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A De Minimis Amount of Creative Freedom: Courts Push Back to Protect Music Sampling

DEEPLINKS BLOG
June 3, 2016

A De Minimis Amount of Creative Freedom: Courts Push Back to Protect Music Sampling

Too often copyright maximalists take the view that if anyone is making money and using a copyrighted work, no matter how or how minimally, then the copyright owner should get a cut. That’s the attitude that has pushed, among other things, a “clearance culture” in music sampling, a belief that permission is needed to create something new that includes samples.

This week, however appellate courts in two countries pushed back just a bit.  On Thursday, the Ninth Circuit held [PDF] that that a sample taken from Salsoul Orchestra’s disco song Love Break and used in Madonna’s Vogue was “de minimis” copying and therefore non-infringing. The sample in question, a 0.23-second “horn hit” plays several times throughout Vogue but, said Judge Susan Graber, was so brief that no ordinary person would recognize it as originating from Love Break.” Notably, this decision directly contradicts an earlier ruling by the Sixth Circuit in Bridgeport Music, Inc. v. Dimension Films, which held that the general “de minimis” rule of copyright law did not apply to sound recordings. That decision has been widely criticized over the past ten years. Neither court reached the question of whether fair use protects sampling (it likely would, in many cases).

The Ninth Circuit decision this week came on the heels of a ruling in a long-running dispute between Kraftwerk and German music producer Moses Pelham. In 2004, Kraftwerk sued Pelham over the use of a 2-second sample from Kraftwerk’s Metall auf Metall. A lower court ruled in Kraftwerk’s favor, observing that even sampling the “tiniest sliver” of a sound recording could constitute infringement. On appeal, the German Constitutional Court, held that requiring the creator’s permission to take such a small sample would significantly interfere with the creation of modern music, particularly hip-hop. The court also noted that such a limited use of the original recording would have only minimal effect on the recording’s commercial success.

The German court’s observation of the effect of its ruling on hip-hop was well taken.  In the US, a presumption that every sample must be cleared has priced out most artists, who cannot afford to pay the average of $10,000 for a single sample, let alone $200,000 to license twenty samples for a song. The belief that sampling requires permission, and the prohibitive prices demanded by rightsholders, have contributed to the consolidation of hip-hop music under a shrinking number of labels, to the point that Universal Music Group controlled 80% of the genre’s top hits by 2013. The threat of copyright litigation over sampling has also been credited with making hip-hop less political by limiting the artistic dialogue between artists and what has come before.

An overbroad conception of copyright law distorts culture, and it is heartening to see courts in two countries pushing back to protect freedom of expression.

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