by Lee Nisson*
Should musicians be free to use samples from the work of others in their songs without having to pay for them, or should sampled artists have a right to get paid for their work? In this Contribution, Lee Nisson (’18) unpacks the copyright issues around digital sampling of music, exploring the doctrine of de minimis use. Despite the artistic merits of sampling in music, the Contribution argues that all sampling constitutes copyright infringement.
Presumably, a pirate’s life in the early days of the American Republic involved ample plunder, plucky and exotic animal friends, shanty songs, and a free life upon the boundless ocean. To be a pirate in these later days of the American Republic, however, one need only click a button and illegally download an mp3 audio file. No wonder pop culture romanticizes the old ways of piracy – the current mode is infinitely less colorful.2
Nevertheless to be a pirate, then as now, is to be a thief. It is well settled within American jurisprudence that expropriating and copying and entire track of an audio file is against the law: the Copyright Act of 1976 makes it illegal for anyone to make a complete copy of a song without the original author’s express permission.3 A more difficult question of law, however, is how to treat a direct copy of only a portion of the work – in other words, a “sample” of the original audio file. This question has become increasingly acute as the technological means to create and dissect copies improves at exponential rates. Indeed, entire genres of the music industry have evolved to work with these advanced samples, and they aren’t going away.4 Samples present a twofold problem for the American judicial system. First, the Copyright Act itself does not contemplate the existence of these samples within the text itself and so requires creative judicial interpretation.5 Second, as these samples continue to advance in accuracy and traceability, they run beyond the bounds of, and risk being exploited by, judicial evidentiary tools such as the de minimis use doctrine that has evolved to allow judges to throw out cases involving relatively small amounts of copying.6
Notwithstanding that digital sampling can constitute its own art form, this Contribution will argue that when such sampling is done without a license, it constitutes per se infringement. The analysis of the Sixth Circuit in this area that bars those who sample without license from invoking the de minimis use doctrine should be adopted more widely.7 This holding protects the legitimate reproduction rights of original authors, furthers the promotion of progress in the arts as laid out in the Constitution, and creates clear property rights that encourage the efficient organization of private industry.
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With the passage of the 1976 Copyright Act (“the Act”), Congress cemented into statute the idea that sound recordings were distinct from other media subject to copyright protection.8 Digital sampling is a process that consists of converting a portion of the analog or digital signal of a recording that is protected by the Act and mapping it so that the sample’s pattern can be replicated, tweaked, and adjusted with the press of a button.9 This process has become increasingly sophisticated and affordable since its introduction in the late 1970s.10 Furthermore, “digital sampling . . . postdates existing copyright law.”11 As such, the Act was passed before an understanding developed of how digital sampling would impact the recording industry; piracy at that time largely consisted of copying entire analog albums.12 The protections that Congress envisioned were therefore a bit more clear-cut: the Act ensures that the copyright owner of a sound recording was given the exclusive right to alter or copy that recording, and so it did not distinguish the precise content pirated from the entire original recording itself.13 The de minimis use doctrine, by contrast, evolved separately to address evidentiary situations wherein a claimed harm was so insignificant that it could not rise to a level deserving legal remedy.14 Moreover the de minimis use doctrine arises out of the common law; the Act does not incorporate it into the statute itself.15 Given the separateness of the de minimis use doctrine and the technological context in which the Act was passed, there are manifold reasons to intuit that a natural reading of the Act precludes the application of the de minimis doctrine to sampling.
