New Case By Notorious B.I.G. Estate May Finally Test Question Of Sampling Fair Use

Copyright

from the about-time dept

We’ve written about Bridgeport many times in the past, as the quintessential example of a “sample troll.” The company would acquire the copyrights to certain classic songs (sometimes by very questionable means) and then sue various musicians that sampled those classic songs in some manner. While the whole process has been sickening, the most troubling aspect of Bridgeport has to be the horrible ruling in Bridgeport Music, Inc. v. Dimension Films — a ruling so ridiculous and problematic that it makes copyright nerds angry to even think about it. The district court said that the sampling in that case was not infringement, but the appeals court ruled that sampling was against the law, and made a bunch of claims that have no basis in copyright law. The most troubling line being:

“Get a license or do not sample. We do not see this as stifling creativity in any significant way.”

The specific ruling was about whether or not the infringement should be rejected as being de minimis — an integral part of copyright law that has made it clear that a tiny bit of copying is fine (note that this is unrelated to fair use). The court’s argument against de minimis use was basically nonsensical:

“Even when a small part of a sound recording is sampled, the part taken is something of value.”

But whether or not it’s “something of value” is not really the issue. Either way, the ruling was a key one in sending chills through the music world when it came to sampling. The court only addressed de minimis use, leaving aside the question of fair use in sampling, but almost no one has been willing to test fair use when it comes to sampling in court. One general theory is that almost everyone generally has “too much to lose” if the ruling comes out in a particular way. The recording industry, of course, tends to fight fair use at every turn, so even though the RIAA labels are the main beneficiaries of widespread sampling, they’ve had little interest in expanding fair use jurisprudence (and, in fact, constantly attack fair use as a concept).

So it’s interesting to see a new sampling case hit the courts — and one where both de minimis and fair use is being raised (this time, thankfully, not involving Bridgeport). The case involves the estate of Notorious B.I.G. filing for declaratory judgment that a particular sampling effort does not infringe. The estate is happy to admit that the song, “The What,” released in 1994, included a “sample” from the song “Can’t Say Enough About Mom” by Lee Hutson. But notes that it was clearly both de minimis and fair use:

On information and belief, the Recording merely samples two non-sequential tones from Can’t Say Enough, and it has been adapted, modified, and supplemented substantially from its original form. The use has not violated any valid copyright interest held by Defendant, and it is both de minimis and fair use.

The estate is also arguing that the attempts by Hutson to demand licensing fees is barred both by the statute of limitations and laches (i.e., waiting too long to file the claim). The statute of limitations issue comes up a bunch in music copyright cases, and it’s a bit of a mess. Technically the statute of limitations is three years, but there’s disagreement as to what that three years really means. Is it three years from the date the song was released? Or three years from when someone found out about the alleged infringement? Or, is it just from today going back three years to cover the “most recent three years” of infringement? It’s entirely possible that the court might find that the statute of limitations or laches claims are enough to grant declaratory judgment, so there might not be a ruling about the de minimis or fair use issues. But it sure would be nice to have something other than the crazy Bridgeport ruling to point to when it comes to the question of sampling and copyright.

Filed Under: de minimis use, fair use, lee hutson, notorious b.i.g., samples