Bridgeport Music, Inc. v. Dimension Films, No. 01-00412—Thomas A. Higgins, District Judge (2005).
This case involves N.W.A.'s song "100 Miles and Runnin" which has a two second sample from George Clinton Jr. and the Funkadelic's song "Get Off Your Ass and Jam". N.W.A. just took that 2 second clip, lowered the pitch and looped it on their song. Since this was done without getting consent from Bridgeport Music, Dimension Films was brought to court because N.W.A.'s song was featured on the soundtrack of one of their movies, I Got the Hook Up. Bridgeport, however, entered into two agreements with two of the owners of "100 Miles and Runnin", which granted them the license to sample so Bridgeport was originally ruled against by the U.S. district court. Bridgeport argued that "(1) that the sample was not protected by copyright law because it was not "original"; and (2) that the sample was legally insubstantial and therefore does not amount to actionable copying under copyright law." Then the case was taken to the Sixth Circuit. Here the court used the factors for exclusive rights in the Copyright Act of 1976 and ultimately ruled that Bridgeport's copyright rights had been violated.One of the most important issues here would be that of de minimis. It is defined as something that is so small and insubstantial that it can be overlooked, which three notes seemed to be initially. The Sixth Circuit ruled that this and substantial similarity should not be factored in when ruling on a sound recording. Since there was no debate about whether or not part of "Get Off Your Ass and Jam" and was copied, which it was, the court ruled in favor of Bridgeport Music. This ruling ties heavily into the rap industry as de minimis is often relied upon by producers. While Vanilla Ice shouldn't be able to get away with using virtually the same song as another group without permission, it was often acceptable to take a small piece of another work and build off that. This ruling causes the prevention of this in many cases. Producers would not be able to borrow anything due to de minimis becoming outlawed in a sense for sound recording cases, which is where hip hop music needs it. If the law were to continually make rulings that further narrow the range for sampling, those rappers/producers without much money would be scared off because they could not borrow even the tiniest bit from another song, stifling their creativity due to a ruling against one of the conventions of their genre of music.
Campbell v. Acuff-Rose Music (92-1292), 510 U.S. 569 (1994)
The rap group 2 Live Crew used a sample of Roy Orbison and William Dees' "Oh, Pretty Woman" for their track, "Pretty Woman", on their album As Clean As They Wanna Be without Orbison's permission. This led to a copyright infringement case being filed by Orbison and a ruling by the Supreme Court which has great implications for both rap and music as a whole. 2 Live Crew's defense was that their song was a parody, and as such should be seen as fair use since a parody must borrow heavily from the original artwork in order to spoof it.
The court went through the 4 factors that typically determine fair use as outlined by the Copyright Act of 1976. On the first factor (The purpose and character of the use) the court determined that since 2 Live Crew's version of the song was fairly transformative, this outweighed the commercialism that would rule against fair use. As for the second factor (the nature of the copyrighted work), the Supreme Court decided that because the song is a parody, it intrinsically borrows heavily from a public, copyrighted work, and thus does not put too much weight on this factor for determining fair use. The third factor, (the amount and substantiality of the portion of the original work used), the court decided that as a parody, it was necessary for 2 Live Crew to borrow the "heart" of the work, however they differentiated their song enough from Orbison's by changing the lyrics heavily. For the fourth factor, (the effect of the use upon the market (or potential market) for the original work), they determined that it is unlikely for this work to substitute the original, and thus would not harm Sony's market.
This case is very important to music because it was one of the earliest to set down guidelines as for sampling in music, though it was a parody. Also, at this point, these types of cases were rare for courts to see, so the legislation for ruling on them was ill-defined. It was determined that parodies can not be automatically determined by an aggregate set of laws and must be tried on a case to case basis. Since rap music often samples in ways like 2 Live Crew did, this ruling essentially let the reigns free for other artists to sample music by diminishing their fears of it not being fair use. However, this is a parody and majority of rap songs are not, meaning that they are given less leeway when it comes to fair use.
Go to this site: http://www.findlaw.com/casecode/courts/6th.html and search for Bridgeport. Click Bridgeport v.WB Music Corp.
Bridgeport Music, Inc. v. Warner Bros. Music Corp., 2004 FED App. 0233P (6th Cir.)
