Jay Z Steps Up To The Plate To Argue That Tiny Music Samples Are Unprotected By Copyright
from the good-for-him dept
For years we’ve written about the ridiculous state of copyright law around music samples. As you may or may not know, some of hip hop’s early success stories were based on tremendous use of sampling, which most people assumed to be perfectly reasonable. And then… greedy lawyers showed up. A lawsuit over De La Soul’s classic 3 Feet High and Rising started things off and then it got worse and worse. In 2005, an absolutely ridiculous appeals court ruling in the 6th Circuit, Bridgeport Music v. Dimension Films cemented the idiotic nature of copyright law as it relates to samples. Judge Ralph Guy wrote the terrible decision that includes this line that simply ignores basic copyright law: “Get a license or do not sample. We do not see this as stifling creativity in any significant way.”
In that case, the use was absolutely minimal. As Guy himself describes: “a two-second sample from the guitar solo was copied, the pitch was lowered, and the copied piece was ?looped? and extended to 16 beats.” In other worse, the sample was unrecognizable. No matter. “Get a license or do not sample.” The defendant argued that this was de minimis, and thus not protected by copyright. Judge Guy doesn’t appear to care. “Even when a small part of a sound recording is sampled, the part taken is something of value.” He even claims that such sampling “is a physical taking rather than an intellectual one.”
That case was settled soon after (so no appeal to the Supreme Court) and very few have actually been willing to challenge that ruling or to try the argument again in another court, in hopes of a circuit split. However, that may be changing. Last year, TufAmerica sued Jay Z, Roc-A-Fella and Atlantic Records for a tiny sample of the song “Hook & Sling” by Eddie Bo on Jay Z’s “Run This Town.” TufAmerica has been reprising the role of Bridgeport lately, suing lots of artists over samples, including the Beastie Boys (the day before Adam Yauch passed away). Meanwhile, Jay Z, in the past, has been sued by others for samples as well — including Bridgetport Music, the same company that won that terrible 6th Circuit decision. However, those cases have never gotten very far.
Here, however, it appears that Jay Z is going to take a stand and argue that such a sample is de minimis and thus not copyright infringement. He’s also arguing that the sample is so small and so short that it’s not even protectable subject matter.
First, it is black letter law that words and short phrases are simply not protectable under the Copyright Act. Thus, Plaintiff cannot state a claim based on the alleged infringement of a generic lyric such as, “oh,” or the sound recording thereof, and Plaintiffs claims should be dismissed as a matter of law. Second, even if the word “oh” or the miniscule portion of Plaintiffs Recording featuring the single word was somehow original enough to warrant copyright protection, the alleged copying here of a sound lasting a fraction of a second in Plaintiffs Works is de minimis and thus not actionable.
This isn’t a brand new argument. In fact, as Jay Z points out in his filing, TufAmerica actually lost on a nearly identical point a similar case last year (the one against the Beastie Boys), where a sample was judged to be so minimal that it “lacks the requisite originality to be afforded copyright protection” (other parts of that case still live on, though). Either way, it will be interesting to see if this case proceeds and if the court agrees with either the sample being so tiny as to not even be eligible for copyright infringement or, if it is copyrightable, to be okay under de minimis use.
Unfortunately, Jay Z doesn’t even bring up the possibility of fair use in the argument, which perhaps makes sense, but you’d think that it would be nice to leave that possibility open should the other two arguments fail. Either way, it looks like this has the chance to become yet another important case involving music samples, and hopefully can get us past that awful Bridgeport decision from the 6th Circuit, relegating it to the dustbin of history reserved for truly awful judicial decisions.
Filed Under: beastie boys, copyright, de minimis use, jay-z, samples, unprotectable
Companies: tufamerica
Comments on “Jay Z Steps Up To The Plate To Argue That Tiny Music Samples Are Unprotected By Copyright”
Technical way to overcome a stupid Judge
Sample all of the music on Google Play, search for “sounds like” the de minimis part, and bring the listing of how many thousands of songs have that sounds like.
Then ask the judge, which ones of these are violating any of these others? Then it will be recording studio vs recording studio and they will all die releasing the copyrights to the artists where they should be.
Re: Technical way to overcome a stupid Judge
It’s hard to overcome a bought and paid for judge.
Re: Re: Technical way to overcome a stupid Judge
A car backing up works wonders for that problem.
more need to do the same as this artist. maybe then, the studios will realise that to keep fighting not only their customers but also artists themselves over copyright is eventually gonna end in them becoming obsolete as well as more despised than they already are.
