CHEAT SHEET ■■The ■ law of the (US) land. The 2005 Sixth Circuit court ■■Tune ■ of the future. While the VMG decision has largely taken away decision Bridgeport Music, Inc. v. Dimension Films imposed a musician’s ability to copyright minimal portions of their music, strict clearance requirements by enforcing a copyright the liability associated with a sampling infringement is sufficient holder’s claim to even the smallest portion of music. enough to deter another musician from using the material illegally. ■■Trivial ■ sampling. The 2016 Ninth Circuit ruling VMG Salsoul, ■■Appropriation ■ art. The Fair Use Doctrine’s four-part test LLC v. Ciccone disagreed with the aforementioned Bridgeport serves to define copyright infringement in the music industry decision, holding that the trivial sampling of copyrighted material by balancing the rights of the copyright holder with the is not actionable if the original material cannot be recognized. rights of the musician wanting to sample their music. Music Sampling: Has The Tune Changed? By Christian Palmieri and Monica B. Richman Imagine that your company wants to use “just a little bit” of that new hot song to introduce your CEO as he or she stands up to present to your company. Or maybe you want to do a mash up (sample) of music for your company website. Do you need a license? Maybe — but maybe not. Read on.

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Legal history of music sampling artist and the potential sales of the Remember, far from the recording The late 1980s and early 1990s was new song, licensing a sample might studio, your internal clients could be the golden age of “music sampling,” involve not only upfront payments, “borrowing” as little as a few seconds as artists freely repurposed small por- but also the relinquishment of a of music, for which you could be liable. tions of existing works either without certain percentage of the song’s pub- Much like the importance of clearing permission or under a relatively af- lishing rights to the sampled artist. rights for the use of photography and fordable licensing process. A number Ironically, the Bridgeport court deci- images in publishing and e-commerce, of sample-heavy classics emerged from sion — which famously declared “Get sample clearance — and indeed, clear- this period: A Tribe Called Quest, a license or do not sample”— rea- ing rights for any use of copyrighted The Low End Theory; De La Soul, 3 soned that its ruling would simplify music for a commercial purpose — is a Feet High and Rising; N.W.A., Straight the negotiation process and lower the necessary task that reduces the risk of Outta Compton, and Beastie Boys, cost of clearing samples. The effect, infringement. Or, perhaps, the world Paul’s Boutique. The latter album re- however, has been just the opposite. has changed and not every use requires portedly contains at least 125 samples “Caught, now in court cause I stole a license? The Ninth Circuit recently that resulted in around US$250,000 a beat / This is a sampling sport / But played a new melody, which may have in clearance costs (two law profes- I’m giving it a new name / What you changed the rules for sampling of sors estimated that if Paul’s Boutique hear is mine.” In “Caught, Can We music and for the copyright fair use were released in modern day sampling Get a Witness?” from the 1988 classic analysis generally. environment, the record label would album It Takes a Nation of Millions to lose US$20 million dollars if the record Hold Us Back, the rap group Public A new player in the orchestra: sold the same 2.5 million units. They Enemy made its opinion known about The Ninth Circuit also estimated that Public Enemy’s sampling. Once the group’s inimitable Until recently, the Sixth Circuit’s classic platinum record Fear of a Black production team, The Bomb Squad Bridgeport decision was the only Planet would lose US$5 million. would create a beat by borrowing from circuit court ruling on whether the “de Things changed, however, in 1991 an existing work and looping it into a minimis” defense applies to the unau- after the first digital sampling dispute mosaic of sound and lyrics. The final thorized sampling of sound record- went to court. In Grand Upright product is their own original work. ings. Bridgeport held that it did not Music Ltd. v. Warner Bros. Records, Many copyright holders and judges, apply and that once a sound is fixed by 780 F.Supp. 182 (S.D.N.Y. 1991), the however, would beg to differ. the copyright holder, no one else has district court granted a preliminary Sampling involves the incorporation the right to take even a portion of it injunction against rapper Biz Markie, of short segments of existing sound without permission. This all changed who sampled a pop song without recordings into new