Bridgeport once again claims that due to sampling by Ice-T of the opening three notes of George Clinton's "Get Off Your Ass and Jam" in his song "99 Problems" on the Home Invasion album, their copyright rights had been infringed upon. A key factor that differentiates this case is that there is approval of the sampling, but Bridgeport believed it was entitled to more money than they initially received due to profit being made after the limitations period. UPIP, the label under which Ice-T recorded the song, had a mechanical license for the song and received royalties for it. This is not an issue because Bridgeport never asked for the license to be revoked, and thus could not be considered infringement. Bridgeport also targeted Ammo Dump Music and Carrumba Music, which it ultimately failed to win anything from.This case is different from the others in that it is one that is both positive for the rap industry and for the evolution of copyright case law. Essentially, this case helped to solidify the fact that once rights are obtained to do something, such as sample music and make money off that new music, then it is hard to be taken away. Bridgeport received money to let the rights for "Get Off Your Ass and Jam" go, yet they were not satisfied with just that and attempted to glean more money off of the success of the derivative work. This case prevented them from doing so by outlining how the distribution of money and rights are once sampling is allowed. The immediate label Ice-T was part of here had 66.7% of the rights to his song while UPIP managed to acquire the other 33.3%. Bridgeport wanted that 33.3%, but was denied. This helps to further the rap industry because with its large amount of sampling, there has to be a certain amount of security in order to protect the money received from the money acquired after the rights for the sample are acquired. A label should not be able to get extra money off of a product unless it was agreed upon initially.
Grand Upright Music v. Warner Bros. Records, 02-cv-01662-RPM 780 F. Supp. 182 (S.D.N.Y. 1991)
This case involves Biz Markie's sampling of Gilbert O'Sullivan's, "Alone Again (Naturally)" for a song on Markie's album I Need A Haircut. Markie, under Warner Bros. Records, claimed that his sampling of 3 words and a small portion of O'Sullivan's song was fair use because Grand Upright Music did not have a valid copyright of the song. This turned out to be false as it was learned that Sullivan had indeed transferred the rights of the song to Grand Upright Music.
This is an important case to look at because unlike 2 Live Crew, who were told that they could not use the original work and did it anyway, Markie claimed that he sampled a song that he legitimately believed the rights were up in the air for. Also, 2 Live Crew set a precedent for the rap industry to begin using samples, whether they were approved of or not. This became part of rap music itself, and this point was argued by Markie's camp. The court did not factor this into their decision, ruling for an injunction against Warner Bros. citing that there was evidence that they tried to obtain permission for the song and was not able to, and thus had infringed on Grand Upright Music's rights. Their ruling was also rooted in the fact that the album could become commercially successful using a song that willfully infringed upon the rights of another.
Rap music as stated above hinges on the fact that sampling is part of the industry. Markie's loss in court serves as an antithesis to what happened in the 2 Live Crew case. Here, a rapper is penalized for sampling a song, even with the attempt of trying to secure the rights. Instead of rappers and producers gaining more confidence in sampling music, this case most likely drove some away. At that point, it could even be seen as the catalyst to a fall in the genre. It also sent a message that the attempt to obtain rights was not heavily valued, just whether they were attained in the end or not.
Marshall, Wayne. "Giving Up Hip-hop's Firstborn: A Quest for the Real after the Death of Sampling" Callaloo Vol 29 (2006)
This journal article uses ?uestlove of the hip hop group, The Roots, to highlight how today's artists are dealing with copyright law. The Roots are notorious in the modern day industry because they sample very minimally due to the fact that they play their own instruments, and thus, create their own music with them. Because of this they are able to create hip hop without conforming to the traditional method of sampling in order to create beats. The traditional method is often seen by as consumers as a necessary element to create "authentic" hip hop music. While ?uestlove obviously believes real hip hop can be made other ways, he acknowledges that sampling is too common for the art to thrive under current copyright law. To show how difficult it is, he provides real examples of the costs of some samples, with the average being $8,000 each. Most hip hop artists that have not broken out yet would not be able to pay such ridiculous fees.The most important thing about this journal is the issue of authenticity. This helps to understand why it is essential for rap artists to have samples instead of just accepting it as a given. Not only does it create a connection to the origins of the musical style, especially when it comes to vinyl records, samples also challenge the idea of musical ownership. This is to say that, hip hop is based on a belief that music ultimately does not belong to anyone, it is for the community to enjoy, and as such should be used by anyone freely. This closely coincides with pushes for the public domain to be expanded. ?uestlove also incorporates anti-copyright messages into his music in order for fans to realize the bleakness of the situation. An example is given where a DJ begins to manipulate beats but is abruptly stopped stating that showing off his talent "would cost too much".
