US Courts Split On Legality Of Music Sampling 28/06/2016 by Steven Seidenberg for Intellectual Property Watch 1 Comment Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window) Steven Seidenberg is a freelance reporter and attorney who has been covering intellectual property developments in the US for more than 20 years. He is based in the greater New York City area and may be reached at firstname.lastname@example.org. De minimis non curat lex – the law does not concern itself with trifles. This venerable legal principle is applied throughout the world, but not in one part of US copyright law. Copying any part of a sound recording, no matter how tiny, is actionable copyright infringement, according to an eleven year-old US appellate court ruling. Following that ruling, pop star Madonna found herself sued because her hit song, Vogue, allegedly copied a fraction of a second of another song. That copyright infringement suit was thrown out on 2 June, however, when a different appellate court ruled that de minimis infringements of sound recordings do not create any liability. Now US copyright law is in a muddle. Madonna The Madonna case provides a splendid example of a de minimis infringement. When making Vogue, Madonna allegedly sampled 0.23 seconds of a horn hit from an earlier song, entitled Love Break. This supposedly sampled horn hit was not a solo in Love Break, but occurred while many other instruments were playing. And Madonna did not use this horn hit in its original form, but allegedly shortened it and transposed it one-half step, creating notes that are half a step higher in Vogue. Moreover, Madonna did not use this allegedly altered horn hit in isolation. Madonna allegedly overlaid the sounds with that of many other musical instruments (and used the altered horn hits only a handful of times in Vogue). Unsurprisingly, both the trial court and the 9th Circuit found that an average listener would not suspect that any part of Love Break had been copied and used in Vogue. Both courts held the alleged copying, if it occurred, was de minimis. That did not end the lawsuit, however. The plaintiff asserted that even a de minimis infringement of a sound recording creates liability, noting that this interpretation of copyright law was adopted by the 6th Circuit in its 2005 decision, Bridgeport Music, Inc. v. Dimension Films. The 9th Circuit rejected the plaintiff’s argument and the 6th Circuit’s position. The panel in VMG Salsoul v. Madonna Ciccone [pdf] ruled that de minimis infringements of sound recordings do not create any liability, explicitly creating a circuit split on this issue. A Flawed Statute The Bridgeport ruling arose from the 6th Circuit’s interpretation of Section 114(b) of America’s copyright statute. That section states, in part, “The exclusive rights of the owner of copyright in a sound recording … do not extend to the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording [emphasis added].” The 6th Circuit declared that the word “entirely” must mean something. Thus, the provision limits a copyright owner’s rights only when another recording consists completely of a different musical performance, without copying anything from copyright owner’s recording. If there is any copying at all from the copyright owner’s recording, that is actionable infringement, the 6th Circuit held. This interpretation rests on a “logical fallacy,” the 9th Circuit noted in VMG Salsoul. Creating a statutory safe harbor for certain sound recordings does not automatically mean that all sound recordings outside the safe harbor are automatically infringing. The provision says nothing that explicitly negates other defenses to infringement, such as fair use or the de minimis doctrine. Still, the 6th Circuit’s strict interpretation of Section 114(b) is a “defensible” reading of the statute, according to Prof. Daniel J. Gervais of Vanderbilt University Law School. He adds, however, that Section 114 is exceptionally problematic. “Most people who practice copyright law will admit that they don’t understand Section 114. It is one of the nation’s most poorly drafted statutory provisions,” Gervais stated. So to determine the meaning of Section 114(b), the 9th Cir. looked to the legislative history and the overall structure of the Copyright Act. According to the Congressional committee [pdf] that drafted this statute, “The approach of the bill is to set forth the copyright owner’s exclusive rights in broad terms in section 106, and then to provide various limitations, qualifications, or exemptions in the 12 sections that follow. Thus, everything in section 106 is made ‘subject to sections 107 through 118.’” Because Congress intended Sections 107 through 118 – including Section 114(b) – to limit the rights of copyright holders, the 6th Circuit’s interpretation of Section 114(b) was wrong, according to the 9th Circuit and most copyright experts. “Section 114(b) was expressly designed to limit copyright in sound recordings. The 6th Circuit interpreted it instead to greatly broaden rights in sound recordings, to grant rights no other copyrighted work has, which is immunity from the de minimus standard,” said Prof. Tyler T. Ochoa of Santa Clara Law School. Supporting Infringement There has been a great deal of pushback against the 6th Circuit’s reading of Section 114(b). “The Bridgeport decision has been widely criticized by legal academics,” said Prof. Lydia P. Loren of Lewis & Clark Law School in Portland, Oregon. The judiciary, too, has expressed its opposition. “An overwhelming number of district court judges outside of the 6th Circuit have found that the de minimis exception applies to sound recordings,” said Loren. This stance is based not just on statutory interpretation, but on policy grounds. For starters, many experts assert that de minimis infringements do not hurt copyright owners. “A lay audience can’t recognize an appropriation when it is de minimis, so there’s no legitimate reason for the copyright owner to be compensated,” said Loren. “If what is taken is so small that there is no risk that the copyright owner would lose sales or licenses, that should not create liability for infringement.” On the other hand, allowing de minimis infringements helps foster creativity. “The de minimis exception recognizes that if you only take small pieces of another’s work, it promotes creativity. You have mostly done your own work and taken only little tiny pieces,” said Ochoa. A similar view was announced recently by Germany’s Federal Constitutional Court. On 31 May, in a case involving the copying of two seconds of a Kraftwerk song, the court declared that there was a constitutional right to sample copyrighted sound recordings. Freedom of artistic activity trumped any “minor” infringement of a sound recording that did not produce “considerable economic disadvantages” for the recording’s copyright owner, the court held. Finally, there are the larger policy reasons for the de minimis doctrine: Significant amounts of time, money and judicial resources should not be squandered to resolve a trivial dispute. This is a widely accepted policy whose pedigree goes back centuries. “The de minimis doctrine is not a copyright doctrine, but a rule from Roman law. It is essentially a worldwide rule, applicable anywhere in Europe and in most legal systems I can think of,” said Gervais. Not Over Yet Because of the 9th Circuit’s decision in VMG Salsoul, the US now faces has a clear circuit split over the legal treatment of music sampling. In the 6th Circuit, any sampling creates liability for copyright infringement, while in the 9th Circuit, de minimis sampling creates no liability for infringement. Such circuit splits are typically resolved by the US Supreme Court, so the high court might grant certiorari to VMG Salsoul. “Usually the Supreme Court grants certiorari only after several circuits have issued contradictory rulings, but in recent years, the Supreme Court has expressed a greater interest in IP, so who knows what the court will do?” said Loren. If the court does grant certiorari, the 6th Circuit’s position is likely to be in trouble. “Justice Thomas is disdainful of legislative history, but anyone who understands what was going on when sound recordings were added to the Copyright Act will understand that Section 114(b) was meant to limit copyrights in sound recordings, not expand them,” said Ochoa. Moreover, the Supreme Court has repeatedly expressed disapproval for bright line rules in IP law, such as that adopted by the 6th Circuit in Bridgeport. “At least five times in recent years, the Supreme Court has told the Federal Circuit not to adopt bright line tests. So that’s probably a sign the Supreme Court would support the 9th Circuit’s interpretation,” said Gervais. He added, “If you wanted to challenge Bridgeport, this would be a good set of facts.” Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window) Related Steven Seidenberg may be reached at email@example.com."US Courts Split On Legality Of Music Sampling" by Intellectual Property Watch is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.