works. More than in June 2016 when the Ninth Circuit permission. In an industry rife with just a sonic choice that gets layered issued a landmark ruling in VMG examples of new artists “borrowing” into the beat, a sample can be many Salsoul, LLC v. Ciccone, 824 F. 3d 871 from other artist’s exiting works, the things: a political comment, a startling (9th Cir. 2016) (VMG) that repudiated decision did not cite any precedent juxtaposition (e.g., a show tune in a Bridgeport and produced a circuit split. for its ruling or otherwise delve into hip-hop song), a nod to one’s musical In VMG, the court affirmed the lower further copyright issues. The court influences, a vintage sound or musical court’s grant of summary judgment to simply equated sampling with stealing texture that is impossible to recreate the pop icon Madonna, as well as the (the opinion opened with the phrase digitally, or proof of one’s ability to go producer and record company behind “Thou shalt not steal”), and the tone “crate-digging” for obscure LPs. the hit song “Vogue,” holding that the of the opinion reflected the reticence by some to embrace rap as an emerg- ing music culture. The ruling, along  Christian Palmieri is IP counsel at A+E Networks, an entertainment content provider. He provides with the much-debated decision in counsel on global IP and information technology matters, as well as related digital, gaming, and Bridgeport Music, Inc. v. Dimension consumer products platforms, and manages a worldwide trademark portfolio. Films, 410 F.3d 792 (6th Cir. 2005), [email protected] cemented the modern “clearance cul- ture,” in which widespread sampling Monica B. Richman is a partner at Dentons. She has created a leading practice as IP counsel to faded away due to heightened scru- clients in entertainment, fashion, and financial services. Her specialties include licensing, tiny. As a result, the cost of licensing commercial contracts, and IP development, protection, and management. vastly increased. Depending on the [email protected]

54 ASSOCIATION OF CORPORATE COUNSEL de minimis exception did indeed apply to actions alleging infringement of a A quick music licensing recap copyright to sound recordings. The de- cision further asserted that Madonna’s Every recorded song has two separate copyrightable parts: a copyright in sampling of a modified .23 second seg- the musical composition (i.e., the written music and any accompanying lyrics) and in the sound recording (i.e., the fixed sounds that make up the ment of horns from an earlier song by recording, often called a master). Each exclusive right — reproduction, disco group Salsoul Orchestra for use distribution, digital transmission, public performance, public display, and in “Vogue” was de minimis copying derivative works — can be licensed by the copyright holder to third parties. and did not constitute infringement. In VMG, the plaintiff alleged that THE VARIOUS LICENSES INCLUDE: the producer of Madonna’s hit song ■■ Mechanical license: The right to reproduce for private listening “Vogue” copied a .23 second horn hit (e.g., MP3s, mobile ringtones, interactive streaming). from an earlier song, “Love Break,” ■■ Compulsory license: The right to reproduce and release a and modified it before inserting it “cover” recording of a composition, as long as the new version into “Vogue,” thereby violating the does not change the basic melody or “fundamental character” plaintiff’s copyrights. The sample was of the work. Compulsory license rates are set by statute. ■■ Digital transmission license: Webcasters of non-interactive a modified .23 second “single” horn hit streams remit digital performance royalties to sound recording that consisted of a quarter-note chord copyright holders as per a statutory rate to SoundExchange. comprised of four notes — E-flat, A, ■■ Synchronization license: The right to use music with a video or in a movie. D, and F — in the key of B-flat and a ■■ Public performance: Copyright holders in sound recordings only have “double” horn hit that consisted of an a public performance right by means of a digital transmission (e.g., eighth-note chord of those same notes, webcasting), but copyright holders in music compositions maintain followed immediately by a quarter- a public performance right typically administered by the various note chord of the same notes. As with performance rights associations (e.g, ASCAP, BMI, SESAC). the original song, other instruments are playing at the same time that the horn hit appears. The lower court ruled actionable, the use must be significant the infringement claim on the musical that even if the plaintiff proved actual enough to constitute infringement, composition, the court found that the copying, the claim would fail because reflecting the longstanding principle defendants