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THE DE MINIMIS REQUIREMENT AS A

SAFETY VALVE: COPYRIGHT,

CREATIVITY, AND THE SAMPLING OF

SOUND RECORDINGS

HRISTOPHER

ELDON

NTRODUCTION

................................................. 1262

AMPLING AND THE

............................... 1265

A. Sampling and Its Importance ........................ 1265

B. Why Sampling Raises Copyright Issues.............. 1268

C. The De Minimis Requirement ....................... 1271

D. How the De Minimis Requirement Furthers

Creativity ........................................... 1273

1. Why Copyright Can Threaten Musical

Creativity ....................................... 1273

The De Minimis Requirement as a Safety Valve

. 1278

II.

IRCUIT

PLIT

.......................................... 1280

A. Bridgeport .......................................... 1280

B. VMG Salsoul ....................................... 1284

III.

INIMIS

EQUIREMENT

HOULD

PPLY TO

THE

AMPLING OF

OUND

ECORDINGS

................ 1286

A. Why Do We Have Copyright? ...................... 1286

B. Statutory Text and Structure......................... 1288

C. Legislative History .................................. 1291

D. Policy ............................................... 1294

1. Alternatives to Unlicensed Sampling Fall Short . . 1294

a. Recreating the Sound ....................... 1295

b. Licensing ................................... 1296

c. Sampling Unprotected Works............... 1300

2. The Arguments Supporting Bridgeport Are

Unpersuasive .................................... 1301

ONCLUSION

................................................... 1305

* Copyright

2017 by Christopher Weldon. J.D., 2017, New York University School

of Law; B.A., 2010, University of California, Berkeley. I am grateful to Professor Christo-

pher Jon Sprigman for his guidance and insightful comments. I would also like to thank the

staff of the New York University Law Review, especially Claire Schupmann and Leticia

Quezada, for all of their assistance.

1261

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1262 NEW YORK UNIVERSITY LAW REVIEW [Vol. 92:1261

NTRODUCTION

“[H]ip-Hop literally reintroduced the world to George Clinton and

Parliament-Funkadelic.”

Kembrew McLeod & Peter DiCola, 2011

Before George Clinton’s songs became a favorite of hip-hop art-

ists, you might have had a hard time tracking down his albums.

Despite his superstar status,

“[b]y the 1980s . . . most of Clinton’s

records were out of print and in danger of being forgotten.”

But as

hip-hop artists began to include samples of Clinton’s works in their

own, this changed.

As Clinton said, “it was the way to get back on the

radio.”

Clinton’s two main groups, Parliament and Funkadelic, are

now the 22nd and 35th most sampled artists of all time, respectively.

Many of these sampling artists did not get a license, perhaps

because this was the prevailing practice among hip-hop artists at the

time,

or in some cases because the samples were de minimis and thus

not infringing.

Despite Clinton’s gratitude to samplers, one of his

songs—“Get Off Your Ass and Jam”—was at the center of the

Bridgeport case,

which ended the nationwide rule that the de minimis

EMBREW

EOD

& P

ETER

OLA

, C

REATIVE

ICENSE

: T

AW AND

ULTURE OF

IGITAL

AMPLING

93 (2011) (quoting journalist and hip-hop historian Jeff

Chang).

See George Clinton, B

IOGRAPHY

COM

, http://www.biography.com/people/george-

clinton-537674#synopsis (last visited June 25, 2017) (“Clinton and Parliament-Funkadelic

released more than 40 R&B hit singles and several gold and platinum albums during the

’70s . . . . with . . . four singles topping the charts.”). Clinton’s two main musical groups—

Parliament and Funkadelic—were inducted into the Rock and Roll Hall of Fame in 1997.

Parliament Funkadelic, R

OCK

& R

OLL

ALL OF

AME

, https://www.rockhall.com/

inductees/parliament-funkadelic (last visited June 25, 2017).

W. Michael Schuster, Fair Use, Girl Talk, and Digital Sampling: An Empirical Study

of Music Sampling’s Effect on the Market for Copyrighted Works, 67 O

KLA

. L. R

. 443,

445 (2015).

See M

EOD

& D

OLA

, supra note 1, at 93 (“Parliament-Funkadelic records

remained out of print until artists began sampling them on songs like De La Soul’s ‘Me,

Myself, and I.’”).

