Copyhype

The news hit on Friday that recording artist Robin Thicke (along with Pharrell Williams and Clifford Harris) has filed a lawsuit against Bridgeport Music and Marvin Gaye’s family seeking a declaration that his hit song “Blurred Lines” did not infringe the copyright in Funkadelic’s song “Sexy Ways” or the Marvin Gaye classic “Got to Give it Up.”

A complaint for declaratory relief is a pre-emptive filing to seek judicial determination of contested legal rights when litigation is anticipated; in this case, Thicke alleges that both Bridgeport and Gaye notified him that “Blurred Lines” infringed their copyright and if he didn’t provide a monetary settlement, they intended “to initiate litigation for copyright infringement” against him.

The filing has attracted considerable attention. While it is not clear what the basis for the infringement claims are, it does not appear to be the case that “Blurred Lines” sampled any portion of the two songs, nor did it copy any melody or lyrics. Instead, the claims would appear to be directed toward the similarities in style and groove of the tunes. ¹I immediately thought of Gaye’s “Got to Give it Up” the first time I heard “Blurred Lines”, as did many others based on the comments on various sites discussing the story — though, aside from the use of falsetto singing in both, I see little similarity with the Funkadelic song. See Ben Sisario, “Songwriters Sue to Defend a Summer Hit”, New York Times (August 16, 2013) for statements indicating “Got to Give it Up” served as an inspiration for the song, but nothing more.

It would make for an interesting infringement analysis — but if that’s what you were expecting to read here, you’ll be disappointed.

Instead, I want to look at a statement in one of the news stories covering the story. In the Quartz, writer Adam Pasick says, “It’s pretty well established by now that unauthorized sampling—the act of copying an actual recorded sound, no matter how brief—is a no-no.”

This is incorrect.

I don’t mean to pick on Pasick, his remark is actually representative of a commonly held belief when we discuss copyright issues related to digital sampling. That belief typically starts with a 2005 Sixth Circuit court decision.

Substantial Similarity and Sound Recordings

But let’s back up for a second.

Generally, to show copyright infringement, you have to show first that you own a valid copyright and then that the alleged infringer engaged in actionable copying. The latter is an intensely fact specific inquiry. Very broadly, courts will look at whether the two works are substantially similar. This is a qualitative and quantitative question; that is, did the defendant copy enough of the protectable elements of the plaintiff’s work to constitute infringement? Recall that copyright only protects expression — not ideas, facts, or stock elements — so not all copying is actionable copying. This is also typically where courts will consider whether the copying is de minimis — too trifling for the law to be concerned with. ²3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.03[F][5] at 13-146 (1996); Newton v. Diamond, 349 F.3d 591, 594 (9th Cir. 2003); Ringgold v. Black Entertainment Television, 126 F.3d 70, 74 (2nd Cir. 1997); MiTek Holdings v. Arce Engineering, 89 F.3d 1548, 1560 (11th Cir. 1996).

That is what the Middle District Court of Tennessee did in Bridgeport Music v. Dimension Films when confronted with a copyright infringement case involving the unauthorized digital sampling of a two-second portion of “Get off Your Ass and Jam”. (Yes, the same Bridgeport Music that is alleged to have complained to Thicke of infringement here.) The court concluded that “the sample here does not rise to the level of a legally cognizable appropriation” and dismissed the infringement claims.

On appeal, the Sixth Circuit reversed the district court’s ruling and departed from the traditional infringement inquiry with regard to sound recordings. ³Bridgeport Music v. Dimension Films, 410 F.3d 792 (6th Cir. 2005).

This is one of the first cases involving digital sampling to reach an appellate court, arising from Bridgeport Music’s original complaint against over 800 defendants. ⁴See Tim Wu, “Jay-Z Versus the Sample Troll: The shady one-man corporation that’s destroying hip-hop“, Slate (Nov. 16, 2006), for one take on Bridgeport’s operations and these lawsuits. The court, feeling a prerogative to establish a “bright-line test” to add “clarity to what constitutes actionable infringement with regard to the digital sampling of copyrighted sound recordings”, held that the doctrines of de minimis and substantial similarity don’t apply to digital sampling of sound recordings — any taking of a sound recording, no matter how small or how much it is altered, is infringement.

The Sixth Circuit premised this holding largely on the language of the Copyright Act’s provision dealing with the exclusive right of a sound recording’s copyright owner. The relevant section states that “The exclusive rights of the owner of copyright in a sound recording … do not extend to the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording.” ⁵17 USC § 114(b). The court took this to mean that “By using the words ‘entirely of an independent fixation’ in referring to sound recordings which may imitate or simulate the sounds of another, Congress may have intended that a recording containing any sounds of another recording would constitute infringement.”