Re: Re:
The recording studios are already obsolete, as is the entire RIAA structure.
I for one would sue the other self-appointed organization stating that I didn’t assign them the rights to collect fees for my works, hit them up for penalties of 50,000x anything they collected.
Sampling has a nice long history of OMG THEY OWE ME MONEY!
They built entire divisions, fighting over what 3 seconds of sound should earn them.
Imagine where we’d be today if there wasn’t so much focus on trying to extract every possible microcent out of everything.
But then some labels still charge for vinyl breakage in contracts, change takes a very long time.
Jay Z is right!
I am not a particular lover of Jay Z, but when you are right you’re right.
The dirty little secret is it helps advertise and promote.
Even a programmer will be using small clips in transitions and effects to smooth out the flow of a segment.
if copyright fascists are going to go after that, there simply won’t be any programmers, or content, which will kill off this old industry.
I was under the impression 20 seconds of ANYTHING. But you may have more rights directly from the musicians of which the labels don’t know about. You may have more rights directly from the labels that the musicians don’t know about.
In the NEW industry, musicians decide the need for a label, studio, venue, video promo, or mastering service. Or if they even want to turn a profit at all.
The reason generally that argument doesn’t work out is because a sample by it’s nature is part of a larger copyright work. Nobody can deny that the larger work has a copyright on it. Not just the words, not just the melody, but very specifically a copyright on the performance itself.
Sampling is generally the lazy way to go. You like something, then re-create it yourself. You want a 2 second guitar part? Play it yourself. If you want to sample, get a license.
The judge got it exactly right. There is no limitation of creativity, only a limitation on duplication and re-use.
Re: Re:
That’s like saying you can hold the copyright on a given phrase/handful of words in a book, just because the book itself is copyrighted. There are only so many different ways you can mix notes, if people are allowed to start ‘claiming’ specific combinations, soon it would be flat out impossible to write any song without being forced to get licenses from dozens of different musicians/labels, and while I’m sure they’d love a system like that, it would be pure hell on any real musicians/songwriters.
Regardless, whether or not that is true, a simple fact remains(no matter how often some people seem to want it not to): Fair Use exists. Not ‘Paid fair use’ mind you, there’s no such thing, because you don’t have to pay for something to be Fair Use(and in fact the act of paying means it’s not fair use, but a license).
Also, talk about a terrible example of ‘lazy’ sampling, if you’d read the article you’d know the sampling in question was anything but ‘lazy’.
“a two-second sample from the guitar solo was copied, the pitch was lowered, and the copied piece was “looped” and extended to 16 beats.” In other worse, the sample was unrecognizable.
The judge got it exactly right.
No, he didn’t. If anything he got it exactly wrong in his attempt to re-write the law. The only way he’d have been right is if Fair Use didn’t exist, and since it does, he most certainly did not ‘get it right’, because according to his ruling(and only his ruling as far as I know), Fair Use does not exist in music, contrary to what the law actually says.
Re: Re: Re:
Remember, Whatever really dislikes fair use.
Re: Re: Re:
That’s like saying you can hold the copyright on a given phrase/handful of words in a book, just because the book itself is copyrighted.
Not a very good example. Words are just words, compared to a musical PERFORMANCE. Remember, we aren’t talking about using a single word that may appear in a song, rather we are talking a sample of a specific musical performance. They are very different.
Fair Use exists
yes, and there is very little “commercial fair use” that would apply to making new commercial music.
Also, talk about a terrible example of ‘lazy’ sampling, if you’d read the article you’d know the sampling in question was anything but ‘lazy’.
The rook a sample. They lowered the pitch with standard software. They looped and extended it with standard software tools. It’s not particularly fancy.
Fair Use does not exist in music
You are correct, fair use does not exist in music for a very good and simple reason: Sampling is of a performance, and not of the words or notes written on paper and played by someone else. You want a guitar solo in a lower pitch in 16 beats? PLAY IT YOURSELF. Don’t be frigging lazy.
Fair use of a performance doesn’t exist, which is why the judge got it right.
Re: Re: Re: Re:
Answer me, this,is the use of cut and paste to get a quote from a copyrighted document O.K. or should people be forced to key the text in for themselves?
You are arguing that the first is infringement, while the second is not, although there in no difference in result for either approach.
Re: Re: Re:2 Re:
Hi Troll. I know you are trolling, but I will answer you anyway.