copied, at most, a quarter- the alleged copying was trivial. The dis- that trivial copying is not actionable. note single horn hit and a full measure trict court granted summary judgment As such, under the principle, a sample containing rests and a double horn hit to the defendants, and provided an is de minimis only if the average from “Love Break” and held that a rea- award of attorney’s fees. audience would not recognize the ap- sonable jury could not conclude that propriation. In this case, the decision an average audience would recognize Ninth Circuit found de minimis use would depend on whether a member the appropriation of the “Love Break” The Ninth Circuit panel, in a two to of the general audience would recog- composition. The court noted that the one decision, affirmed and ruled that nize that the sampling of “Love Break” snippets of the “Love Break” composi- any copying was “de minimis” and had occurred. Ultimately, the panel tion that were sampled were smaller was not an infringement of either the agreed with the district court that, as than the sample at issue in Newton v. composition or the sound record- a matter of law, a general audience Diamond, which involved a six-second ing of “Love Break.” The panel held would not recognize the brief snippet sample of a flute passage. Moreover, that the de minimis exception applies in “Vogue” as originating from “Love the sampling from “Love Break” at to infringement actions concerning Break.” If your company uses a small issue in “Vogue” involved only one copyrighted sound recordings, as sample of recorded music, this deci- instrument group out of many. with all other copyright infringement sion gives some flexibility and perhaps As to the claim of infringement of actions. See e.g., Newton v. Diamond, a better argument for whether such the “Love Break” sound recording, the 388 F.3d 1189 (9th Cir. 2004) (de use is fair use. court framed the argument by stat- minimis exception applies to claims of In reaching that conclusion, the ing that when considering a claimed infringement of a copyrighted musical court addressed the de minimis de- infringement of a copyrighted sound composition). Under the substantial fense to infringement claims relating recording, what matters is how the similarity test, for an unauthor- to both the existing sound recording musician’s rendition distinguishes the ized use of a copyrighted work to be and its underlying composition. As to recording from a generic rendition of

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Circuit held that the copyright statute rule because it is well-reasoned and Licensing dictated a broader scope of protection persuasive (particularly as Congress considerations for for sound recordings than musical failed to clarify or change the law in live events compositions or other types of copy- the wake of the ruling), and the major- rightable work. ity’s “fuzzy approach” would require If you want to play recorded The Ninth Circuit disclaimed a factual inquiry into whether each music at a live event, you Bridgeport and stated that nothing instance of sampling was “substantial” only need composition rights. in the statutory definition of “sound enough to make a claim. Echoing the Most large businesses that use recordings” suggests that Congress Sixth Circuit’s reasoning, the dissent music frequently obtain an annual “blanket” license to play intended to eliminate the de minimis argued that the Copyright Act grants background music each year. exception for sound recordings or treat sound recording holders with the Companies should not expect them differently than other protected exclusive right to sample or create de- DJs or other performers to obtain media, such as literary works. In the rivative works from their own record- licenses, as contracts typically end, the court concluded: “Because we ings and others can pay for a license shift the burden to the event conclude that Congress intended to or hire their own musicians to record holder. The license fee will depend maintain the “de minimis” exception a good imitation. See generally Griffin upon the facts of the use, and for copyrights to sound recordings, v. J-Records, 398 F. Supp. 2d 1137 (E.D. there are some limited exceptions we take the unusual step of creat- Wash. 2005) (finding no copyright when a fee is not required. ing a circuit split by disagreeing with infringement when the actual sound the Sixth Circuit’s contrary hold- recording of the plaintiff was not used). ing in Bridgeport.” However VMG is the same song. In “Vogue,” the horn not as radical as it may appear, since The result hit from “Love Break” was not copied major copyright treatises have gener- Digital rights advocates have ap- exactly, but was modified to a different ally criticized Bridgeport and