“From Mozart to Hip-Hop” discusses the impact of the Bridgeport v. Dimension Films case on the future of digital sampling. The stance in this piece is particularly negative. The author believes that the outcome of this case threatens musical progress and creativity. She compares current sampling in hip-hop to the musical borrowing practices of Bach, Mozart, and Beethoven. It’s difficult to view sampling as negative when viewed this way if, as stated, it would’ve made some of music’s most famous works impossible. “Mozart to Hip-Hop” argues that the Bridgeport case contradicts the purpose of copyright law, overlooks creative value in sampling, will inhibit the development of new works, and doesn’t take into account the importance of sampling in hip-hop aesthetic. It further stands that the best way to evaluate sampling cases is through de minimis and substantial similarity.
While all of this adds value to my project, I was particularly drawn to the argument that substantial similarity analysis should be the requirement for copyright infringement. What should be important is whether an ordinary listener, without being directly told what to look for, could clearly recognize the appropriation. The “bright-line test” should be irrelevant if the heart or signature sound of the original work isn’t sampled. This substantial similarity law could be the best paradigm in evaluating sampling—it balances copyright protection by promoting artistic development while still fostering the creation of new works since de minimis sampling holds such a negligible potential harm to original artists.
This perspective on de minimis and the Bridgeport case is of great relevance to my creative project. In one of my songs I have samples that I believe aren’t of substantial nature. I am usually pro-copyright and pro-music industry, and while this hasn’t drastically changed, the author’s points and arguments definitely have some legitimate ideas. I can definitely employ this point of view on de minimis when assessing the copyright implications of my music.
tagged bridgeport de_minimis sampling by mbandier ...on 01-DEC-08
This journal article opens with a hypothetical: The main gist is that you are a successful businessman who one day comes to the office to find a first-year employee sitting at your computer. He is lifting exact portions of your work to incorporate into his own. He argues that because he is new, he should be entitled to borrow and quote your work, even if his final work seems to have your “signature style.”
You would never tolerate this, correct? It would be considered breaking and entering and intellectual property infringement. So why, then, should the music industry tolerate this rampant behavior that occurs through digital sampling?
The author points to the Bridgeport Music court case as what finally stood up for the talents and creative ideas of artists who work to attain their right “signature sound”—the sound that makes them top-selling acts. This piece is written in full support of the Bridgeport decision, with the perspective that the unethical and unlawful use of prior work amounts to copyright infringement. It covers the history of sampling technology, the response of the courts and the music industry to sampling, an analysis on the debate of whether sampling is “art” or “theft,” and lastly, a proposed solution to foster creativity while protecting against unauthorized sampling.
While all of these categories have relevance to my project, I was primarily drawn to the section on sampling as “art” vs. “theft.” In this, three myths are addressed and debunked: one, that sampling is analogous to “borrowing” work owned by others; two, that sampling is an art form and, therefore, samplers should be entitled to freely use copyrighted material; and three, that for a proper balance in copyright law, more protection should be granted to samplers. Every “myth” offers a variety of arguments presented by “free digital sampling” advocates. Each, however, is followed by a critical, thought provoking, and analytical assessment that fully shoots down any point in support of free sampling.
Most sources that focus on sampling and its relation to copyright law seem to draw criticism on the Bridgeport decision and subsequent infringement cases. It was really helpful to have an article that fully supported Bridgeport and the notion that all digital sampling, regardless of length or clarity, needs copyright clearance. Any form of reasoning I could come up with to defend the songs I created was covered—and each was fully and thoughtfully undermined. This adds a particularly interesting aspect and perspective to my project, my songs, and their copyright implication.
Bridgeport Music v. Dimension Films is a court case that has had a major impact on the music industry, specifically with regards to the future of digital sampling. The case revolves around the use of a sample from the song “Get Off Your Ass and Jam” by George Clinton and the Funkadelics, whose copyright is held by Bridgeport. The sample in question comes from a three-note, four-second guitar riff in “Get Off.” N.W.A.’s song, “100 Miles and Runnin’,” takes two seconds from this snippet, lowers the pitch, and loops it to extend 16 beats. This song was then included on the soundtrack for a Dimension Film’s movie, I Got the Hook Up, which Bridgeport Music then claimed to infringe on its copyright. In a district court, Dimenion Films won on grounds that the alleged infringement was de minimis, and hence not actionable. When brought before a federal court, however, the decision was reversed.
The court used the points on derivative work from Sections 106 and 114 of the US Copyright Law as reference for their decision. Because a sound copyright holder has the right to authorize the rearrangement, remix, and alteration of its recording, the copyright owner also then has the exclusive right to “sample” its recording. From this it was made clear: the judge announced, “Get a license or do not sample.” Grand Upright Music v. Warner Bros case sided with copyright holders to an extent; but, after this interpretation, even the de minimis defense became null. The decision supports that the usage of any section of copyrighted work, regardless of length or clarity, needs clearance. The court analyzed that even when something small is taken from a sound recording, what was taken is still something of value. Further, the copyright holder of a sound recording doesn’t just own the “song,” but rather owns all of the fixed sounds in that recording.