Printed words (or digital words) are not a performance, they are a document. There is no copyright on letters or numbers by themselves. The written word isn’t in and of itself a performance, only a work.
Re: Re: Re:3 Re:
You are arguing that a two note sample enjoys, and should enjoy, more copyright than literature. And then you care calling HIM a troll? You fail at logic and the internets.
Re: Re: Re: Re:
Fair use of a performance doesn’t exist, which is why the judge got it right.
Pretty sure this is completely wrong. Please back it up with references though if you want to convince anyone.
Re: Re: Re:2 Re:
You need to read the quote above that:
“yes, and there is very little “commercial fair use” that would apply to making new commercial music. “
There is always fair use in regards to uses that pass the court’s list of points. New commercial music however is not one of those things. Fair use doesn’t extend to that level when it comes to musical performance.
Re: Re: Re:3 Re:
There is always fair use in regards to uses that pass the court’s list of points. New commercial music however is not one of those things.
That is incorrect. Fair use can and does apply to commercial use, whether in music or anything else.
Re: Re: Re:3 Re:
New commercial music however is not one of those things. Fair use doesn’t extend to that level when it comes to musical performance.
Incorrect, the SC found in Campbell v. Acuff-Rose that commercial use does not automatically mean something cannot be Fair use.
http://en.wikipedia.org/wiki/Campbell_v._Acuff-Rose
Re: Re: Re: Re:
Not a very good example. Words are just words, compared to a musical PERFORMANCE.
Lets turn that around shall we, and see how much it makes sense:
‘Not a very good example. Notes are just notes, compared to a literary CREATION(in the form of a story).’
No, nope that doesn’t seem to really hold up now does it?
Again, the overall creation, in story or song form, may be unique, but much like there are only so many ways to combine words and have them make sense, there are only so many ways to combine notes and have them sound good, so if people can start claiming ‘combinations’ of notes, then it won’t be long until it’s impossible to write any song without having to get a couple dozen licenses from parasites who think they deserve control over small sections of note or words, as if they were the first ever to combine them in that particular way.
yes, and there is very little “commercial fair use” that would apply to making new commercial music.
Irrelevant, commercial use does not automatically disqualify the use of a work from being fair use, it’s only one of the considerations.
The rook a sample. They lowered the pitch with standard software. They looped and extended it with standard software tools. It’s not particularly fancy.
Once more, spin the statement and look at it from the other side to see how much sense it makes:
‘The [t]ook a sample. They shifted a few words around with standard software. They added a few words before and after and extended it with standard software tools. It’s not particularly fancy.’
And again, based upon your logic and the judge’s, fair use would not exist in literature.
Sampling is of a performance, and not of the words or notes written on paper and played by someone else.
Your logic here doesn’t make any sense. The ‘performance'(that is the notes combined into the song as a whole) of a song is no different than the ‘performance'(words instead of notes, with no other difference) of words put into book form. Fair use says that you can take, remix, and modify the words from a book, or a picture, or a clip of a movie, and it’s still fair use, yet for some reason you seem to be treating the notes of a song as an entirely different category of creation. They’re not.
Fair use of a performance doesn’t exist, which is why the judge got it right.
And again, no he didn’t, because that exact same argument applied elsewhere would mean fair use didn’t exist in any category, something that is most certainly not true.
‘Fair use of a book doesn’t exist, which is why the judge got it right.’
‘Fair use of a movie doesn’t exist, which is why the judge got it right.’
‘Fair use of a painting/picture doesn’t exist, which is why the judge got it right.’
None of the above are true, so what makes a song so special that it deserves special treatment?
Re: Re: Re:2 Re:
Notes are just notes,
You are correct. The problem here is that you are confusing the copyright that exists on a song, as an example, versus the copyright on a performance. People can re-use the notes (there are only so many, right?) but when it comes to a recorded performance, there is only one, it is unique. So even a single note or beat taken from a performance is a unique recording, and thus copyright extends all the way down the small parts.
That’s why the words and notes thing isn’t relevant to the argument here.
The rest of your argument falls apart when you come to understand the difference.
200 people can record the came song. There would only be one copyright on the song itself – and 200 unique copyrights for the 200 unique performances. One is not the same as the other.
So, if you can take the time to understand that concept, you you like to go back and give it another try?
Re: Re: Re:3 Re:
So even a single note or beat taken from a performance is a unique recording, and thus copyright extends all the way down the small parts.
Have you heard of something called de minimis?