almost plauded the VMG ruling as a check key and “cleaned up” by filtering out every district court outside the circuit on the “copyright maximalism” that certain instruments to make it punchi- has declined to follow it. See, e.g., they say has curbed free expression in er. The court concluded that an average Saregama India Ltd. v. Mosley, 687 many creative areas, including hip-hop audience member would not recognize F.Supp. 2d 1325, 1339 (S.D. Fla. 2009) and electronic dance music, where the appropriation of the horn hit from (rejecting Bridgeport’s rule in a dispute sampling can be too costly for many “Love Break,” because, among other involving a one-second vocal snip- acts and can only be used liberally by reasons, the horn hits are short, occur pet that was sampled; “The Eleventh the top musicians at big labels. Indeed, only a few times in “Vogue,” and do Circuit imposes a “substantial similar- some artists use sampling as a badge of not sound identical to the horn hits ity” requirement as a constituent ele- conspicuous consumption. Kanye West from the original song. In the end, the ment of all infringement claims.” and Jay-Z’s 2011 “Otis,” for example, court stated that it would be “hard to sampled heavily from soul legend Otis imagine” that a listener would recog- Ninth Circuit dissent Redding and whose popular video nize that sampling had occurred. In dissent, Judge Silverman stated he featured the duo dismantling and then would have followed the Bridgeport “tricking out” a US$350,000 Maybach Ninth Circuit rejected Sixth Circuit approach The plaintiff’s remaining argument, Side note: Another potential risk of sampling is not knowing the identity of the copyright resting on the Sixth Circuit’s contro- owner of the composition, such that the true copyright holder brings suit years versial decision in Bridgeport Music, after the release of the work. A recent case illustrates this point. In Urbont v. Sony Inc. v. Dimension Films, 410 F.3d 792 Music Entertainment, No. 15-1778 (2d Cir. July 29, 2016), a songwriter brought a (6th Cir. 2005), also fell flat. The plain- copyright infringement suit against hip hop artist Ghostface Killah and his label for tiff contended that even if the copying sampling of the 1960s Iron Man TV show theme song for his 2000 album Supreme Clientele. The lower court dismissed the complaint, ruling that the plaintiff failed was de minimis, it was irrelevant since to rebut the presumption that Marvel Comics owned the copyright based upon the the Sixth Circuit had already decided Work For Hire Doctrine. However, the Second Circuit reversed the decision, finding the issue: for copyrighted sound re- that the plaintiff raised issues of material fact as to his ownership of the copyright cordings, any unauthorized copying and to whether it was originally created as a work for hire at Marvel’s “instance and — no matter how trivial — constitutes expense.” Following the ruling, the parties settled the matter on undisclosed terms. infringement. In essence, the Sixth

56 ASSOCIATION OF CORPORATE COUNSEL luxury car into a doorless party Side note: From an international music when it comes to repurposing machine. Due to this ruling, in-house perspective, the German Federal old works. counsel no longer need to say: “no, Constitutional Court recently held that The fair use doctrine, with its four- don’t use that music.” Instead, there is producer Moses Pelham could sample part test that takes into account the some gray area where once the ruling a two-second beat from electronica nature of the work and the harm the was black and white. However, just as pioneers Kraftwerk for his song “Nur secondary use can cause the market it is not prudent to assume that a video Mir,” noting that the new use was an for the copyright for the original or image posted online is freely avail- independent piece of work, as it did work. The test mediates between the not affect the economic value of the able for commercial reuse, the VMG property rights of copyright hold- original. The court added that hip-hop ruling offers some wiggle room when ers in creative works and the ability as a style of music would not survive considering small passages or clips of if sampling were banned. So perhaps, of others to reference and transform copyrighted music. a slight liberalization surrounding those works into something else. The Many questions, however, remain digital sampling has begun worldwide. US Supreme Court, in its landmark unanswered following the VMG ruling: decision in Harper & Row Publishers, The circuit split: The US Supreme Inc. v. Nation Enterprises, 471 US 539 Court may one day resolve the Album and the a cappella recording of (1985), stressed the importance of divergent rulings of the Ninth and Jay Z’s The Black Album, creating pro- the