The first is that a holistic reading of the text of the Act itself suggests that a de minimis use exception to infringement is inapplicable when a sound recording is implicated. The history of § 114(b) of the Act suggests as much: sound recordings were not afforded federal copyright protection until 1971, and these protections were subsequently incorporated into the Copyright Act of 1976.16 When Congress drafted the statute, it added further protections for sound recordings: the copyright owner’s exclusive rights do not extend to another recording “that consists entirely of an independent fixation of sounds, even though such sounds . . . imitate those in the copyrighted sound recording.”17 According to the text of § 114(b), should the infringing material consist of anything less than an entirely independent sound recording, the copyright holder may bring a cause of action.18 Granted, the word “entirely” in and of itself is not dispositive that this is the only correct reading.19 However, the language incorporated into the 1976 Act was lifted verbatim from the 1971 statute with a single exception – the addition of the word “entirely.”20 Congress does not mince words; the addition of “entirely” suggests that only the valid copyright holder has the right to reproduce the original sound recording, whether whole or in part, and that Congress affirmatively intended to broaden the holder’s rights from the initial grant of protection in 1971.21 Furthermore, the legislative history suggests as much. The House Report on § 114(b) states in part that “infringement takes place whenever all or any substantial portion of the actual sounds that . . . make up a copyrighted sound recording are reproduced.”22 Regardless of duration, so long as a reproduction takes place using the actual sounds fixed in the original recording, the resultant sound recording does not consist entirely of an independent fixation of other sounds.23 As such, the exclusive rights granted to the copyright holder for a sound recording under § 106(1) are necessarily infringed by even a small amount of sampling without a license.24
Nevertheless, statutory interpretation does not reside in a vacuum wholly apart from the medium that the laws underlying it are trying to govern, for it is the unique nature of digital sampling itself that lends credence to this particular exposition. Since sampling directly copies an original work and incorporates it exactly into the same medium, it is akin to a physical form of taking rather than a purely intellectual one.25 It seems illogical to suggest that just because copies are getting more accurate and more easily dissectible that the law cannot evolve to contemplate the misappropriation, nor does the Act make any such explicit contingencies.26 Indeed, because Congress intended to target a simple form of piracy with such robust protection, it is unlikely that Congress meant for an unanticipated but more sophisticated form of piracy to slip past the law’s grasp. Nevertheless, one could take the de minimis use doctrine to suggest that only a small amount of illegal copying would be okay, even if it weren’t by accident. Importantly, the law does not tolerate the quantification distinction in other contexts. As Judge Silverman pointed out in his dissent in VMG Salsoul, LLC v. Ciccone, “[i]t is no defense to theft that the thief made off with only a ‘de minimis’ part of the victim’s property.”27
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It cannot be understated that the de minimis use doctrine is a creature of the common law. However, even if the statute itself is silent on the precise issue of sampling that splits the Sixth and Ninth Circuits, the common law around the Copyright Act is not.28 The de minimis use doctrine is not immutable, for when evidentiary tools of judicial equity no longer serve their intended purpose, the Supreme Court has every right to rule that they are no longer an appropriate tool for consideration – it has done so before.29 If the Court chooses to address the split in the future, it should do so again here.
The applicability of the de minimis use doctrine to digital sampling cases reveals two great flaws, both rooted in the doctrine’s storied history in music copyright law. First, federal copyright protection did not extend to sound recordings until 1971, and until then courts could only preside over actions that implicated the copyrights in musical compositions.30 The limited nature of compositions written in western twelve-tone scales necessitated that to satisfy a substantial similarity test, a piece needed to be played to be discerned.31 Thus the inquiry evolved such that if the average audience could recognize the similarity between the copy and original by their sound, then a copyright was infringed.32 If the average audience member could not divine the differences, then the court should not waste its time on an action.33 As such, the relevant test for a musical composition was to look for the substantial similarity in an imitation of sounds, yet with a digital sampling that is not at issue before a court – a sample is necessarily a verbatim copy of the original music.34 Thus, the de minimis test has no relevance in cases involving sampling. After all, the inquiry in composition cases was whether or not a copyright had been infringed, but “the pertinent inquiry in a sampling case is not whether a defendant sampled a little or a lot, but whether a defendant sampled at all.”35
“[W]here a law’s rationale ceases to apply, so does the law itself . . . .”36 Though audience reaction is a subjective form of measurement, it remained ideal as a means to gauge musical composition infringement. The arrangement of notes is an intellectual endeavor, and to misappropriate the arrangement is classic intellectual infringement.37 However, a sound recording is more akin to a physical property right, for its digital signal can be measured and recalled with perfect accuracy even after it has been taken from its point of origin.38 Given that, and coupled with the heightened pleading standards at the federal level,39 the de minimis use doctrine would lead to further inquiry where none would be necessary. Again, the pertinent question in sampling cases must not be a discussion of how much has been taken, for that which has been taken by sampling is a known quantity.40 The more appropriate inquiry in these cases are questions of relief, for “even when a small part of a sound recording is sampled, the part taken is something of value.”41