Re: Re: Re:3 Re:
“So even a single note or beat taken from a performance is a unique recording, and thus copyright extends all the way down the small parts.”
I think that assertion is not done being tested in the courts, however even if it’s totally true — doesn’t that indicate to you how insane current copyright law can be?
I try to avoid reductio ad absurdum arguments, but this particular one seems to be unavoidable given that the nature of the argument is reduction: how far down does the copyright extend? A picosecond? A femtosecond? At some point, applying copyright becomes ridiculous. If I can claim copyright on a femtosecond of a recording I make, then there would be millions of unrelated works that I could claim are infringing.
Re: Re:
“Nobody can deny that the larger work has a copyright on it.”
..and nobody’s trying to. But there are exceptions to copyright and arguments that apply to smaller sections of a work that don’t apply to the original, especially when the resulting work is transformative. These exceptions have been important to the history of art, outside of music as well as within, and it’s the loss of these in favour of a blanket cash grab by legacy industry players that’s so concerning.
But, you sidestep the actual argument, as ever, in favour of the easiest strawman you can dream up…
“You want a 2 second guitar part? Play it yourself.”
Then, most likely get sued anyway because your tiny guitar riff resembles another. Even if you hadn’t actually copied the original and came up with a similar riff on your own. If a tiny sample that doesn’t bear any relationship to the original can be attacked, what about an original piece that unwittingly does sound like another?
Oh, you’re dumb enough to think that these rulings won’t get used against artists who aren’t sampling at all? You should read the actual stories more often before diving in.
Re: Re: Re:
you’re dumb enough
It’s why I can’t have a discussion with you, you are too quick to try to insult me rather than really address the points.
At least you are back to signing in to be insulting. That’s an improvement.
Re: Re: Re: Re:
And you’re equally demeaning and condescending. Top that up with lies and anyone can see you’re the bigger asshole.
Re: Re: Re:2 Re:
Sorry folks. “Whatever” is totally right on all counts and most still are missing the point. A recording is the preservation of a performance. The argument is, no one performs anything exactly the same and therefore that performance is unique and can be copyrighted. Anyone can sing a song but no two people will sing it exactly the same way. Perhaps if many of you view a sample as using someone’s unique performance it might make more sense that you would compensate someone for using a recording of their unique performance.
Re: Re: Re:3 Re:
I pointed it out to him, and I’ll point it out to you:
Fair Use Exists.
You can ‘sample’ a book, you can ‘sample’ a video, you can ‘sample’ a picture, what exactly makes you think a song is any different? It does not matter that a particular ‘performance’ might be ‘unique’, a book is ‘unique’ to the one who wrote it, but you can still take excerpts from it and use it in another creation, and songs are no different.
all the notes and words are public domain trying to claim any ownership is like saying they created the musical notation.
“In other worse, the sample was unrecognizable.”
Did we forget the word “music” after “worse” or is that meant to be “words.”
3 feet high is tiny
Why don’t these non musical rhythm talkers just spend some energy and learn how to PLAY the parts they are sampling? Somebody else did and did it so well that they just want to use it for their own profit. Jay Z is rich enough to call the original guy and have them re do whatever it is he wants to use. Talk about cheap!
Re: Re:
Paying the person to re-do it is actually often significantly cheaper than licensing a sample, and this is not necessarily an issue of being cheap. In the case of albums like 3 Feet High or Paul’s Boutique, it does come down to money–those albums could not possibly be financially viable at current standard sampling fees.
But what’s more at issue is the idea of why a fee is required. Taking a three-second sample and altering it until it is unrecognizable creates something different enough that it certainly isn’t competing against the original work. No one is going to hear Jay-Z’s track and think “whelp, I have no reason to buy any of Eddie Bo’s music anymore.” So if it is transformative and doesn’t diminish the original, how is it any different from something like collage?
Lastly, while it’s typically producers who sample and not the “non-musical rhythm talkers,” thanks for choosing a term that seems to imply that rhythm isn’t a component of music (despite it being far more central to musical composition than melody in a great many cultures) while simultaneously belittling the musical contributions and tastes of millions upon millions of people. Congratulations on your iconoclastic condescension!
4 chords , not sure how many of you’ve heard this
https://www.youtube.com/watch?v=oOlDewpCfZQ
Re: Re:
https://www.youtube.com/watch?v=K8hHMx5CaSI
Re: Re: Re:
From 7 years ago, a rant on Pachelbel’s Canon in D being used in lots of later music.