first fair use factor, which is the Sixth Circuits. In the meantime, it is test from EMI’s attorneys. Ultimately, “purpose and character of the second- likely that copyright holders bring- the piece resulted in no legal ac- ary use.” According to the decision, ing suit over sampling will select a tion. Similarly, DJ Greg Gillis, who the more the appropriator uses the venue within the Sixth Circuit, while performs under the name Girl Talk, copied material for new, transfor- musicians seeking a declaratory judg- has flouted copyright law with song mative purposes, the more it serves ment will file in the Ninth Circuit or collages combining multiple samples copyright’s goal of enriching public in a district court that had previously of modern hip hop with classic rock knowledge and the less likely it is rejected Bridgeport. (e.g., his 2008 album Feed the Animals that the appropriation will shrink the Long-term effect on sampling: contained over 300 samples). Girl Talk protected market opportunities of the VMG has muddied the waters around has apparently avoided being sued by sampling clearance. Regardless of one’s blithely responding that his mash- view of the hardline rule in Bridgeport, ups are protected by fair use. More it was easy to apply. Copyright hold- recently, DJs such as RJD2 and Den Synchronization ers have had the dual hammers of Sorte Skole also have used sampling license Bridgeport and Grand Upright to use in their works, apparently without as leverage during licensing negotia- infringement actions. If you use music synchronized with video (for example, if you tions. Now, VMG might embolden create a promotional video to put musicians not to seek any license for Music sampling compared on your organization’s website), “minor” or “de minimis” segments at to appropriation art then you need a synchronization all. But what is “de minimis” and what Putting aside the de minimis defense license. You need permission (i) is “substantial” is a fact-specific in- to copyright infringement, the ques- from the owner or administrator of quiry. As such, the risk of liability and tion remains as to whether certain rights to the musical composition, the cost of defending a lawsuit remains instances of sampling are protected and (ii) from the owner of rights a real deterrent. by fair use. The history of fair use sur- in the sound recording. With no rounding appropriation art suggests compulsory license scheme in The fair use argument that the same principles might be ap- place, sync rights are notoriously A decade ago, Bridgeport’s holding plicable to the comparable practice of difficult to negotiate, as the rights holders have no obligation definitively ended the permissive music sampling. Similar to sampling, to grant any license, nor is there sample culture. However, not all artists appropriation art incorporates objects any statutory limits on the license abided by the clearance practices of and images from other works, popular fee. One option is to use “stock the new era brought by Bridgeport. For media, or consumer advertising into a music” that can be obtained from example, in 2004, DJ Danger Mouse new visual work, whether for political a stock music service. This will posted online, without permission, commentary or not. Many have won- often allow more freedom to use The Gray Album, which was a mashup dered why there should be different the music and the recording. of samples from The Beatles’ White considerations for the visual arts than

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As modern technology the most part, fair use); Seltzer v. Green has shaped, rightly or Day, Inc., 725 F.3d 1170 (9th Cir. 2013) wrongly, views on the (Green Day’s use, without permission, nature of copyright works of a photograph of street art for use as the backdrop of a live concert stage — remember the internet presentation was deemed fair use). trope: “Information As modern technology has shaped, wants to be free.” rightly or wrongly, views on the nature of copyright works — remember the internet trope: “Information wants to be free.” The fair use doctrine has been copyrighted work. Many rightsholders broadened with respect to modern and some federal judges have decried appropriation art. In 1992, for example, this focus on “transformative uses” as the Second Circuit ruled that artist Jeff overly simplistic, but it has been em- Koons’s polychromed wood “String of braced in many recent decisions from Puppies” sculpture that was copied with the digital age that have broadened great fidelity from a museum shop no- the scope of the fair use doctrine. See tecard of the plaintiff’s photograph was e.g., Author’s Guild v. Google, Inc., 804 not fair use. See Rogers v. Koons, 960 F. F.3d 202 (2d Cir. 2015) (Google Books 2d 301(2d Cir. 1992). Fourteen