This is all the more poignant given what is necessary to prove per se infringement under the Act. The Supreme Court determined that under § 102, a plaintiff must demonstrate “(1) ownership of a valid copyright, and (2) copying of constituent elements of a work that are original.”42 Once those prongs have been met, the claim will be successful by demonstrating a valid showing for two separate factual inquiries: “[actual] copying and improper appropriation.”43 In the case of digital sampling, actual copying always happens because sampling “is a physical (rather than intellectual) taking from a sound recording, and never accidental.”44 Improper appropriation is shown when a copied work is substantially similar to the original.45 Within this inquiry courts tended to allow the defendant to assert a de minimis use defense, for if the copying was so insignificant that the audience could never discern the similarity, then the court need not waste its time on it.46 However it is already established that sampling creates an exact copy of the sourced material.47 Apropos, even if the de minimis use doctrine were still a consideration, it would be an anachronistic test, for in sampling cases there is no question that the defendant engaged in per se copying. Regardless of whether a court approaches its inquiry from a qualitative and quantitative angle or that of an average layperson on a jury, it cannot ignore that a sample is a direct, verbatim copy. Thus, the court need not expend limited resources on an unnecessary inquiry; the court would be wiser just to ask Siri or Shazam to name the song after listening to the sample at issue. A drawn out, superfluous inquiry is the very evil that the de minimis use doctrine sought to curtail. Yet ironically, such a superfluous inquiry would take place in every sampling case in which the doctrine was used.48
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There is something to be said for retaining healthy doses of judicial discretion, but in cases of digital sampling of sound recordings, the arguments are hardly sound. Aside from the legal argument underlying the circuit split, policy seems to favor the Sixth Circuit’s interpretation over the Ninth’s. First, removing the de minimis use doctrine does not foreclose a defendant from the right to a fair trial – several important avenues remain open to a defendant even under the assumption of per se infringement. Second, the simple bright line rule adopted by the Sixth Circuit follows the spirit of the Constitution and the Copyright Act.
Regarding the former, eliminating the de minimis use defense will not deprive infringing defendants of their right to a fair trial, for Congress has already outlined that fair use is the preferred affirmative defense for copyright infringement.49 The fair use defense allows a court to consider four separate factors to determine whether or not the infringement is actionable by law, and of those four factors, the third bears an unmistakable similarity to the de minimis use defense.50 This test must include qualitative and quantitative analyses to show that what was copied was a substantial portion of the infringing work.51 However this test is presumptively more holistic and judicially expedient than the de minimis use defense that the Ninth Circuit has endorsed, for the fair use defense ensures that a court consider all four factors, neither of which is determinative alone.52 Rather than being pigeonholed into an analysis on what the average jury would think, the fair use test ensures that a judge can consider a multiplicity of factors before making a determination at the pleading stage, and the specific fact that a sample is for commercial purposes or intentionally copied does not automatically imply guilt.53
Again, the holding of the Sixth Circuit established a bright line rule for potential derivative artists – get a license or do not sample.54 The Constitution established that the basis of intellectual copyright protection in the United States is to encourage progress and protect property rights.55 Eliminating the de minimis use defense for digital sampling cases comports with these two objectives through the clarity of the Sixth Circuit’s ruling.56 If artists or their record company sponsors have clear understandings that they must get licenses before sampling, then the industry will be able to efficiently organize itself around these property rights, thus encouraging progress.57 Eliminating the rule is also logical for it inherently favors the undeniable, non-infringing, original producer of a creative work rather than the possible infringing producer of a derivative work.58 The converse that disproportionately protects infringing samples would arguably reduce the incentive for original musicians to create new and original works.59 At worst, rules favoring infringing samplers could lead to a death spiral, whereby sampling artists have less material to incorporate into their own music, resulting in less art from either the original musicians or from the samplers in the aggregate.60 Granted, that nightmare scenario is far from certain. However, given that copyright in the United States is geared towards both originality and property rights protection, tolerating the idea of that scenario seems anathema to that Constitution or Congress’ intent,61 an argument pointedly ignored by the Ninth Circuit.62
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The de minimis use doctrine is anachronistic in cases where there is no dispute that a defendant has digitally sampled an original recording and placed it into his own without a license. The nature of digital sampling itself proves the de minimis use evidentiary standard would be redundant in these cases. Moreover, a natural reading of the Copyright Act bolsters this conclusion, especially considering the Act’s evolution from its 1971 predecessor. Furthermore, the Sixth Circuit’s ruling is faithful to the text of the Constitution by allowing the industry to organize itself around clear property rights, while leaving defendants ample means to defend against infringement claims through the fair use doctrine. Given the foregoing reasons, the Supreme Court should endorse the Sixth Circuit’s reading over the Ninth Circuit’s if given the opportunity to do so.