Id. (quoting George Clinton).

Most Sampled Artists, W

AMPLED

, http://www.whosampled.com/most-sampled-

artists/ (last visited June 25, 2017). Combining their numbers would put them at 1640

samples, ranking seventh on this list. Id.

See infra notes 88–90 and accompanying text (describing the “golden age of

sampling”).

See infra Part I.C.

Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 801 (6th Cir. 2005). As an

indirect result of Bridgeport’s litigiousness, this Note cites several cases whose caption

begins with Bridgeport. All references to Bridgeport refer to Bridgeport Music, Inc. v.

Dimension Films unless otherwise stated.

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October 2017] THE DE MINIMIS REQUIREMENT AS A SAFETY VALVE 1263

requirement applies to sound recordings and has had an “extraordi-

narily chilling” impact on the music industry.

Bridgeport arose not because Clinton was feeling particularly

litigious, but rather because “he lost ownership of much of his catalog

in the early 1990s” as a result of “shady music-industry shenani-

gans.”

The copyrights were thus held by the plaintiff Bridgeport

Music (and affiliated entity Westbound Records),

a “sample troll”

that “hold[s] portfolios of old rights (sometimes accumulated in

dubious fashion) and use[s] lawsuits to extort money from successful

music artists for routine sampling, no matter how minimal or

unnoticeable.”

Taking this trolling

to a whole other level,

Bridgeport filed over eight hundred lawsuits, including one suing

Clinton “for sampling his own song.”

Many of these suits involved

small samples that were arguably de minimis. For any type of copy-

rightable work besides sound recordings, takings only infringe if they

are more than de minimis: “courts consistently have applied the [de

minimis] rule in all cases alleging copyright infringement.”

But the

law is not so uniform when it comes to sound recordings.

Does this standard rule that merely de minimis takings are not

Two Courts of Appeal have directly addressed this question. The first

is the Sixth Circuit, which held in Bridgeport Music, Inc. v. Dimension

See M

EOD

& D

OLA

, supra note 1, at 141–43 (quoting musicologist Lawrence

Ferrara).

See id. at 93 (“Th[e] loss stemmed from an allegedly fabricated contract that

transferred many of Clinton’s composition copyrights . . . to Armen Boladian of Bridgeport

Music, a copyright aggregator. This document—which a New York court ruled was a cut-

and-paste job—relieved Clinton of his publishing rights for a ridiculously small sum of

money, despite the fact that these copyrights were extremely valuable.”). Clinton put it

more bluntly, saying “[t]he guy just stole them.” Id. (referring to Armen Boladian, who

founded Westbound Records, the label which released some of Clinton’s albums). Clinton

later regained some of these copyrights. Id. at 94.

Bridgeport, 410 F.3d at 796.

Tim Wu, Jay-Z Versus the Sample Troll, S

LATE

: C

ULTUREBOX

(Nov. 16, 2006, 1:50

PM), http://www.slate.com/articles/arts/culturebox/2006/11/jayz_versus_the_sample_troll

.html.

The term comes from the patent world, where it refers to the practice of companies

that buy existing patents not to produce the patented invention, but rather to file or

threaten lawsuits. See Patent Trolls, E

LECTRONIC

RONTIER

OUNDATION

, https://

www.eff.org/issues/resources-patent-troll-victims (last visited June 25, 2017) (“A patent

troll uses patents as legal weapons, instead of actually creating any new products or coming

up with new ideas. Instead, trolls are in the business of litigation (or even just threatening

litigation). They often buy up patents cheaply from companies down on their luck who are

looking to monetize what resources they have left, such as patents.”).

See M

EOD

& D

OLA

, supra note 1, at 94.

VMG Salsoul, LLC v. Ciccone, 824 F.3d 871, 881 (9th Cir. 2016) (“Other than

Bridgeport and the district courts following that decision, we are aware of no case that has

held that the de minimis doctrine does not apply in a copyright infringement case.”).

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1264 NEW YORK UNIVERSITY LAW REVIEW [Vol. 92:1261

Films that a de minimis taking from a sound recording violates the

exclusive rights of the copyright holder.

The second is the Ninth

Circuit, which explicitly rejected Bridgeport in VMG Salsoul, LLC v.

