District court erroneously granted summary judgment for defendant on claim for copyright infringement based on fact that defendant's copying of plaintiff's copyrighted sound recording was merely de minimis. Court of Appeals rejects de minimis defense to claim for copyright infringement of a sound recording.
Bridgeport brought the issue before a federal judge, who ruled that the incident was not in violation of copyright law. The U.S. Court of Appeals for the Sixth Circuit reversed the decision and ruled that the sampling was in violation of copyright law. Their argument was that with a sound recording, an owner of the copyright on a work had exclusive right to duplicate the work. Under this interpretation of the copyright law, usage of any section of a work, regardless of length, is in violation of copyright unless the copyright owner gave permission. In its decision, the court wrote: "Get a license or do not sample. We do not see this as stifling creativity in any significant way."[1]
This decision effectively eliminates the de minimis doctrine for digitally sampling recorded music in the Sixth Circuit, and has affected industry practice. However, the court expressly noted that the decision did not preclude the availability of other defenses, such as fair use, even in the context of "sampling." Thus, in the Sixth Circuit, defendants who digitally sampled may not rely on the de minimis doctrine to say that they copied such a small amount that they are not liable for copyright infringement. However, they may still argue that their use of the sample is a fair use—that is, that the use is transformative rather than derivative.
Influence
The New York University musicologist and sampling expert Lawrence Ferrara describes the effects of the Bridgeport case on sample-based music as, "extremely chilling, because it basically says that whatever you sample has to be licensed, in its most extreme interpretation."[2]
The case has also been influential in the rest of the world: on November 20, 2008, the electronic pioneers Kraftwerk were successful in a landmark case "Metall Auf Metall"[3] in the Federal Court of Justice of Germany (Bundesgerichtshof, abbreviated BGH), which quotes Bridgeport Music, Inc. v. Dimension Films and decided that even the smallest shreds of sounds are copyrightable and that the sampling of a drum beat can be copyright infringement. Under German law, however, this result is de lege lata—applicable only to that case. The BGH only mentioned the Bridgeport case without discussing it.[4]
In the United States, the case has been less favorably received. Most recently and significantly, the Ninth Circuit rejected its reasoning explicitly in the 2016 VMG Salsoul v Ciccone (Madonna) case: "We recognize that the Sixth Circuit held to the contrary in Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005), but—like the leading copyright treatise and several district courts—we find Bridgeport’s reasoning unpersuasive."[5] A number of District courts have rejected the decision explicitly or declined to apply it,[6] including courts in New York,[7] Florida,[8] California,[9] and Louisiana.[10]
↑ McLeod and DiCola. Creative License: The Law and Culture of Digital Sampling. p. 143.
↑ Conley, Neil; Braegelmann, Tom H. (2009). "English Translation: Metall auf Metall (Kraftwerk, et al. v. Moses Pelham, et al.), Decision of the German Federal Supreme Court no. I ZR 112/06, dated November 20, 2008". Journal of the Copyright Society. 56: 1017. SSRN1504982.
↑ See string-cite in VMG Salsoul v. Ciccone, 9th Circuit June 2, 2016, at p.30 of the PDF slip opinion.
↑ EMI Records Ltd. v. Premise Media Corp., No. 601209, 2008 WL 5027245 (N.Y. Sup. Ct. Aug. 8, 2008) (unpublished).
↑ Saregama India Ltd. v. Mosley, 687 F.Supp.2d 1325 (S.D.Fla. 2009), affirmed on other grounds, Saregama India Ltd. v. Mosley, 635 F.3d 1284 (11th Cir. 2011).
↑ Steward v. West, No. 13-02449, Docked No. 179 at 14 n.8 (C.D. Cal. 2014) and Pryor v. Warner/Chappell Music, Inc., No. CV13-04344, 2014 WL 2812309, at *7 n.3 (C.D. Cal. June 20, 2014) (unpublished).
↑ Batiste v. Najm, 28 F. Supp. 3d 595, 625 (E.D. La. 2014)
Fair use is a doctrine in United States law that permits limited use of copyrighted material without having to first acquire permission from the copyright holder. Fair use is one of the limitations to copyright intended to balance the interests of copyright holders with the public interest in the wider distribution and use of creative works by allowing as a defense to copyright infringement claims certain limited uses that might otherwise be considered infringement. Unlike "fair dealing" rights that exist in most countries that were part of the British Empire in the 20th century, the fair use right is a general exception that applies to all different kinds of uses with all types of works and turns on a flexible proportionality test that examines the purpose of the use, the amount used, and the impact on the market of the original work.
De minimis is a Latin expression meaning "pertaining to minimal things", normally in the terms de minimis non curat praetor or de minimis non curat lex, a legal doctrine by which a court refuses to consider trifling matters. Queen Christina of Sweden (r. 1633–1654) favoured the similar Latin adage, aquila non capitmuscās.
A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 was a landmark intellectual property case in which the United States Court of Appeals for the Ninth Circuit affirmed the a district court ruling that the defendant, peer-to-peer file sharing service Napster, could be held liable for contributory infringement and vicarious infringement of copyright. This was the first major case to address the application of copyright laws to peer-to-peer file sharing.
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"Atomic Dog" is a song by George Clinton from his 1982 album Computer Games. The track was released as a single in December 1982 and became the P-Funk collective's last to reach #1 on the U.S. R&B Chart. The single failed to chart on the Billboard Hot 100 although it has attained a level of stature since then, partly due to its having been sampled in several hip hop songs.