* Lee Nisson is a 3L at New York University School of Law. The following piece is a commentary on the 2017 Problem at the Cardozo BMI Moot Court Competition. The heart of the issue involved a five-second digital sample of the fictitious Tiffany Shift song, “Diabolical Hemoglobin.” The copyright holder sued the sampler on the grounds that they did not obtain a license for the five-second section of the sound recording, thus violating their direct reproduction rights under § 106(1) of the Copyright Act. The defendant sampler in this case tried to allege that the sample was so negligible as to not be actionable – an expression of the de minimis use doctrine. However, given that the sample is always a direct copy of the original song, the question presented here is whether the de minimis use doctrine is even applicable in these digital sampling cases at all. The views expressed in answer to this question do not necessarily reflect those of the author on this point of law. Rather, this exposition is meant to be a distillation of a single side of the argument reflected within the competition.
2. The Pirates of the Caribbean: Bit Torrent’s Revenge just doesn’t have quite the same ring to it as the other titles in the series. No wonder Disney has stuck to the buccaneer theme.
3. See 17 U.S.C. § 106(1) (“the owner of the copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords”).
4. See Tracy L. Reilly, Debunking the Top Three Myths of Digital Sampling: An Endorsement of the Bridgeport Music Court’s Attempt to Afford “Sound” Copyright Protection to Sound Recordings, 31 Colum. J.L. & Arts 355, 384 (2008).
5. See id. at 358-60 (explaining that the technology needed for digital music sampling postdates the Copyright Act).
6. See, e.g., Sandoval v. New Line Cinema Corp., 147 F.3d 215, 217 (2d Cir. 1998) (“where the unauthorized use of a copyrighted work is de minimis, no cause of action will lie for copyright infringement”).
7. See Bridgeport Music, Inc. v. Dimension Films, 383 F.3d 390 (6th Cir. 2004), aff’d on reh’g 410 F.3d 792 (6th Cir. 2005).
8. See 17 U.S.C. § 114(b), which specifically disclaims any protections for imitation of the original sounds in a recording. The Act does not make explicit provisions for imitations in other mediums.
9. See Jarvis v. A & M Records, 827 F. Supp. 282, 286 (D.N.J. 1993) (explaining the process wherein an analogue waveform is converted and reproduced precisely in a new digital copy) (“digital sampling is similar to taping the original composition and reusing it in another context. In this case, then, throughout the defendants’ songs, one occasionally hears an actual piece of [the original work]”); see also Reilly, supra note 4, at 359-60.
10. See Newton v. Diamond, 388 F.3d 1189, 1192 (9th Cir. 2003) (holding that use of a work in musical composition cases must be substantial to constitute infringement); see also Lucille M. Ponte, The Emperor Has No Clothes: How Digital Sampling Infringement Cases Are Exposing Weaknesses in Traditional Copyright Law and the Need for Statutory Reform, 43 Am. Bus. L.J. 515, 516 (2006) (arguing that courts have inconsistently divined Congress’ intent in the face of digital sampling’s unique challenges for existing law).
11. See Ponte, supra note 10, at 559.
12. See Reilly, supra note 4, 365-66 (copyright infringement for sound recordings at the time of the law’s passage was a “relatively simple affair,” which required simple protections); see also Bridgeport, 410 F.3d at 800.