Ciccone.

There, the court held that “the ‘de minimis’ exception

applies to infringement actions concerning copyrighted sound record-

ings, just as it applies to all other copyright infringement actions.”

The Ninth Circuit’s holding that the de minimis threshold applies

to sound recordings is both the better reading of the Copyright Act

and the superior policy outcome. First, that reading better comports

with the language and statutory structure of the Act, which does not

indicate that a different rule should apply to sound recordings than to

other works of authorship. Second, the legislative history makes clear

that infringement takes place only when a substantial portion is repro-

duced. Third, applying a de minimis requirement to sound recordings

will better promote creativity in the music industry than the rule

adopted in Bridgeport.

While no petition for certiorari has been filed, the issue is likely

to trigger Supreme Court review in due time because two Courts of

Appeal have ruled in opposite ways on an important issue of federal

law.

Should the Supreme Court address this, it ought to resolve the

circuit split by upholding the Ninth Circuit’s approach and finding that

reproductions of sound recordings do not violate a copyright owner’s

exclusive rights when the taking is a de minimis one—the same rule

that has successfully been applied to all other types of copyrightable

works.

Scholars have often criticized Bridgeport’s result and reasoning.

While this Note does so as well, it also makes two novel contributions.

410 F.3d 792, 801 (6th Cir. 2005) (“[A] sound recording owner has the exclusive right

to ‘sample’ his own recording.”). Under Bridgeport, when the defendant concedes

sampling, evaluating whether the second work is substantially similar is unnecessary. See

id. at 798 (“[Plaintiff] claim[s] that no substantial similarity or de minimis inquiry should be

undertaken at all when the defendant has not disputed that it digitally sampled a

copyrighted sound recording. We agree . . . .”).

824 F.3d at 886 (“Because we conclude that Congress intended to maintain the ‘de

minimis’ exception for copyrights to sound recordings, we take the unusual step of creating

a circuit split by disagreeing with the Sixth Circuit’s contrary holding in Bridgeport.”).

Id. at 874.

In deciding whether to grant certiorari, the Court considers whether “a United States

court of appeals has entered a decision in conflict with the decision of another United

States court of appeals on the same important matter.” S

. C

. R. 10(a).

See, e.g., Reuven Ashtar, Theft, Transformation, and the Need of the Immaterial: A

Proposal for a Fair Use Digital Sampling Regime, 19 A

. L.J. S

. & T

ECH

. 261, 292

(2009) (“Bridgeport Music’s bright-line rule negating de minimis use runs counter to the

doctrine’s extensiveness and Congress’s express intentions.”); Julian Azran, Note, Bring

Back the Noise: How Cariou v. Prince Will Revitalize Sampling, 38 C

OLUM

. J.L. & A

RTS

69, 106 (2014) (“The bright-line rule in Bridgeport has been widely criticized and should be

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October 2017] THE DE MINIMIS REQUIREMENT AS A SAFETY VALVE 1265

First, it evaluates the newly created circuit split, which postdates those

pieces. Second, it analyzes the connection between sampling, crea-

tivity, and the de minimis requirement, showing how the strict rule of

Bridgeport has stifled creativity by ushering in a culture of requiring

licensing for even de minimis samples.

Part I begins with an introduction to sampling, its importance in

music, and an outline of the relevant doctrines of copyright law—

including the de minimis requirement. It then explains how the de

minimis requirement functions as a safeguard that protects creativity

against what would otherwise be the excesses of copyright law. Part II

explains the Bridgeport and VMG Salsoul cases. Part III explains why

the Ninth Circuit’s approach better comports with the Copyright Act’s

text, structure, and legislative history, and is superior on policy

grounds.

AMPLING AND THE

A. Sampling and Its Importance

Sampling is “the incorporation of short segments of prior sound

recordings into new recordings.”

The practice began in analog form

in 1960s Jamaica, “when disc jockeys (DJs) used portable sound sys-

tems to mix segments of prior recordings into new mixes, which they

would overlay with chanted or ‘scatted’ vocals.”

Unsurprisingly, dig-

ital technology has made sampling a much easier endeavor: software

programs allow artists to simply copy, alter, and incorporate samples

overturned.”). For a defense of Bridgeport, 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 C

OLUM

. J.L. & A

RTS

355,

357 (2008).

