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The Downhill Battle to Copyright Sonic Ideas in Bridgeport Music Vanderbilt Journal of Entertainment & Technology Law Volume 7 Issue 3 Issue 3 - Summer 2005 Article 7 2005 The Downhill Battle to Copyright Sonic Ideas in Bridgeport Music Matthew S. Garnett Follow this and additional works at: https://scholarship.law.vanderbilt.edu/jetlaw Part of the Entertainment, Arts, and Sports Law Commons, and the Intellectual Property Law Commons Recommended Citation Matthew S. Garnett, The Downhill Battle to Copyright Sonic Ideas in Bridgeport Music, 7 Vanderbilt Journal of Entertainment and Technology Law 509 (2020) Available at: https://scholarship.law.vanderbilt.edu/jetlaw/vol7/iss3/7 This Note is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Journal of Entertainment & Technology Law by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. [B~yMrndepotic [By Matthew S. Garnett*]I he digital sampling controversy is right?6 "the student author's favorite The Bridgeport Music court responded dead horse."' Over the past de- with an iron gavel: "Get a license or do not cade, more than 100 legal articles, sample." 7 The court interpreted §114(b) of commentaries and student notes the Copyright Act of 1976 ("Copyright Act") have dealt with digital sampling to prohibit any unauthorized sampling where 2 and its relation to copyright law. "the actual sounds [in the original] recording In addition, the various constituencies in are rearranged, remixed, or otherwise altered the music industry, such as artists, compos- in sequence or quality."8 Consequently, the de- ers, producers, and recording executives, have fensive tools of copyright infringement, such "... the bright-line rule announced in Bridgeport Music should not apply where the disputed digital sample appropriates only the'sonic' ideas of the original work." also trumpeted their perspectives.' In gen- as substantial similarity and de minimis tests, eral, the viewpoints expressed by interested are unavailable to even the most quantitatively parties reflect "whose ox is being gored."4 Un- trifling or qualitatively transformative til the landmark ruling by the Sixth Circuit in sample.9 No matter if one samples 20 sec- BridgeportMusic, Inc. v. Dimension Films, how- onds or 20 milliseconds, and irrespective of ever, neither the courts nor Congress 5 had di- how one slices, loops, filters, layers, or rectly addressed an essential question in the stretches a sample, the Sixth Circuit has digital sampling debate: to what extent, if any, adopted the Biblical attitude expressed in may an artist digitally sample another's work Grand Upright Music, Ltd. v. Warner Bros. without infringing the sound recording's copy- Records, Inc., ("Grand Upright"), the prime MUSIC mover in the digital sampling debate: "Thou from of a previous recording and placing them shalt not steal." 10 in a new musical work.13 In the context of digi- Notwithstanding the Bridgeport Music tal sampling, "digital" refers to a set of binary decision, the text of §102(b) of the Copyright numbers representing an audio waveform. 14 Act plainly prohibits the extension of copyright These "numbers" are determined through the protection "to any idea, procedure, process, repeated measurements of the fluctuating elec- system, method of operation, concept, prin- trical currents, or analog electrical signals, com- ciple, or discovery, regardless of the form in monly known as sounds.1 5 Because it is impos- which it is... embodied."11 This Note argues sible to listen to numbers directly, every sam- that the bright-line rule announced in Bridge- pling system has both an Analog to Digital Con- port Music should not apply where the disputed verter ("ADC") and a Digital to Analog Con- digital sample appropriates only the "sonic" verter ("DAC"). 16 The ADC converts the elec- ideas of the original work. The main thrust of trical voltage of sounds into numbers, and the this argument is that the Sixth Circuit's hold- DAC converts the numbers back into voltages ing in Bridgeport Music is inapplicable where that can be output through audio speakers.17 the disputed copying is a protected exercise of Digital sampling, therefore, has three discrete "fair use" reverse engineering; that is, where stages: (1) recording the "sonic" numbers in the copying is necessary to appropriate the "sonic" sample; (2) editing (or not editing) the sample ideas embodied in the sampled work. with digital audio devices; and (3) playing back Part II of this Note presents a brief his- the modified (or unmodified) sample. tory of digital sampling, including its applica- In 1979 the first digital sampler hit the tion in the Hip-Hop musical genre. Part III pre- commercial market: The Fairlight CMI (Com- sents a walkthrough of the Bridgeport Music puter Music Instrument). 8 At a cost around decision, including its procedural history, the $30,000, the Fairlight CMI was "dubbed" prac- lower court's decision, and the Sixth Circuit's tical, and its early champions included Stevie recent amendment of its own opinion. Part IV Wonder and Peter Gabriel.' 