Contributions

Sampling A Song Without a License? Yeah, That’s Still Illegal

By Lee Nis­son1

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.

* * * * *

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

* * * * *

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.

Notes:

1. 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 , 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.”).