13. See Bridgeport, 410 F.3d at 801.
14. See Newton, 388 F.3d at 1192; see also Ringgold v. Black Entm’t Television, 126 F.3d 70, 74 (2d Cir. 1997).
15. While the de minimis use doctrine does not appear in any explicit reference within the Copyright Act, a different and storied judicial tool does – the fair use doctrine. See 17 U.S.C. § 107; H.R. Rep. No. 94-1476, at 65 (specifically endorsing the judicial doctrine of fair use into statute); see also Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994) (stating that in endorsing the fair use doctrine, Congress did not seek to change it in any way).
16. See Pub. L. 92-140; 17 U.S.C. § 114(b) (Copyright holders have the exclusive right to “duplicate the sound recording in the form of phonorecords or copies that directly or indirectly recapture the actual sounds of the recording”).
17. See 17 U.S.C. § 114(b) (emphasis added).
18. Bridgeport, 410 F.3d at 800-801 (“the significance of this provision is amplified by the fact that the Copyright Act of 1976 added the word ‘entirely’ to this language. Compare Sound Recording Act of 1971, Pub. L. 92-140, 85 Stat. 391 (Oct. 15, 1971) (adding subsection (f) to former 17 U.S.C. § 1) (“does not extend to the making or duplication of another sound recording that is an independent fixation of other sounds”). In other words, a sound recording owner has the exclusive right to “sample” his own recording. We find much to recommend this interpretation”).
19. The tricky thing about statutory interpretation is how fickle it can be, and in this case a circuit split has arisen for that very reason. The Ninth Circuit explicitly rejected the Sixth Circuit’s foregoing interpretation of § 114(b) on the grounds that it ignores the statutory scheme and the implicit limitations that § 114 places on a copyright holder. See VMG Salsoul, LLC v. Ciccone, 824 F.3d 871, 884 (9th Cir. 2016). Nevertheless, the VMG court patently ignored the evolution of the sound recording copyright protection between the 1971 Act and the 1976 Act, choosing instead to place weight on arguments of logic and the legislative history instead. Id. at 884-85.
20. Bridgeport, 410 F.3d at 800-01.
21. Id. (holding that a two second digital guitar sample constituted infringement and was not eligible for the de minimis use defense given the statutory scheme and congressional intent).
22. H.R. Rep. No. 94–1476, at 106 (emphasis added).
23. See § 114(b); Bridgeport, 410 F.3d at 802.
24. Oftentimes a sample will not be a note-for-note copy of the original recording. Rather, the sampling artist will change the work in some notable way. This often occurs by slowing down the sample’s tempo, overlaying the original sound with another, emphasizing one piece of the sample over another, etc. This does not negate that the sample is a direct copy of the original under § 106(1), and if anything, the changed part simply implicates the derivative licensing rights of an artist under § 106(2). Cf. Warner Bros. Entm’t Inc. v. RDR Books, 575 F. Supp. 2d 513 (S.D.N.Y. 2008) (considering that a reference guide to the Harry Potter works done without permission implicates the original author’s rights under both §106(1) and §106(2) of the Copyright Act). For a simple example, consider all this in a real property context. If A violates B’s property rights by chopping down B’s tree and turning it into lumber or fire wood, just because A changed the wood into another item does not negate the fact that A chopped down the tree without permission in the first place.
25. Compare Bridgeport, 410 F.3d at 802 (“when a small part of a sound recording is sampled, the part taken is something of value” when the action takes place from one fixed medium into the same type of medium), with Sandoval v. New Line Cinema Corp., 147 F.3d 215, 218 (2d Cir. 1998) (holding that indiscernible photos used to dress up a movie set do not constitute infringement, because they were not taken for their content). Another distinguishing factor in Sandoval was that the taking went from one kind of fixed medium to a different one entirely. Id. The holding of the court might have been quite different had the expropriation been sampling one part of a movie and placing it into another.
26. Cf. Reilly, supra note 4, at 378 (“samples are verbatim copies of the expression embodied in the appropriated sound recording”).