9 A popular appli- presents an analysis of BridgeportMusic, includ- cation of early digital sampling systems was to ing reference to the recent eruption of academic record and playback "real" instrumental sounds and public reaction to the case. Part V sets aside (e.g. individual recordings of notes of brass in- the bulk of prior digital sampling scholarship struments, grand pianos etc.). 20 Limitations in to open a new front in the debate: the computer memory, the high costs of proces- "Electronica" musical genre, the "Downhill sors, and compatibility problems between dif- Battle" protesters, and the innovative applica- ferent manufacturers of samplers, synthesizers, tions of digital sampling common to Electronica and other digital audio devices made this prac- Music. Part VI argues that certain uses of digi- tice almost inevitable. 21 tal sampling in Electronica composition are The existing compatibility problems protectable acts of reverse engineering, and were solved in 1983 when industry-wide coop- therefore immune from the Sixth Circuit's "Get eration produced the Musical Instrument Digi- a license or do not sample" missive. 12 Part VII tal Interface ("MIDI"). 22 MIDI allowed digital concludes that, while the result in Bridgeport samplers, synthesizers and sequencers pro- Music is probably justified, its moratorium on duced by different manufacturers to commu- all unlicensed sampling is an improvident at- nicate seamlessly.23 As the 1980's progressed, tempt to copyright uncopyrightable "sonic" moreover, rapid advances in digital and com- ideas. puter technology, coupled with the increased affordability of computer memory and proces- sors, worked to release the creative harness on 1. A Brief (and Incomplete) History digital sampling.24 For instance, technological of Sampling developments allowed a sampling artist to iso- late sounds from a particular instrument on a A. The Life and Times of Digital recording, such as a single note from a Miles Sampling Davis trumpet performance or a John Bonham Sampling is the act of taking "sounds" drum "kick," and then digitally alter its sonic The Downhill Battle to Copyright Sonic Ideas in Bridgeport Music characteristics to form, respectively, either an Jay Kool Herc, who brought his manually elaborate jazz solo or an entire percussion en- spliced "funk" beats to street corners and recre- 25 semble. ation centers in the South Bronx (New York 29 Today, synthesizers, effects processors, City). This musical fashion quickly evolved into sequencers and drum machines all work along- the musical and cultural revolution known as side the digital sampler, and are often bundled "hip-hop."30 ... any person with a microphone, a computer, and either a substantial compact disc collection or access to the Internet, can produce commercial rap music" into software packages for personal comput- Throughout the mid-1970's and early ers. Deep-pocketed musicians and recording 1980's, disc jockeys became increasingly cre- studios no longer represent the exclusive mar- ative in their use of turn-tables. For example, ket for sampling systems. Software products they experimented with a record's playback such as "Gigastudio 160," "Cubase SX," and speed, they "looped" rhythm arrangements of "Reaktor 4" incorporate all the constituents of a song by mixing two copies of the same record, a professional recording studio, and each prod- and they "scratched" one or more records to uct is available for less than five-hundred dol- create unique rhythmic and arguably cacopho- lars.2 6 The result is that any person with a mi- nous sounds.31 Given that these techniques crophone, a computer, and either a substantial often involved prodigious manual dexterity, it compact disc collection or access to the Internet, is hardly surprising that many disc jockeys can produce commercial rap music. 27 The func- viewed themselves as musicians and their turn- tionality and affordability of digital audio equip- tables as musical instruments. ment is therefore bereft with both benefit and With the advent of digital sampling and liability: a society of potential recording artists, rapid technological advances in the early 1980's, but also a society of potential digital sampling however, hip-hop producers discovered they bandits. could easily recreate a disc-jockey's perfor- mance with the digital sampler, often using the B.Digital Sampling in the Hip-Hop sampler in conjunction with other emerging Musical Genre digital audio equipment.32 Despite a traditional disc-jockey's ability to dazzle audiences with his 1. The Hi p-Hop Turn-table craftsmanship at the turn-table (and his con- Dee-Jay: rom the South tinued relevance as a performing artist), he nev- Bronx to Studio Extinction ertheless faced extinction in the music studio. 33 The first musical sampling (which was not digital) is generally credited to Jamaican 2. Hip-Hop Sampling as Cul- disc-jockeys in the 1960's that would, through tural Communication, Theft, the use of phonograph turn-tables, combine the or Both? sounds of previous recordings to create a vari- Commercial reality cannot be ignored.
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