years project which scanned digital cop- later in Blanch v. Koons, 467 F.3d 244 ies of entire libraries and established (2d Cir. 2006), Koons’s piece, “Niagara,” No magic formula for a publicly searchable database, with an appropriation of fashion photogra- fair use certain limitations, was deemed fair pher Andrea Blanch’s photograph from use due to its “highly transformative” Allure magazine, was fair use because The fair use doctrine mediates nature). Indeed, beyond music, a num- of the new expression, meaning, and between the property rights ber of courts have taken an expansive message captured in the new work. In established via copyright law view on fair use, allowing parties to 2013, the Second Circuit gave appro- and the ability for third parties use substantial portions of video or priation art a further boost in a dispute to use artistic works created by other copyrighted content for parodic, involving artist Richard Prince’s Canal others. There is no magic formula artistic, or educational uses — mak- Zone series, which had incorporated to determine what constitutes “fair use.” Concepts such as ing counsel’s job more difficult when the portraits of Rastafarians by photog- “less than 10 seconds of the attempting to parse the gray areas of rapher Patrick Cariou. song” or “less than 30 percent of fair use. See e.g., Equals Three, LLC v. In Cariou v. Prince, 714 F.3d 694 the picture” are urban legends. Jukin Media, Inc., 139 F. Supp. 3d 1094 (2d Cir. 2013), the Second Circuit ex- Each fair use analysis is decided (C.D. Cal. 2015) (humorous commen- amined 30 works of Richard Prince, on a case-by-case basis. tary on viral videos, which used clips created through the appropriation of the copyright works, was found, for of partial or whole images from

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the plaintiff’s book of photographs. when examining whether a sample The Second Circuit found 25 of the is fair use of the underlying musical No default “freebie” 30 works to be transformative and composition. protected by fair use. In those pieces, Ultimately, the precedential reach When it comes to music sampling, there is no default “freebie:” The Prince’s composition, presentation, of VMG will remain undetermined original Sixth Circuit Bridgeport scale, color palette, and media were until other federal courts can consider decision set the line at zero “fundamentally different and new” de minimis sampling disputes, the (every use of copyrighted music as compared to the plaintiff’s pho- fair use defense, or, in practical terms, requires a license), while the tographs. The appeals court went whether the ruling will alter sample VMG ruling restored the de further in rejecting the notion that clearance negotiations or embolden minimus standard, giving users of the secondary work must comment artists and other third parties to skip works some leeway in borrowing on the original work to qualify for the permission process altogether. The discrete snippets of other works. the fair use defense. Instead, the ruling and trend in fair use jurispru- court found that what is critical is dence cuts both ways for counsel. how the work in question appears to It may embolden third parties to the reasonable observer, whether it appropriate your company’s copy- presents a “new expression, meaning, righted content without first obtaining or message,” and whether the second- authorization or a license. However, it ary work comments on the original may also give your own clients a little or not. more flexibility in determining when a license or permission may be neces- The beat goes on sary. Ultimately, it remains a case-by- Using the same principles enunci- case analysis but without a hard line ated in Cariou about appropriation rule anymore for music. ACC of visual art (coupled with the Ninth Circuit’s ruling in VMG about de minimis sampling), a musician may claim that certain transformative instances of sampling also should qualify as fair use. Beyond changing the copyright infringement calculus for de minimis sampling, the VMG ruling has the potential to redefine the potential market for samples, and thereby affect considerations of fair use. Indeed, VMG directly affects the fair use calculus, namely the fourth factor about the harm that the sec- ondary use can cause to the market for, or the value of, the copyright for the original work. After VMG, many musicians seeking to sample will argue that the market value for a de minimis sample is now zero. Certainly, different types of sampling are more likely to be deemed as fair use than others (compare the use of modified, short segment looped into a song with a musician laying down vocals over the entire instrumental of the original song). Different consid- erations will begin to come into play