Newton v. Diamond, 388 F.3d 1189, 1192 (9th Cir. 2004). For a history of music

sampling and its connection to copyright law, see Wayne M. Cox, Note, Rhymin’ and

Stealin’? The History of Sampling in the Hip-Hop and Dance Music Worlds and How U.S.

. S

PORTS

& E

. L.J. 219

(2015).

Newton, 388 F.3d at 1192.

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1266 NEW YORK UNIVERSITY LAW REVIEW [Vol. 92:1261

into their creations.

The resulting sounds may be very similar to the

original, or sufficiently altered to make them almost unrecognizable.

The cultural import of sampling comes from two considerations:

first, the connection between sampling and creativity, and second, the

importance of sampling to many forms of modern music.

“With the

rise of disco, hip-hop, and electronic dance music, transformative

appropriation has become the most important technique of today’s

composers and songwriters,” writes musicologist Joanna Demers.

One reason for this is simply that sampling has helped to democratize

music by allowing those without expensive equipment or formal

training to create works just as compelling as those of more conven-

tional professionals.

But of greater weight is that sampling allows for the expression of

new meanings that could not be easily communicated through other

means. “[S]ampling may have a myriad of purposes and effects, from

See 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 A

. B

. L.J. 515, 515–16 (2006) (“With today’s advanced digital

equipment . . . a musician or sound engineer can easily record, distort, or manipulate the

pitch, tempo, and tone of any piece of digital music before incorporating these bits and

pieces into new music.”); Ryan Lloyd, Note, Unauthorized Digital Sampling in the

Changing Music Landscape, 22 J. I

NTELL

. P

ROP

. L. 143, 153 (2014) (“‘Noisepad,’

developed in 2012, further eliminated the resources and steps needed to create a sample,

by allowing amateur artists to craft a digital sample with little more than an MP3 and an

iPhone or iPad.”).

Lloyd, supra note 24, at 164 (“[M]any samples distort and manipulate the excerpt of

the original sound, sometimes even to the point where it is unrecognizable . . . .”); see also

Scott Parsons, How to Use Samples in Your Tracks Without Getting Sued, LANDR B

LOG

http://blog.landr.com/use-samples-tracks-without-getting-sued/ (last visited June 25, 2017)

(“Apply effects to your sample. Reverse it. Pitch it down. Layer it. Or bury it in the

mix. . . . Sure, the original sound is in there somewhere. But you’ve made it your own and

it’ll be hard to hear any trace of the original.”).

“[S]ampling certainly plays a vital role in the creation of music in a number of

genres.” John Schietinger, Note, Bridgeport Music, Inc. v. Dimension Films: How the Sixth

Circuit Missed a Beat on Digital Music Sampling, 55 D

AUL

L. R

. 209, 212–15 (2005)

(giving examples from hip-hop, electronic music, trip-hop, and rock); see also Tonya M.

Evans, Sampling, Looping, and Mashing . . . Oh My!: How Hip Hop Music Is Scratching

More Than the Surface of Copyright Law, 21 F

ORDHAM

NTELL

. P

ROP

. M

EDIA

& E

. L.J.

843, 856–57 (2011) (“The sampler has ingrained aesthetic value to hip hop music and,

ultimately, to music creation as a whole. To understand the importance and pervasive

presence of digital sampling in hip hop on a broader scale one need only turn to the

Billboard charts of the most prominent albums. In 1989 only eight of the top 100 albums

contained samples but by 1999 almost one-third of the Billboard 100 incorporated samples

in some capacity.”).

OANNA

EMERS

, S

TEAL

HIS

USIC

: H

NTELLECTUAL

ROPERTY

FFECTS

USICAL

REATIVITY

9 (2006).

See M

EOD

& D

OLA

, supra note 1, at 4–5 (“Sampling has had a leveling effect

on music making by allowing virtually anyone to make music, even those without formal

training.”); see also infra note 200 (noting free and inexpensive software packages for

sampling).

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October 2017] THE DE MINIMIS REQUIREMENT AS A SAFETY VALVE 1267

giving new meaning to work to paying homage to past musicians,

evoking a time, person or place, or aiming for a certain musical

aesthetic.”