Judges... Are they dumbest lifeform in the known universe?
Yes they are…. the results are in. judge is nothing more than a life support system for a anus.
@ PaulT
Uh….there’s a mistake here:
“Then, most likely get sued anyway because your tiny guitar riff resembles another. Even if you hadn’t actually copied the original and came up with a similar riff on your own. If a tiny sample that doesn’t bear any relationship to the original can be attacked, what about an original piece that unwittingly does sound like another?”
Copyright accrues to “original works of authorship,” which means if you create a tune without knowing anything about one that is closely (or even exactly) like yours, you have created a new copyrighted work.
I have to wonder aloud, why did the accused infringer have to copy someone else’s 2 seconds of music instead of creating his own 2 seconds worth to loop on? Wouldn’t it have been…well…more “creative” to actually create? Or was he merely trying to co-opt someone else’s fame?
Re: @ PaulT
Why should he have to? Pretty much the bedrock of culture and creativity is that which is created now is based upon what was created before.
People remix, change, modify that which was done before to create new works, that’s how culture grows and expands, and without the ability to take from what’s been done and expand upon it, creativity would grind to a stand-still, because finding something truly unique, and not based upon or inspired by something that came before is all but impossible.
Re: @ PaulT
I have to wonder aloud, why did the accused infringer have to copy someone else’s 2 seconds of music instead of creating his own 2 seconds worth to loop on? Wouldn’t it have been…well…more “creative” to actually create? Or was he merely trying to co-opt someone else’s fame?
Everything is created out of something else, and you can always find a way every artist could have been “more” creative. Wouldn’t the guitarist have been more creative if he’d built his own guitar, carefully tuning and tweaking it sound to his own artistic vision, or was he merely trying to co-opt the beautiful sounds of Fender or Gibson? Wouldn’t the painter have been more creative to go foraging in the woods for pigments, crafting his very own colours and hues? Wouldn’t the photographer have been more creative to design and build his own brand new cityscape, instead of photographing New York at night, or was he merely trying to co-opt the fame of the architects and the advertisers? Wouldn’t the writer have been more creative to invent a brand new language with his own custom vocabulary and idioms, instead of riding on the back of English?
Wouldn’t all art be more creative if it existed only in the imaginations of newborn infants, built entirely from the raw aether of consciousness without relying on the symbols, ideas and identities that we develop by absorbing things from the world around us?
Re: @ PaulT
“why did the accused infringer have to copy someone else’s 2 seconds of music instead of creating his own 2 seconds worth to loop on?”
Why do collage artists use other people’s works? Can’t they draw their own pictures to use instead?
Perhaps what you’re missing is that sampling is a form of collage, which is a type of art all on its own, distinct (but not lesser) than original composition. In fact, it is original composition, just at a different level of abstraction.
The use of existing work in collage is an integral part of the form — it is taking the existing cultural landscape and using it to communicate something new. It can’t work if you’re using compositions that aren’t already a part of the cultural landscape.
Eh
My friend and I argue this often to try and see a way out. He mashed up Marvin Gaye x Mos Def, also ATCQ x Pharcyde and De La Soul x Fela Kuti. Apple recently cleared one of the mashup songs between Marvin Gaye and Mos Def and now it’s on TV and available on iTunes.
Keep in mind here, royalties still go to the labels for the TV commercial, not the mashup artist.
This friend of mine has his mashups on vinyl thanks to bootleggers. They sell out all the time and he makes 0 in sales since it’s bootlegged. This is a valuable point I note, because if he created original music and copyrighted it, the bootleggers should be giving him a cut. It’s only fair, he deserves to be compensated for creating a unique work of art. If the law was nerfed then he couldn’t even think about sustaining an artist career in music sales.
There’s a lot more to the argument, but the idea we conclude with usually is that copyright is in place to inspire creativity, as in protecting your ideas such as keeping your album from being duped by vinyl bootleggers. But it’s obviously gone too far and needs revisions. It’s just the problem of putting limitations on a world that is supposed to be free and abundant that’s causing all these problems.
Re: Eh
There’s a lot more to the argument, but the idea we conclude with usually is that copyright is in place to inspire creativity
It’s obviously unnecessary if that’s the purpose. Creative people will create with or without copyright. Copyright is working if it then provides incentives to release those creations publicly, when that wouldn’t happen otherwise. I think it’s also clear that such incentives are largely not needed, and certainly the ones we have now are way out of proportion to what’s necessary or appropriate.