Kersting, Jeffrey F. "Singing a Different Tune: Was the Sixth Circuit Justified in Changing the Protection of Sound Recordings in Bridgeport Music, Inc. v. Dimension Films?" University Of Cincinnati Law Review Vol 74 (2005)
Though Bridgeport v. Dimension has been touched upon, this journal article helps to understand why sampling is outlawed and questions whether the ruling was fair. The author has a clear disapproving view of the Sixth Circuit circumventing law conventions that were already in place such as testing for substantial similarity and considering de minimis. Here, their methodology is key, and is broken up into seven parts.
The first is that the ruling only applies to sound recordings. The second is that it acknowledges that this is a completely brand new test as it found the district court's testing, using substantial similarity and de minimis, inappropriate for the case. Third, it was decreed that originality of the derivative did not matter as long as it could be proven that a copyright existed for a work that was sampled from. Fourth and fifth, all samples would be defined as digital samples and tried as such. Sixth, there is acknowledgement that the popularity of hip hop music and technological innovation has increased the amount of sampling taking place. Seventh, the court believed that this new test would be beneficial for both the courts themselves and for the music industry as a whole. The argument behind this is that they are allowing artists to duplicate sounds independently, but not in arranged way that has already been copyrighted. Their claim is that this still allows for creativity to flourish. Also, the fees for licenses will be kept in check. Last, they feel this is necessary because there is no accidental copyright infringement when it comes to samples.The author believes that this method is flawed because it does not differentiate between different types of copyrighted works and points out loop holes that would allow de minimis and substantial similarity to be used. This would greatly help the hip hop industry in that their specific type of music would no longer be pigeon-holed. This article illuminates the fact that special case law had been created to judge a specific type of music. Even the creators of the legislation mention it. If rap artists and producers were to be judged by the standard that most copyright infringement cases were, it would help them win more cases and would be fairer.
McGraw, Molly. "Sound Sampling Protection and Infringement in Today's Music Industry" Berkeley Technology Law Journal Vol 4 (1988)
This journal article is quite useful because it provides a lot of background for copyright as sampling applies to it. Also, the journal article is old, allowing to help see how copyright law has changed. One key point is that originality is not a prominent factor in determining copyright infringement, but there does have to be a certain amount of "personality". At the same time though, the smaller the effort put in, the greater this "personality" becomes weighted. It also goes on to state that a sample must be a literal copy of an original sound in order be considered copyright infringement. The article references the need for substantial similarity, which is typically an important part for determining infringement. However, in Bridgeport v. Dimension, this need for substantial similarity was bypassed essentially because with all of the technology available to alter samples, it may not be fair to judge them on similarity since they may sound different, but are still stolen.
It also states "Theoretically, the question turns on whether the similarity relates to a substantial portion of the plaintiff's work, not whether the material constitutes a substantial portion of defendant's work. In the typical case, the trier of fact is instructed not to inquire into the value of the allegedly appropriated portion standing alone, but rather into its importance to the effect of the complaining song." This helps to clarify that samples were not originally looked at as stand alone pieces of importance, rather that the original piece as a whole was the most important part. This ties into rap music because while a producer might have been able to get away with taking a sample that alone anyone would think is insignificant, when it is then applied to the original song, it automatically gains more importance and would hurt the producer's chance of using it.