Take for example Jay-Z’s “Hard Knock Life (Ghetto Anthem)”

which extensively samples “It’s a Hard Knock Life” from the musical

Annie to “convey[ ] [Jay-Z’s] own understanding of what it means to

live a ‘hard knock life.’”

In doing so, Jay-Z “juxtaposes . . . divergent

meanings in a way that would be impossible without using the sample”

and “communicate[s] with a broader audience using multiple layers of

meaning.”

As Azran writes: “‘Hard Knock Life’ unsettles the

meaning of the original in the viewer’s mind and thus makes a com-

ment on the original work, adding ‘new expression, meaning or mes-

sage.’”

Or take Public Enemy’s “Fight the Power,” which uses

“sampled loops of melodies, vocals, speeches, and other noises” to

create “an assemblage of a quarter century of sounds that invoke the

black experience.”

These examples help explain why sampling has

been called “aural storytelling.”

Given the importance of sampling to many forms of musical crea-

tivity,

its prevalence should not be surprising. Far from being con-

fined to rap or hip-hop, sampling is a key building block of songs in a

wide range of genres. WhoSampled, a user-driven website which com-

piles info on sampling, identifies more than 251,000 songs that include

Ashtar, supra note 21, at 284; see also M

EOD

& D

OLA

, supra note 1, at 98

(describing sampling as “an intergenerational [exchange] in which younger musicians

engage with and recontextualize earlier forms of music”).

Azran, supra note 21, at 84 (“[A]rtists sample as a way of re-contextualizing their

social environment.”).

Id.; see also M

EOD

& D

OLA

, supra note 1, at 88 (“[T]he effect of hearing a

familiar recording of children’s voices in a hip-hop song was for many listeners both jarring

and intoxicating and it is this quality that arguably made ‘Hard Knock Life (Ghetto

Anthem)’ a hit.”).

Azran, supra note 21, at 84 (quoting Campbell v. Acuff-Rose Music, Inc., 510 U.S.

569, 579 (1994)).

EOD

& D

OLA

, supra note 1, at 99 (paraphrasing Chuck D of Public Enemy);

see also id. at 99–100 (“The interesting thing is that [Public Enemy] used something as cold

and brittle as computer chips, and samplers, to give this kind of resurrection and life to the

voices of pain of black people—as uttered in song and voice.” (quoting Harry Allen of

Public Enemy, discussing their song “Show ‘Em Whatcha Got”)).

Id. at 100.

Admittedly, some more traditional artists decry this idea. Mark Volman of the ‘60s

rock group The Turtles argues that “[s]ampling is just a longer term for theft.” Id. at 63

(quoting separately music lawyer Anthony Berman as saying, “[t]he view on the traditional

side was that sampling is a very lazy way of making music, of songwriting”). This

characterization contrasts with the high degree of effort good sampling often requires. See

id. at 24 (quoting Hank Shocklee of Public Enemy as saying, “we had to comb through

thousands of records to come up with maybe five good pieces,” and noting that a single

drum track might include parts of a dozen different beats).

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1268 NEW YORK UNIVERSITY LAW REVIEW [Vol. 92:1261

samples.

It lists more than 6000 such works from 2016 alone,

including songs by top artists such as Rihanna, David Guetta, Bastille,

and Bon Iver.

Sampling is sufficiently ubiquitous that it is hard to

imagine what some genres would sound like without sampling.

B. Why Sampling Raises Copyright Issues

Before examining the circuit split in depth, it is important to dis-

cuss why the legal issue arises. Copyright protects “original works of

authorship fixed in any tangible medium of expression.”

These

include both “musical works,” often called musical compositions, and

“sound recordings.”

The two copyrights are distinct and may be held

by different owners. Consequently, a sampler can infringe the copy-

right in the sound recording without infringing the copyright in the

musical work, or vice versa.

The sampler thus may need licenses for

both.

The musical work copyright covers “an artist’s music in written

About Us, W

AMPLED

, http://www.whosampled.com/about/ (last visited June 25,

2017).

Browse 2016 Music that Uses Samples, W

AMPLED

, http://www.whosampled.com/

browse/year/2016/ (last visited June 25, 2017) (scattered throughout the early pages of the

results).