27. VMG Salsoul, LLC v. Ciccone, 824 F.3d 871, 888 (9th Cir. 2016) (Silverman, J., dissenting).
28. Congress has had ample opportunities to codify specifically a de minimis use standard into copyright laws but it has not done so since the Sixth Circuit’s holding in 2005. This cannot be ascribed to a simple case of congressional silence, for it has amended the Copyright Act acted in other instances following the creation of copyright common law. See 17 U.S.C. § 107 (codifying the fair use defense into statute). See also Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994) (“. . . fair use remained exclusively judge-made doctrine until the passage of the 1976 Copyright Act . . . Congress meant § 107 ‘to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way’ and intended that courts continue the common-law tradition of fair use adjudication”) (internal citation omitted). Cf. 29 U.S.C. § 1389 (codifying a de minimis standard into employer withdrawals from an insurance plan). See also 26 C.F.R. § 1.132-6 (2016) (codifying a de minimis standard into the income tax code for certain fringe benefits provided to an employee that are “so small as to make accounting for it . . . impracticable”); Utility Air Regulatory Group v. E.P.A., 134 S. Ct. 2427, 2449 (2014) (holding that the EPA, as a faithful agent of Congress, may establish a de minimis threshold to for an actionable amount of greenhouse gases).
29. See, e.g., Sandifer v. U.S. Steel Corp., 134 S. Ct. 870, 880 (2014) (stating in dicta that the de minimis doctrine in backpay cases is inappropriate); Wilkins v. Gaddy, 559 U.S. 34, 37-38 (2010) (the Eight Amendment precludes constitutional recognition of de minimis physical force); Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 36-37 (2004) (O’Connor, J., concurring) (“There are no de minimis violations of the Constitution–no constitutional harms so slight that the courts are obliged to ignore them”); Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 567 (2001) (“There is no de minimis exception for a speech restriction that lacks sufficient tailoring or justification”).
30. See generally Jennifer R. R. Mueller, All Mixed Up: Bridgeport Music v. Dimension Films and De Minimis Digital Sampling, 81 Ind. L.J. 435, 446 (2006).
31. See Arnstein v. Porter, 154 F.2d 464, 473 (2d Cir. 1946) (“the proper criterion on that issue is not an analytic or other comparison of the respective musical compositions as they appear on paper or in the judgment of trained musicians . . . . The question, therefore, is whether defendant took from plaintiff’s works so much of what is pleasing to the ears of lay listeners, who comprise the audience for whom such popular music is composed” (emphasis added)).
32. Id. (“whether the part taken was something of value that ‘is pleasing to the ears of lay listeners,’ not an abstract idea or insignificant fragment”) (internal citation omitted).
33. See Newton v. Diamond, 388 F.3d 1189, 1193 (9th Cir. 2003) (“a use is de minimis only if the average audience would not recognize the appropriation. … This observation reflects the relationship between the de minimis maxim and the general test for substantial similarity, which also looks to the response of the average audience, or ordinary observer, to determine whether a use is infringing”).
34. See Reilly, supra note 4, at 366; see, e.g., Grand Upright Music, Ltd. v. Warner Bros. Records, 780 F. Supp. 182 (S.D.N.Y. 1991).
35. VMG Salsoul, LLC v. Ciccone, 824 F.3d 871, 889 (9th Cir. 2016) (Silverman, J., dissenting).
36. Utility Air Regulatory Group v. E.P.A., 134 S. Ct. 2427, 2452 (2014) (Breyer, J., concurring in part and dissenting in part).
37. See Bridgeport, 410 F.3d at 802 (“for the sound recording copyright holder, it is not the ‘song’ but the sounds that are fixed in the medium of his choice. When those sounds are sampled they are taken directly from that fixed medium. It is a physical taking rather than an intellectual one.”).
38. See Reilly, supra note 4, at 358-60 (documenting the history and increasing sophistication of sampling to the point where the practice has resulted in vast catalogs of audio samples); Ponte, supra note 10, at 515-16.
39. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (“when there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief”).
40. See VMG Salsoul, 824 F.3d at 889 (Silverman, J., dissenting) (“the pertinent inquiry in a sampling case is not whether a defendant sampled a little or a lot, but whether a defendant sampled at all”).
41. See Bridgeport, 410 F.3d at 801-02.
42. Feist Publ’ns, Inc. v. Rural Tel. Serv., Co., 499 U.S. 340, 361 (1991).
43. Arnstein v. Porter, 154 F.2d 464, 469 (2d Cir. 1946) .
44. Copyright Litigation Handbook § 2:8 (2d ed. 2012); see Bridgeport, 410 F.3d at 802.
45. VMG Salsoul, 824 F.3d at 880 (“the rule that infringement occurs only when a substantial portion is copied is firmly established in the law”).