Unamed Author "Grey Tuesday" Tech Law Advisor February 14, 2004 - March 5, 2004
This piece highlights the battle between DJ Danger Mouse and EMI Records for the creation of The Grey Album, a musical work that samples both Jay-Z's The Black Album and The Beatles' The White Album. Capital Records, owners of The Beatles' works issued a statement before the album was released warning DJ Danger Mouse of his copyright infringement of their songs. Even though he had not officially released it, the album had time to circulate. Danger Mouse did not receive the proper permission from Capital Records and agreed to stop distribution of the album, but it had already leaked to too many sources. This caused an infamous day as the hip hop community rebelled against copyright law itself on "Grey Tuesday", where many sites would allow the album to be downloaded and distributed in order to "force reforms to copyright law that can make sampling legal."
This is a notable event because on top of it being a public outcry against copyright law and favoring hip hop sampling, it also provides a scenario where the one that created the infringing product agrees to stop his actions, but the public continues, thus making him liable for their actions. Danger Mouse was asked to identify everyone it had distributed the album to and account for all of units distributed, which is virtually impossible to do. The hip hop community clearly realizes that copyright law regarding sampling of music is hurting the art. Attacking a DJ that created an album which was clearly doing to be an underground project was the last straw. While most of the sources I have used make comments about how certain cases affect the rap industry itself, it is important to consider the fans responses to legislation. If the uproar is consistent and loud enough, then maybe a change will be made to the law.
Young, Gary. "6th Circuit Clamps Down On Sampling" The National Law Journal September 30, 2004
This article references Bridgeport v. Dimension Films, but has some particular feelings about how this law works, particularly focusing on the death of hip hop. One of the representatives for DJ Jazzy Jeff, a popular rapper in the 80s that was usually alongside Will Smith, believes that this legislation alone is enough to kill the art of hip hop. Even a member of the Recording Industry Association of America, RIAA, which one would think would support most copyright legislation believes it is a bad idea that will do more harm than good. The article also brings up a good point in that there could be retroactive liability created for people that were previously judged under the former method. In addition, another valid point is given in that licensing of samples has become so common that the problem may be overstated. Though this may be true for the recording industry as a whole, when applied specifically to hip hop, this argument holds less weight due to the fact that there is a heavy amount of unlicensed samples present on a majority of mixtapes.This article is important to consider because it is one of the few that actually shows that there is not only a backlash from artists themselves but from prominent figures in the industry such as the RIAA. The RIAA has been notorious in the last decade for cracking down on file sharing in order to curb the loss of profits that arise when people download instead of purchase music. With the RIAA having such a firm stance on public, one could assume that they would also back one that limits artists from illegal activity, but they do not. It is also worthwhile to note that DJ Jazzy Jeff was the artist that was referenced in the article. Jazzy Jeff has been relatively dormant on the hip hop scene for quite some time. This could be because as a DJ, he is no longer allowed the amount of leeway and freedom that allowed him to create hit songs in the 80s. New legislation effectively hinders re-entry into the market for artists like DJ Jazzy Jeff.
Wu, Tim. "Jay-Z Versus the Sample Troll" Slate November 16, 2006
In order to show that sampling lawsuits in rap music still exist, this article condemns Bridgeport Music for suing Jay-Z over sampling some notes from a Madonna song. This article references many of the others I have because Bridgeport has become notorious for capitalizing on the fact that they go after anyone who samples from any of the songs they own no matter how minimal and insignificant the sampling is. In fact, "Bridgeport launched nearly 500 counts of copyright infringement against more than 800 artists and labels." Bridgeport is also going after dead artists like Notorious B.I.G. and was able to recently cash in on his album Ready to Die, which is over a decade old, due to the illegal sampling that was on it. This is a direct result of hip hop booming within the last decade, which is sad because they are able to capitalize off an industry norm. This article shows the depth to which Bridgeport Music has gone in order to obtain more money, and with this many cases, is instrumental in the possible demise of rap music.
This article also brings up an interesting point of view in that, up until now I have written about Bridgeport being a money-grubbing corporation, but it could also be construed that its doing older artists justice by giving them their due off from today's popular songs. Though they might get some recognition from the lawsuits, Bridgeport ultimately keeps all of the money, so older artists don't really receive what they should. It also brings up a good point in that, thanks to Bridgeport's case against Dimension, many popular albums of the past would not be able to be created today, such as Public Enemy's, It Takes a Nation of Millions to Hold Us Back. This supports the theory that as copyright law regarding sample continues, more and more restrictions are placed on rap artists.