Two US Courts of Appeal have, in the space of nine weeks, confirmed two clear and concise rules for using samples without consent:
- For musical compositions: when sampling another writer’s song, the sample must be so short or insignificant that the average listener would not recognise the original composition from the sample taken; and
- For sound recordings: irrespective of whether the sampled recording can be recognised in the new recording, get a licence from the owner of the original recording or do not sample it at all.
On 9 November 2004, the 9th Circuit US Court of Appeals affirmed its own decision of last year in Newton v Diamond in the case brought by the jazz flautist James Newton against the Beastie Boys for infringing the copyright in his composition “Choir”.
In 1992, the Beastie Boys obtained a licence from ECM Records to sample the recording of “Choir” for use in their own recording “Pass the Mic”. The Beasties Boys did not, however, obtain a licence from Newton to use his composition embodied in the recording from which the sample was taken. Thus, while the band were entitled to use the 6-second sample of the sound recording which was looped throughout the new recording, Newton claimed that they should have obtained his consent to use the portion of his composition (consisting of three notes, C – D flat – C, sung over a background flute note) that was embodied in the sampled recording . The judge at first instance found that the sampled snippet of Newton’s composition was too short (and therefore insufficiently “original”) for copyright protection and that the extract from the song “Choir” embodied in the sample was too insignificant to constitute an infringement of the copyright in the original composition (“de minimis”).
The Appeal Court agreed and confirmed the rule that use of a portion of a composition requires no licence if it is “so meagre and fragmentary that the average audience would not recognise the appropriation”. The court further stated that this “reflects the general test of substantial similarity, which also looks to the response of the average audience”. In other words, if the man on the street can “name that tune” (i.e. identify the composition in the sample) then a licence to use the sample (as a portion of the composition) must be obtained.
On 7 September 2004, the 6th Circuit US Court of Appeal in Bridgeport Music v Dimension Films reversed a first instance decision regarding the NWA song “100 Miles and Runnin”, which contained a sample of a recording of a three-note guitar riff lasting 2 seconds from “Get Off Your Ass and Jam” by George Clinton and Funkadelic owned by Bridgeport. The Appeal Court found that this was an infringement of the copyright in the sound recording.
NWA had licensed their recording to Dimension Films for use in a film. Dimension admitted that the offending sample was used in the NWA recording (looped for a total of 35 seconds). However, Dimension argued successfully at first instance that the sampled portion of Bridgeport’s recording was too short to constitute an infringement (“legally insubstantial”).
The Appeal Court could not have disagreed more. Noting that there are currently 800 other cases yet to decide involving samples from recordings, the court recognised the need for a “bright-line rule” and did not hesitate in formulating one: all sound recording samples must be licensed and the concepts of “de minimis” or “substantial similarity” do not even enter the equation in relation to sound recordings. In support of this new hard-line approach, the court noted the “ease of enforcement” of such an absolute law and claimed that “the market” would create fair licence fees which would never be greater “than it would cost the person seeking the licence to just duplicate the sample in the course of making the new recording”. However, the court also made the correctly observed assertion that “sampling is never accidental” and that when a producer samples a sound recording he knows he is “taking another’s work product”.
Notwithstanding the possibility that the US Supreme Court may review Bridgeport Music v Dimension Films (which may be untenable insofar as it appears to deny the globally accepted concept of “substantiality” in relation to copyright infringement) it seems that these two decisions have supported the old licensing-friendly position from Grand Upright v Warner [1991] but also extended it much further.
Though these are US judgments not directly applicable in the UK and while it may still be possible, if seriously risky, to sample a small portion of someone’s composition without consent, the door to sampling even a tiny part of a sound recording appears to be, at least for the foreseeable future, more tightly shut and the most prudent advice is: get a licence or do not sample.
The full text of the Newton v Diamond judgment can be accessed via http://www.ca9.uscourts.gov/.