a slippery slope

The US Court of Appeals for the Sixth Circuit ruled that sampling was in violation of copyright law - "Get a license or do not sample."

If sampling is illegal, what about other comparable uses of copyrighted materials? Does the five words above -in violation of copyright law- without citations constitute copyright infringement? Is the documentary film "Super Size Me" totally illegal since the director did not have McDonald's written permission to feature them in the film?

"Get a license or do not sample" is a dangerous tipping point on a slippery slop. Such a court decision invites a flood of new cases that challenge accepted standards in the fair use clause.

We live in a world infused with copyrighted works. What kind of a society would it be if we were not allowed to take pictures with any copyrighted logos in the background without first getting a license? Should street performers in NYC be required to get licenses before singing in the subways? This could be the death of parodies, too! Where would it end? What are the boundaries?

I leave you with some word from the Chief Judge in the US Court of Appeals for the Ninth Circuit, Alex Kozinski:



“Overprotecting intellectual property is as harmful as underprotecting it. Culture is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it’s supposed to nurture.”


* Dissenting in the White v. Samsung Elec. Am., Inc., 989 F.2d 1512 (9th Cir. 1993) ruling.

Bridgeport Music, Inc. v. Dimension Films- the final take

Dimension Films et al did not fare so well in appellate court- the decision reached in the district court was reversed and appellate Judge Ralph B. Guy held that Bridgeport's copyright was infringed. The court's basic argument was that with a sound recording, the owner of the copyright of that recording possesses sole right to duplicate the work and no third parties could do so without acquiring permission. Guy, in his opinion, bluntly stated: 

"Get a license or do not sample"

The court struck down the district judge's decision by proving that all three elements of a prima facie copyright infringement had been met. First, the valid ownership of the copyright was established, as Bridgeport Music clearly owned the copyright for Funkadelic's music. Second, the actual copying of Funkadelic's tune was assumed because the sampling was not disputed- rather Dimension never denied that sampling occurred, as they had citied a de minimis defense.  The final element of a prima facie copyright infringement, proof of improper appropriation, which is usually measured by considering the similarity with the original work or by a de minimis requirement (was enough sampled that the original could be recognized by the sample), was not required due to the statutory effect of 17 U.S.C section 114(b).

"17 U.S.C. section 114(b) The exclusive right of the owner of copyright in a sound recording under clause (1) of section 106 is limited to the right to duplicate the sound recording in the form of phonorecords or copies that directly or indirectly recapture the actual sounds fixed in the recording. The exclusive right of the owner of copyright in a sound recording under clause (2) of section 106 is limited to the right to prepare a derivative work in which the actual sounds fixed in the sound recording are rearranged, remixed, or otherwise altered in sequence or quality. The exclusive rights of the owner of copyright in a sound recording under clauses (1) and (2) of section 106 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. The exclusive rights of the owner of copyright in a sound recording under clauses (1), (2), and (3) of section 106 do not apply to sound recordings included in educational television and radio programs (as defined in section 397 of title 47) distributed or transmitted by or through public broadcasting entities (as defined by section 118(g)): Provided,That copies or phonorecords of said programs are not commercially distributed by or through public broadcasting entities to the general public." 

In other words, under 17 U.S.C. section 114(b), if the copyright holder can prove that any portion of the protected sound recording was sampled, the fact that the new song is very different from the original or that the amount of the original song that was sampled, no matter how insignificant, become irrelevant. 

This decision is very significant for two reasons. First, the de minimis doctrine, when applied to the sampling of copyrighted music, is rendered irrelevant and can no longer be used as an adequate defense. Second, the court established a 'bright-line test' for any future cases involving the sampling of copyrighted music, saying that any unliscenced sampling, not matter how minute, would be considered a copyright infringement. In law, a bright-line test is a clearly defined rule that is made up of objective factors, and leaves little room for interpretation. 

The overall legal signficance of the appellate court's reversal in the Bridgeport Music, Inc. V. Dimension Films case is that it essentially redefined copyright law for recorded music, at least in regards to sampling, in the United States.

Sources:

http://www.copyright.gov/title17/92chap1.html#114

http://www.law.cornell.edu/uscode/17/usc_sec_17_00000114----000-.html

http://cip.law.ucla.edu/cases/case_bridgeportmusicstillnthewaterpublishing.html

http://law.marquette.edu/cgi-bin/site.pl?2130&pageID=1984

http://www.law.indiana.edu/ilj/volumes/v81/no1/22_Mueller.pdf

Bridgeport Music, Inc. v. Dimension Films- the first take

Bridgeport Music, Inc. v. Dimension Films is a very significant case in the field of copyright law for recorded music. Focusing on the relationship between the digital sampling of copyrighted music and copyright infringement, this case centers on two different songs: Hip Hop group N.W.A.'s "1000 miles and Runnin" and Funkadelic's "Get Off Your Ass and Jam." N.W.A. sampled a two-second guitar chord from Funkadelic's song, lowered the pitch of that chord, and used the sample five times in their "1000 miles and Runnin." Bridgeport Music, Inc., which owns the copyright to Funkadelic's music, had not given N.W.A. permission to sample the tune, and since no compensation was paid to Bridgeport, they filed charges and brought the issue to district court.

This case can be viewed in essentially two parts-the case was first heard in district court, and following that decision, an appeal was made and the case was revisited in appellate court. The district court case will be examined in this post.

In response to charges of copyright infringement, the defense did not deny that their song contained the alleged infringing sample- rather they claimed the copying was 'de minimis' and as a result, not legally significant.In reference to this case, de minimis refers to the defense that the alleged copyright infringer sampled such a small part of the tune that it is insignificant.

Ralph B. Guy, circuit Judge who gave the opinion in the appellate court, reflected on the district court's view of the defense:

"In granting summary judgment to defendant, the district court looked to general de minimis principles and emphasized the paucity of case law on the issue of whether digital sampling amounts to copyright infringement. Drawing on both the quantitative/qualitative and "fragmented literal similarity" approaches, the district court found the de minimis analysis was a derivation of the substantial similarity element when a defendant claims that the literal copying of a small and insignificant portion of the copyrighted work should be allowed."

Citing de minimis, along with the facts that the sampled song sounded entirely different from the original and the qualitative differences between the songs were so great, the district court dismissed Bridgeport's claim of copyright infringement on September, 7 2004.

The ruling of the district court doesn’t hold significant legal ramifications as the judge was merely following precedent by citing de minimis. The real significance of this case arises from the appellate court’s decision, which came after Bridgeport appealed the decision of the district court. 

Sources:

http://cip.law.ucla.edu/cases/case_bridgeportmusicstillnthewaterpublishing.html

http://law.marquette.edu/cgi-bin/site.pl?2130&pageID=1984