BMG Music v. Gonzalez, 430 F.3d 888, was a court decision in which the United States Court of Appeals for the Seventh Circuit ruled that a record company could sue a person who engaged in online sharing of music files for copyright infringement. The decision is noteworthy for rejecting the defendant's fair use defense, which had rested upon her contention that she was merely "sampling" songs with the intention of possibly purchasing the downloaded songs in the future, a practice known informally as "try before you buy".
Greenberg v. National Geographic was a copyright lawsuit regarding image use and republication rights of National Geographic Society to their magazine in electronic form.
Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991), was a landmark decision by the Supreme Court of the United States establishing that information alone without a minimum of original creativity cannot be protected by copyright. In the case appealed, Feist had copied information from Rural's telephone listings to include in its own, after Rural had refused to license the information. Rural sued for copyright infringement. The Court ruled that information contained in Rural's phone directory was not copyrightable and that therefore no infringement existed.
In copyright law, a derivative work is an expressive creation that includes major copyrightable elements of a first, previously created original work. The derivative work becomes a second, separate work independent in form from the first. The transformation, modification or adaptation of the work must be substantial and bear its author's personality sufficiently to be original and thus protected by copyright. Translations, cinematic adaptations and musical arrangements are common types of derivative works.
Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), also known as the "Betamax case", is a decision by the Supreme Court of the United States which ruled that the making of individual copies of complete television shows for purposes of time shifting does not constitute copyright infringement, but is fair use. The Court also ruled that the manufacturers of home video recording devices, such as Betamax or other VCRs, cannot be liable for contributory infringement. The case was a boon to the home video market, as it created a legal safe haven for the technology.
In sound and music, sampling is the reuse of a portion of a sound recording in another recording. Samples may comprise elements such as rhythm, melody, speech, sound effects or longer portions of music, and may be layered, equalized, sped up or slowed down, repitched, looped, or otherwise manipulated. They are usually integrated using electronic music instruments (samplers) or software such as digital audio workstations.
"Get Off Your Ass and Jam" is a song by Funkadelic, track number 6 to their 1975 album Let's Take It to the Stage. It was written by George Clinton, although the lyrics are made up entirely of repetitions of the phrase, "Shit! Goddamn! Get off your ass and jam!", interspersed with lengthy guitar solos. Critic Ned Raggett reviewed the song as one that "kicks in with one bad-ass drum roll and then scorches the damn place down".
Substantial similarity, in US copyright law, is the standard used to determine whether a defendant has infringed the reproduction right of a copyright. The standard arises out of the recognition that the exclusive right to make copies of a work would be meaningless if copyright infringement were limited to making only exact and complete reproductions of a work. Many courts also use "substantial similarity" in place of "probative" or "striking similarity" to describe the level of similarity necessary to prove that copying has occurred. A number of tests have been devised by courts to determine substantial similarity. They may rely on expert or lay observation or both and may subjectively judge the feel of a work or critically analyze its elements.
Cartoon Network, LP v. CSC Holdings, Inc., 536 F.3d 121, was a United States Court of Appeals for the Second Circuit decision regarding copyright infringement in the context of DVR systems operated by cable television service providers. It is notable for partially overturning the Ninth Circuit precedent MAI Systems Corp. v. Peak Computer, Inc., regarding whether a momentary data stream is a "copy" per copyright law.
Twentieth Century Music Corp v. Aiken, 422 U.S. 151 (1975), was an important decision of the United States Supreme Court, out of the Third Circuit, that questioned whether the reception of a copyrighted song on a radio broadcast constitutes a copyright violation if the copyright owner has only licensed the broadcaster to "perform the composition publicly for profit".
Moses Pelham is a German rapper, singer and producer.
Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519 (2013), is a United States Supreme Court copyright decision in which the Court held, 6–3, that the first-sale doctrine applies to copies of copyrighted works lawfully made abroad.
Bridgeport Music is a music publishing company founded in Michigan by Armen Boladian in 1969. It controls the copyrights to recordings by George Clinton and Funkadelic. Bridgeport Music has filed lawsuits for copyright infringement via sampling against hundreds of defendants under the federal copyright statute, 17 U.S.C., leading to them to being often described as a "Sample troll". Among others, Bridgeport has sued for sampling infringements in popular music produced by Public Enemy, N.W.A, Jay-Z and The Notorious B.I.G. - a case in which the jury awarded Bridgeport more than $4 million in damages.
Garcia v. Google, Inc., 786 F.3d 733, is an ongoing dispute that arose when Cindy Lee Garcia sued Google and its video-sharing website, YouTube, to have the controversial film, Innocence of Muslims, taken down from the site. A California district court denied Garcia's motion for preliminary injunction, but, on appeal, a panel of the United States Court of Appeals for the Ninth Circuit reversed the lower court's decision, ordered YouTube to take down all copies of Innocence of Muslims, and remanded the case to the district court for reconsideration. In May 2015, in an en banc opinion, the Ninth Circuit reversed the panel's decision, vacating the order for the preliminary injunction.
VMG Salsoul v Ciccone 824 F.3d 871 is a court case that has played an important role in redefining the legal status of sampling in music under American copyright law. The case involved a claim of copyright infringement brought forth against the pop star Madonna, for sampling the horns from an early 1980s song "Ooh I Love It " by the Salsoul Orchestra in her international hit song "Vogue". Such sampling was done without a license, or compensation to VMG Salsoul, LLC, which was the copyright holder of "Love Break" and therefore brought suit claiming infringement and damages. The Ninth Circuit was to rule upon a contentious issue in the music industry at large, i.e. whether the de minimis defense is applicable against a claim of copyright infringement in the case of sound recording, with special regard to the practice of sampling.
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