See Jeremy Scott Sykes, Note, Copyright—The De Minimis Defense in Copyright

Infringement Actions Involving Music Sampling, 36 U. M

. L. R

. 749, 756 (2006)

(“Though sampling is widespread, the practice is prominently featured in hip-hop and

nearly all subgenres of electronic and dance music to such an extent that these genres

would likely not exist without sampling.”); Andrew Blake Sorkin, A Brief Introduction to

Sampling Audio, T

’

ARDWARE

(Oct. 24, 2005, 12:06 PM), http://www.tomshardware.

com/reviews/a-introduction-sampling-audio,1155.html (“The quintessential building block

for most songs made in the last 15 years, there is nothing more ubiquitous than the sample.

Almost every recent rock, hip hop, R&B, pop, and electronic music track now incorporates

the use of samples.”).

17 U.S.C. § 102(a) (2012). The power to establish copyrights derives from the

ONST

. art. I, § 8, cl. 8 (giving Congress the power “[t]o

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”). The

requirement of originality is a very low bar. See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,

499 U.S. 340, 345 (1991) (“Original, as the term is used in copyright, means only that the

work was independently created by the author (as opposed to copied from other works),

and that it possesses at least some minimal degree of creativity.”).

17 U.S.C. § 102(a)(2), (7).

See Ponte, supra note 24, at 524 (“The copyright to the musical score does not

include ownership of the sound recording while the copyright to the sound recording does

not extend to the musical composition itself.”).

Ashtar, supra note 21, at 269–70 (“[T]o sample a song, one needs rights to both

‘master use’ (recording) and ‘synchronization’ (composition) licenses . . . .”). There is a

compulsory licensing scheme under § 115 for musical compositions, for use by cover songs.

17 U.S.C. § 115 (2012). However, because it is limited to arrangements that do “not change

the basic melody or fundamental character of the work,” § 115(a)(2), the practical

significance for sampling is minimal. See also Ashtar, supra note 21, at 271 (“[N]othing in

the law compels copyright holders to grant licenses to prospective samplers or users of

composition rights (for any quotation other than straightforward covering) . . . .”).

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October 2017] THE DE MINIMIS REQUIREMENT AS A SAFETY VALVE 1269

form,” and “protects the generic sound that would necessarily result

from any performance of the piece.”

Traditionally, this written form

was sheet music, though when songs are recorded without sheet

music, the composition is created simultaneously with the recording.

By contrast, the sound recording copyright protects “the actual sounds

fixed in the recording.”

The owner of each copyright receives several exclusive rights

under 17 U.S.C. § 106. The critical one with regards to sampling is the

right “to reproduce the copyrighted work in copies or pho-

norecords.”

In order to establish a prima facie case for violation of

this reproduction right, the plaintiff must prove two propositions:

“ownership of a valid copyright” and “copying of constituent elements

of the work that are original.”

The requirement of copying is itself a

two-part inquiry: the plaintiff must establish the fact of copying and

also show that the copying is legally actionable.

For copying to be

actionable, there must be “substantial similarity” between the two

works, meaning the copying must have been “quantitatively and quali-

Newton v. Diamond, 204 F. Supp. 2d 1244, 1249 (C.D. Cal. 2002), aff’d, 349 F.3d 591

(9th Cir. 2003), opinion amended and superseded on denial of reh’g, 388 F.3d 1189 (9th Cir.

2004), and aff’d, 388 F.3d 1189 (9th Cir. 2004); accord Bridgeport Music, Inc. v. Still N the

Water Publ’g, 327 F.3d 472, 475 n.3 (6th Cir. 2003) (per curiam) (“A musical composition

consists of rhythm, harmony, and melody.”). The statute does not define what is meant by

a “musical work.” See 17 U.S.C. § 101.

See Bridgeport Music, Inc. v. UMG Recordings, Inc., 585 F.3d 267, 276 (6th Cir.

2009) (“The sheet music, however, was created long after the song was composed. . . . [T]he

song was composed and recorded in the studio simultaneously and, therefore, . . . the

composition was embedded in the sound recording.”).

17 U.S.C. § 114(b) (2012); see also 17 U.S.C. § 101 (“ ‘Sound recordings’ are works

that result from the fixation of a series of musical, spoken, or other sounds . . . .”).