Burning Bridgeport

This holding has been cited far more in academic literature (the vast majority critical of it) than by other courts — the court’s expository declaration, “Get a license or do not sample,” raised the hackles of many who are predisposed to see copyright as an impediment to creativity. But the decision deserves criticism for the far simpler fact that it is wrong. Professor Nimmer, author of one of the seminal treatises on copyright, calls the holding a logical fallacy: “By validating entire sound-alike recordings, the quoted sentence contains no implication that partial sound duplications are to be treated any differently from what is required by the traditional standards of copyright law — which, for decades prior to adoption of the 1976 Act and unceasingly in the decades since, has included the requirement of substantial similarity.” ⁶4-13 Nimmer on Copyright § 13.03. Fellow copyright treatise author William Patry has also criticized Bridgeport’s holding. See The Sixth Circuit Reaffirms Controversial Sound Recording Opinion.

And at least one federal court has agreed with Nimmer’s view. ⁷Interestingly, a New York state court also sided with Nimmer when asked to adopt Bridgeport’s rule in a case involving digital sampling of a common law copyright. EMI Records Ltd v Premise Media Corp, 2008 N.Y. Misc. LEXIS 7485(N.Y. Sup. Ct. 2008). The Southern District Court of Florida devoted a significant amount of space to explaining why it refused to follow Bridgeport’s lead in removing the substantial similarity requirement for sound recording claims in Saregama India v. Mosley. ⁸687 F. Supp. 2d 1325 (S.D. Fla. 2009). There, hip-hop producer Timbaland was sued for infringement after he used a one-second snippet of the Indian sound recording “Bagor Mein Bahar Hai” in the song “Put You on Your Game”, recorded by rapper The Game.

In its analysis of the infringement claim, the court first noted that “the Sixth Circuit’s decision to carve out an exception for sound recordings has not been followed in this Circuit. Indeed, the Eleventh Circuit imposes a ‘substantial similarity’ requirement as a constituent element of all infringement claims… Therefore, although factually similar, the Bridgeport court’s exception for sound recordings presents a departure from Eleventh Circuit precedent.”

It then rejected Saregama’s argument to adopt the Bridgeport approach, taking the time to explain that it is not clear “why the Bridgeport court’s reading of Section 114(b) follows inexorably from its text.” After its own analysis, the District Court concluded that “Section 114(b) does not seem to support the distinction between sound recordings and all other forms of copyrightable work that the Bridgeport court imposes.”

So, the legal effect of Bridgeport on digital sampling has been vastly overstated. And, as some have observed, the effect of the legal decision on industry practice has also been overstated. ⁹See, for example, Thomas W. Joo, Remix Without Romance, 44 Connecticut Law Review 415 (2011).

Digital Sampling and Copyright Law

In other words, it is inaccurate to say that it is “pretty well established” that “the act of copying an actual recorded sound, no matter how brief… is a no-no.” In the seven years since Bridgeport, courts outside the Sixth Circuit (which, it should be noted, is not a particularly influential jurisdiction when it comes to copyright law to begin with) apparently continue to look at substantial similarity between an original sound recording and the sampling work, including considering whether the use is de minimis.

And we haven’t even gotten to fair use yet. Despite some misconceptions, the Sixth Circuit in Bridgeport hadn’t decided whether digital sampling can be fair use. As the court said, “Since the district judge found no infringement, there was no necessity to consider the affirmative defense of ‘fair use.’ On remand, the trial judge is free to consider this defense and we express no opinion on its applicability to these facts.” There’s no reason why the fair use defense would not apply to sound recordings the same way it would apply to other copyrightable subject matter — and considering how expansively courts have applied the defense recently, ¹⁰See, for example, Cariou v. Prince: Transforming Fair Use; Seltzer v. Green Day, Nos. 11-56573 and 11-57160 (9th Cir. 2013). it would not be surprising to see a vast number of unauthorized samples be able to successfully claim fair use.

It will be interesting to see how Thicke fares in his declaratory relief suit — though it is often the case that high-profile sampling lawsuits like these are quietly settled or quickly dismissed, so it’s not likely that we’ll see any substantive court rulings. But it’s important to keep in mind that it is simply not the case that there is any bright-line rule against digital sampling. The Bridgeport decision is an overrated aberration; copyright’s traditional doctrines are normally flexible enough to distinguish between appropriate use of existing works and misappropriation.