Oregon Volunteer Lawyers for the Arts

In Defense of Art

In Defense of Art is the official blog of Oregon Volunteer Lawyers for the Arts

Lawful Digital Sampling Comes to the West Coast

by Lydia Loren

The Ninth Circuit Court of Appeals, which covers all of the western states, ruled today that digital sampling of a brief snippet from a sound recording did not constitute copyright infringement.

In the lawsuit, the plaintiff had alleged that Madonna’s song Vogue included a snippet from an earlier recorded song known as Love Break. The snippet allegedly copied was a .23-second segment of horns. As such a small segment, the trial court had relied on a doctrine known as “de minimis copying” to rule that even if plaintiff’s allegations of copying were true, there was no infringement. (De minimis means that the copying was too trivial or minor to merit consideration). The Ninth Circuit affirmed the trial court’s decision, concluding that there could be no infringement as a matter of law. (full opinion).

The ruling is important because over ten years ago the Sixth Circuit Court of Appeals (a circuit that includes Tennessee, and thus the music hotbed of Nashville) had ruled that the doctrine of “de minimis copying” could not be applied in the context of digital sampling. Instead it clearly ruled: “Get a license or do not sample.” That case, Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005), has been criticized by many, but no appellate court, until now, had rejected that approach.

So, does this mean musicians on the west coast are free to sample at will? No. The de minimis copying doctrine applies only if the average audience would not recognize that the sample was taken from an earlier work. So, you can sample only small parts of earlier recordings and stay within the bounds of de minimis copying. Additionally, the Ninth Circuit was clear that the recognizability of the sample was important. The court characterized what the producer of Vogue, Shep Pettibone, had done to the .23 second sample: “he isolated the horns by filtering out the other instruments playing at the same time; he transposed it to a different key; he truncated it; and he added effects and other sounds to the chord itself.” The court then concluded that “Even if one grants the dubious proposition that a listener recognized some similarities between the horn hits in the two songs, it is hard to imagine that he or she would conclude that sampling had occurred.”