17 U.S.C. § 106(1). The copyright holder also has the right “to prepare derivative

works based upon the copyrighted work.” 17 U.S.C. § 106(2). However, the two cases in

the circuit split involve claims for violation of the reproduction right only. Generally,

without a violation of reproduction right, there will be no violation of the derivative work

right. See 2 M

ELVILLE

B. N

IMMER

& D

AVID

IMMER

, N

IMMER ON

OPYRIGHT

§ 8.09[A][1] (Matthew Bender rev. ed. 2017) (“[I]f the latter work does not incorporate

enough of the pre-existing work to constitute an infringement of either the reproduction

right or of the performance right, then it likewise will not infringe the right to make

derivative works because no derivative work will have resulted.” (footnote omitted)).

Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991).

See 4 N

IMMER

& N

IMMER

, supra note 46, § 13.01[B] (“Two separate components

actually underlie proof of copying . . . . First, there is the factual question whether the

defendant, in creating its work, used the plaintiff’s material as a model, template, or even

inspiration. If the answer is ‘yes,’ then one can conclude, as a factual proposition, that

copying may have occurred. But the question remains whether such copying is

actionable.”) (footnotes omitted). As direct evidence of factual proof of copying is

generally unavailable, “copying is ordinarily established indirectly by the plaintiff’s proof

of access and ‘substantial’ similarity.” Id. (footnote omitted). In sampling cases however,

defendants will often simply concede the fact of copying. See Evans, supra note 26, at 875

(“In the case of sampling, however, copying in fact is rarely litigated.”).

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1270 NEW YORK UNIVERSITY LAW REVIEW [Vol. 92:1261

tatively sufficient to support the legal conclusion that infringement

(actionable copying) has occurred.”

While the quantitative inquiry

looks to how much has been copied, the qualitative inquiry asks

whether the copying is of expression or ideas—if the copyist took only

ideas, which copyright does not protect, then there can be no infringe-

ment.

This quantitative inquiry, also known as the de minimis

threshold,

will be discussed further in Part I.C, infra.

Two of the tests for substantial similarity are especially relevant

to sampling. The first holds that “[t]wo works are substantially similar

if ‘an average lay observer would recognize the alleged copy as having

been appropriated from the copyrighted work.’”

The second, “frag-

mented literal similarity,” states that, “the question of substantial sim-

ilarity is determined by an analysis of ‘whether the copying goes to

trivial or substantial elements’ of the original work.”

If the plaintiff is able to make out a prima facie claim for copy-

right infringement, the defendant can avoid liability via an affirmative

defense. Three such defenses are relevant here. First, the defendant

Ringgold v. Black Entm’t Television, Inc., 126 F.3d 70, 75 (2d Cir. 1997). While

courts sometimes refer to “substantial similarity” as part of the prior inquiry of whether

defendant in fact copied from plaintiff, these two inquiries are distinct. This possible

confusion has led at least one court to adopt different terminology. See id. (“The former

(probative similarity) requires only the fact that the infringing work copies something from

the copyrighted work; the latter (substantial similarity) requires that the copying is

quantitatively and qualitatively sufficient to support the legal conclusion that infringement

(actionable copying) has occurred.”).

See id. (“The qualitative component concerns the copying of expression, rather than

ideas . . . . The quantitative component generally concerns the amount of the copyrighted

work that is copied, a consideration that is especially pertinent to exact copying.” (citation

omitted)); see also 17 U.S.C. § 102(b) (2012) (“In no case does copyright protection for an

original work of authorship extend to any idea . . . .”).

See, e.g., Gottlieb Dev. LLC v. Paramount Pictures Corp., 590 F. Supp. 2d 625, 632

(S.D.N.Y. 2008) (“[I]f the copying is de minimis and so ‘trivial’ as to fall below the

quantitative threshold of substantial similarity, the copying is not actionable.”).

Saregama India Ltd. v. Mosley, 687 F. Supp. 2d 1325, 1337 (S.D. Fla. 2009) (quoting

Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1214 (11th Cir. 2000) (applying this test in a

case involving sampling of a sound recording), aff’d, 635 F.3d 1284 (11th Cir. 2011); see

also Repp v. Webber, 132 F.3d 882, 889 (2d Cir. 1997) (stating that plaintiffs must “prove

that ‘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 . . . music is composed, that defendant

wrongfully appropriated something which belongs to the plaintiff’” (quoting Arnstein v.