The case had a monumental impact on music, copyright, and sampling. There now exists a “bright-line test,” where any sampling is infringement. This affects any producer or artist who wants to sample music in a song from here on out. Lengthy and costly negotiation and litigation will be necessary to sample, even just to take a two-second snippet. In my project I have two songs with samples. In one I rearrange a hefty portion of the original recording, which would have qualified as infringement after the Grand Upright v. Warner Brothers case. But in the second one, I sample a song while altering it so much that the source is unrecognizable. With the Bridgeport decision, though, there now stands a heavy consequence on my song and the type of sampling that I employed.
“15 Megabytes of Fame” explores the rise of the new genre called “mash-ups.” This comment covers the definition and historical background of mash-ups, an analysis of mash-ups in comparison to traditional digital sampling and appropriation art, a discussion on the simple discrediting of mash-ups, and lastly an analysis of mash-ups under fair use precedents. In particular, the Bridgeport Music court decision is used to assess the standing of mash-ups and what the decision means for the genre’s future. While, as a producer of mash-ups, I have a clear understanding of what mash-ups entail, it was nice to get a standard definition by legal review. More importantly, as a producer, I would potentially call upon fair use, the Bridgeport case, and my differentiation from appropriation art to help defend and support my music. At the same time, counter points are addressed, which only help my project by examining every perspective on mash-ups.
This piece defines mash-ups as distinct derivatives of sampling. Instead of incorporating a sample into a new work, mash-ups usually consist of two preexisting recordings. The remixer, in the most common cases, lays the vocal track from one song on top of the instrumental of another. This amalgamation leads to a unique song. A key element to a mash-up is the easy and immediate recognition of the prior recordings.
It is pointed out that in the Bridgeport case, the court stated that samples are used solely to “1) save costs, or 2) add something to the new recording, or 3) both” (pg. 4). This rests only on the economic aspects of sampling—the artistic value isn’t counted. Mash-ups sample out of necessity; they don’t attempt to hide prior recordings nor attempt to claim ownership. Mash-ups are created in a manner as to require listeners to immediately recognize appropriated works; the creator never intends to portray any notion of “new” originality.
Sound copyrights are protected in terms of its fixed medium, originality, and expression. A copyright owner must approve all derivative works that rearrange or remix. Mash-ups, therefore, should fall as infringing under all of these counts. The only way, it is argued, to defend mash-ups is through fair use. This piece explains how if the transformative nature of mash-ups comments, criticizes, or parodies the underlying work, fair use can be successfully employed to defend them.
All of these points, as aforementioned, have relevance to my project, adding value and different points of view.
“Digital Sampling and the Legal Implications” focuses on digital sampling, its impact on music, the effects that will occur for artists and the music business if the Bridgeport case isn’t reexamined, and finally, possible solutions and alternatives for dealing with the sampling dilemma. The paper has a strict perspective that sampling holds a positive impact on music, and that the Bridgeport decision has the capability to extremely hinder creative output. What I was particularly drawn to were the suggested solutions to seemingly never-ending debates over sampling and its copyright implications.
The three main options mentioned and explored are the creation of a subgenre in fair use to cover digital sampling, a compulsory licensing system, and lastly, a combination of the two. For the subgenre in fair use, the key component would be to determine the purpose, character, and use of the sample, and its effect on the original work’s market. If the underlying work was altered enough or so minimal that it was unrecognizable, the sampled artist or copyright holder shouldn’t and wouldn’t be injured. A compulsory licensing system would make copyright owners compelled to allow samples of their songs. In return, they would receive payment from all of the uses of the new work at a predetermined rate.
A combination of the two would look something like this: A fee would be paid to obtain “temporary” rights to use the sample. The new work would then be analyzed under the proposed new sampling subgenre of fair use. This would determine whether the sample was substantial enough to be recognized or have an effect on the original copyrighted recording. If it didn’t fall under fair use, then a new fee would be assessed in terms of length, prominence, and importance of the sample. An official authority would be put in position to help mediate this last negotiating step.
This is a really creative and intelligent way of looking at possible solutions to the legal issues regarding sampling, infringement, and payment. I think the combination of compulsory license and fair use could have a dramatically positive effect on artistic creativity and output, as well as on the chronic litigation that plagues music companies. This is relevant to my project because if this type of system were instated, it would drastically change the copyright implications of my songs and how they were greeted and treated. I could potentially release these songs at a much lower time and financial cost; but more important, I would be releasing them legally.
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.
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.