the hip hop and creative community, as well as scholars were outraged by this argument. Since when did the workload of the courts excuse a crack down on creatively protected by the notions of free speech and artistic expression?

The Sixth Circuit Reconsiders
In the wake of all the criticism, the Sixth Circuit agreed to reconsider its decision. Although its revised opinion started by regurgitating its initial analysis and even confirmed its "new bright-line" rule that all sampling of music recordings can never be de minimis, the revised opinion ultimately took an extra step that has the effect of completely modifying its earlier decision. The court added at the very end of it's reconsidered opinion:

"Since the district judge found no infringement, there was no necessity to consider the affirmative defense of 'fair use.' On remand, the trial judge is free to consider the defense and we express no opinion on its applicability."

This means that the court sent the case back to the lower federal court to apply a fair use analysis. In other words, the defendants will have another opportunity to justify its use of the sample! More importantly, since the district court found that the sampling did not "rise to the level of a legally cognizable appropriation" it seems likely they will find that the sampling in this case was a fair use. In evaluating whether the use made of a work in any particular case is a fair use, one of the most important factors to be considered is “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” (Section 107 of the Copyright Act.) Other factors are the purpose and character of the use, the nature of the copyrighted work, and the effect of the use upon the potential market for or value of the copyrighted work. The last factor also weighs heavily in the direction of the defendant in this case because their use of two seconds of the original recording in a way that the original is thoroughly unrecognizable will obviously have no effect on the potential market for the original song.

It’s interesting to note that by remanding the case for a fair use analysis, the Sixth Circuit completely undercut one of the principal justifications for its original decision: Save judicial work and time. But by sending the case back for a fair use analysis they completely destroy any judicial economy that would otherwise be achieved by getting rid of the de minimum rule! A fair use analysis takes even more work and time than a de minimis analysis -- under a de minimis analysis -- you basically just have to listen to both songs -- fair use requires you to do this plus apply a variety of thorny legal concepts.