46. Newton v. Diamond, 388 F.3d 1189, 1193 (9th Cir. 2003) (upholding the affirmative defense for musical compositions, while inconclusively opining in dicta that the doctrine might apply to digital sampling).
47. Jarvis v. A & M Records, 827 F. Supp. 282, 286 (D.N.J. 1993) (“digital sampling is similar to taping the original composition and reusing it in another context”).
48. See Bridgeport, 410 F.3d at 802 (“[T]his case also illustrates the kind of mental, musicological, and technological gymnastics that would have to be employed if one were to adopt a de minimis or substantial similarity analysis. The district judge did an excellent job of navigating these troubled waters, but not without dint of great effort. When one considers that he has hundreds of other cases all involving different samples from different songs, the value of a principled bright-line rule becomes apparent”).
49. See 17 U.S.C. § 107.
50. Id. (“the factors to be considered shall include. . . (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole”).
51. See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 587 (1994) (holding that a sizable portion of a sampled guitar rift in a parody was a non-infringing work under the four-step fair use defense).
52. Id. at 585.
53. Id.; see also Bridgeport Music, Inc. v. UMG Recordings, Inc., 585 F.3d 267, 278 (6th Cir. 2009) (“Bridgeport II”) (holding that willful copying is but one factor in fair use); John S. Pelletier, Note, Sampling The Circuits: The Case For A New Comprehensive Scheme For Determining Copyright Infringement As A Result Of Music Sampling, 89 Wash. U. L. Rev.,, 1161, 1192 (2012).
54. See Bridgeport Music, Inc. v. Dimension Films, 383 F.3d 390 (6th Cir. 2004), aff’d on reh’g 410 F.3d 792, 801 (6th Cir. 2005). In contrast to the Sixth Circuit, some courts have been a bit more forceful in the way in which they view the issue. For example, in a case in which the defendant sampled three words from the plaintiff’s song, “Alone Again, Naturally,” Judge Duffy infamously and ominously began his opinion with the biblical reference “[t]hou shall not steal.” See Grand Upright Music, Ltd. v. Warner Bros. Records, 780 F. Supp. 182, 183 (S.D.N.Y. 1991). Judge Duffy even went so far as to recommend that the United States Attorney consider the case for possible criminal sanctions. Id. at 185. Though this case is considered an outlier opinion due to the degree of sanction applied to the infringing plaintiff in without much reference to substantive law, we can infer thus infer a rational degree of moderation in the Sixth Circuit’s own opinion in Bridgeport. See Pelletier, supra note 53, at 1178-79.
55. See U.S. Const. Art. I, § 8, cl. 8 (Congress shall grant these protections to “promote the Progress of Science and useful Arts, by securing or limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”).
56. See Bridgeport, 410 F.3d at 801.
57. See Reilly, supra note 4, at 398 (“any rule favoring samplers over uncompensated original musicians is a ‘self-destructive rule’ because, eventually, artists will be less inclined to produce original music that serves as the raw material for rap, hip hop, and other ‘mechanically based music forms’”). In fact, the hip-hop industry as a whole has already voluntarily taken upon itself to seek out licenses for any artist looking for a digital sample, and artists today have ample resources available to them to do just that before they cut a track. See generally Michael Gallant, Practice Safe Sampling – Copyright, Licensing and Your Music, Disc Makers Blog (Jan. 7, 2013), http://blog.discmakers.com/2013/01/copyright-licensing-and-your-music/.
58. See Reilly, supra note 4, at 397-98.
59. See Ponte, supra note 10, at 530.
60. Id.; Bridgeport, 410 F.3d at 803-04.
61. U.S. Const. Art. I, § 8 (“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” (emphasis added)); Reilly, supra note 4, at 372 (“copyright law in the United States is primarily concerned with protecting the pecuniary interests of copyright owners rather than the moral rights of author-creators”).
62. See VMG Salsoul, LLC v. Ciccone, 824 F.3d 871, 887 (9th Cir. 2016) (“Those [policy] arguments are for a legislature, not a court.”).