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Commentary

Trashing the Copyright Balance

By Marjorie Heins

Copyright law is a tricky balancing act. So it's understandable that a federal appeals court recently threw up its hands, refused to balance the rights of copyright owners against those of innovative rap musicians and their audiences, and flatly announced that sampling even one note from a previous musical recording would automatically be a copyright infringement.

The case involved a two-second guitar chord from the rap song "Get Off Your Ass and Jam," modified to lower the pitch, then "looped" to appear five times in the song "100 Miles and Runnin," which was later used in the soundtrack of a movie. A typical enough incidence of sampling, which is after all a basic component of hip-hop music.

In a lawsuit brought by Bridgeport Music and other owners of "Get Off Your Ass," a federal judge found the borrowing of this one chord to be "de minimis" and therefore not a violation of copyright law. But two weeks ago, the U.S. Court of Appeals for the Sixth Circuit reversed that decision. It did so by interpreting the section of the copyright law that applies to sound recordings to impose liability even if only one note of a previous recording is borrowed.1 That makes things simple for the music industry, but it also chills a lot of artistic expression, and it's profoundly wrong as a matter of copyright principles.

Borrowing and copying didn't originate with rap music; they are time-honored practices in all the creative arts. Justice Joseph Story wrote over a century ago: "Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before."2 From classical music to jazz and rock 'n roll, Impressionism to surrealist collage and pop art, "appropriation" is a standard building block of creativity.

Copyright law acknowledges the importance of creative copying in two primary ways: the "fair use" doctrine, and the concept of "de minimis" borrowing. Although fair use was recognized early on as an important factor in determining the legality of sampling, courts have more frequently looked to the "de minimis" defense. Where so little is taken that the new work wouldn't reasonably be thought to undermine the value of the original, then the borrowing is "de minimis," and not a violation of copyright.

The "de minimis" rule serves the purpose of copyright law in balancing the rights of owners and borrowers. As the lower court explained in the Bridgeport Music case:

The Court recognizes that the fact of blatant copying is not challenged by the defendant , and that the purpose of the copyright laws is to deter wholesale plagiarism of prior works. However, a balance must be struck between protecting an artist's interests, and depriving other artists of the building blocks of future works. Since the advent of Western music, musicians have freely borrowed themes and ideas from other musicians.3

The court of appeals' decision to reject this balancing approach is understandable. Balancing is difficult, and in copyright law, there are few "bright lines," so one never knows for sure whether one's copying will in fact turn out to be de minimis, fair use, or otherwise legitimate. Anyway, the industry already has a system in place that takes care of the logistics of getting permissions for musical samples, so why not require everyone to use it?

The problem with this is that it ignores the critical pivot on which copyright law is built - the balance between monopoly control and free expression. Not all good music today is created in entertainment industry studios. Independent artists, artists who can't afford fees, and rebels who just don't want to get permission for every chord or riff they copy, are silenced in a system that ignores their free-speech rights.

In addition, requiring permission - in the absence of a legal mandate of compulsory licensing - means that copyright owners can censor, denying permission to anyone whose musical message they dislike. This was exactly the situation 15 years ago when the owners of Roy Orbison's classic "Oh Pretty Woman" denied permission to a raunchy rap group named Two Live Crew to record their irreverent version of the song. The Supreme Court ruled that Two Live Crew probably didn't need permission, because their vulgar version was a parody - a "transformative" use - of the "whitebread" original.4

Parody is one common form of fair use under copyright law - others being scholarship, criticism, news reporting, and even wholesale copying of TV programs onto videotape for viewing at a later time. Oddly, the Sixth Circuit in the Bridgeport case never even mentioned fair use. The judges may have mistakenly thought that without the element of parody, as in the Two Live Crew case, there is no fair use defense to copyright infringement, even when the use that's made of the copyright-protected music is transformative, as it almost always is with hip-hop, because the samples are, by definition, woven into a new work.

Essentially, fair use is simply a question (in the words of one venerable judge) of whether copying "has been done to an unfair extent."5 Some of the factors that go into the analysis are: how much material is copied; whether it is the most important or essential part of the original work; whether the use is transformative; and the effect on the market for the original work - but not including the possible dampening of demand because of a critical review or a wicked parody.

Fair use is especially important in enriching our culture because it encourages new works. As the Supreme Court has said: "The immediate effect of our copyright law is to secure a fair return for an 'author's' creative labor. But the ultimate aim, by this incentive, is to stimulate artistic creativity for the general public good."6 The Bridgeport decision sadly ignores this basic principle in its effort to stamp out sampling that's not approved by copyright owners. Hopefully, the losing lawyers will ask for rehearing, or for Supreme Court review.

September 21, 2004

Update: On December 20, 2004, the Sixth Circuit Court of Appeals granted a petition for rehearing in this case. At the same time, the court amended its opinion to indicate that it did not mean to eliminate the fair use defense in sound recording cases - only to eliminate the de minimis rule. The Recording Industry Association of America had filed a brief in support of rehearing, arguing that the court's interpretation of the law was "novel and unsustainable."7

On June 3, 2005, the same three judges who wrote the first decision issued their new decision on rehearing. It was essentially the same as the original decision and ignored the arguments of both the defendant, No Limit Films, and of the Brennan Center and the Electronic Frontier Foundation, which filed a friend-of-the-court brief. See "Appeals Court Reaffirms Its Tone-Deaf Approach to Music Sampling."

NOTES

1. Bridgeport Music, Inc. v. Dimension Films, 2004 U.S. LEXIS 18810 (6th Cir. Sept. 7, 2004).

2. Emerson v. Davies, 8 F. Cas. 615, 619 (No. 4,436) (C.C.D. Mass. 1845).

3. Bridgeport Music, Inc. v. Dimension Films, 230 F. Supp. 2d 830, 842 (M.D. Tenn. 2002).

4. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994). On fair use, see also "The Progress of Science and Useful Arts": Why Copyright Today Threatens Intellectual Freedom.

5. Judge Learned Hand in West Publishing Co. v. Edward Thompson Co., 169 F. 833, 861 (E.D.N.Y. 1909).

6. Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975).

7. Amicus Recording Industry Association of America's Brief in Support of Petition for Rehearing, Bridgeport Music v. No Limit Films, No. 02-6521 (Sept. 21, 2004), p. 1.


The Free Expression Policy Project began in 2000 to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. The FEPP website is now hosted by the National Coalition Against Censorship. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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