Porter, 154 F.2d 464, 473 (2d Cir. 1946))).

TufAmerica, Inc. v. Diamond, 968 F. Supp. 2d 588, 598 (S.D.N.Y. 2013) (quoting

Newton v. Diamond, 388 F.3d 1189, 1195 (9th Cir. 2004)); accord 4 N

IMMER

& N

IMMER

supra note 46, § 13.03[A][2][a] (“No easy rule of thumb can be stated as to the quantum of

fragmented literal similarity permitted without crossing the line of substantial similarity.

The question in each case is whether the similarity relates to matter that constitutes a

substantial portion of plaintiff’s work—not whether such material constitutes a substantial

portion of defendant’s work.” (footnote omitted)). This analysis is often used when

defendant’s work directly copies some part of plaintiff’s expression. See id. at 13.03[A][2].

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might have entered into a license with the copyright holder that per-

mits defendant to use the copyrighted work in a given way.

Second,

the defendant may have independently created their work rather than

copying from the plaintiff.

Third, the defendant’s infringement might

be protected as fair use.

That inquiry focuses on whether the second

work is transformative, that is, whether the work “alter[s] the first

with new expression, meaning, or message.”

While some scholars

have suggested that fair use may protect samplers in some circum-

stances,

there is little case law.

C. The De Minimis Requirement

As noted above, a de minimis

requirement is built into the cop-

yright’s substantial similarity inquiry, meaning that copying will not be

See 4 N

IMMER

& N

IMMER

, supra note 46, § 13.01 (“[A]uthorization from the

See, e.g., Repp, 132 F.3d at 889 (“Independent creation is an affirmative defense,

evidence of which may be introduced to rebut a prima facie case of infringement.”).

17 U.S.C. § 107 (2012). The statute gives four non-exclusive factors for courts to

examine:

“(1) the purpose and character of the use, including whether such use is of a

commercial nature or is for nonprofit educational purposes; (2) the nature of

the copyrighted work; (3) the amount and substantiality of the portion used in

relation to the copyrighted work as a whole; and (4) the effect of the use upon

the potential market for or value of the copyrighted work.”

17 U.S.C. § 107(1)-(4).

Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578–79 (1994) (“The central

purpose of this investigation is to see, in Justice Story’s words, whether the new work

merely ‘supersede[s] the objects’ of the original creation, or instead adds something new,

with a further purpose or different character, altering the first with new expression,

meaning, or message; it asks, in other words, whether and to what extent the new work is

‘transformative.’” (citation omitted) (quoting Folsom v. Marsh, 9 F. Cas. 342, 348 (C.C.D.

Mass. 1841))).

Azran, supra note 21, at 106 (“[C]ertain transformative samples do not usurp the

original’s potential market and should therefore qualify as fair use.”); Christopher C.

Collie & Eric D. Gorman, Digital Sampling of Music and Copyrights: Is It Infringement,

Fair Use, or Should We Just Flip a Coin?, B.C. I

NTELL

. P

ROP

. & T

ECH

. F., Dec. 2011, at 1, 3

(concluding that Girl Talk’s sampling is likely fair use).

See Ashtar, supra note 21, at 294 n.198 (“Campbell remains the sole case to have

considered fair use in the sampling context. 2 Live Crew’s ‘Pretty Woman’ sampled

portions of Roy Orbison’s ‘Oh, Pretty Woman,’ and the court deemed their song a parody

that could constitute a non-infringing fair use.”). That could change: recent fair use cases,

for example Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013), has pointed towards a more

expansive definition of transformative fair use that may in time expand to sampling. See

Azran, supra note 21, at 69–70, 101 (arguing that “Prince stands for the proposition that

certain transformative derivative works of appropriation art can qualify as fair use” and

that while “legal standards for appropriation art in the visual and musical contexts have

diverged,” Prince “opens the door for courts to correct this disparity”).

Short for “de minimis non curat lex”—“the law does not concern itself with trifles.”

Ringgold v. Black Entm’t Television, Inc., 126 F.3d 70, 74 (2d Cir. 1997).

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1272 NEW YORK UNIVERSITY LAW REVIEW [Vol. 92:1261

actionable if it is merely de minimis.

While referred to as a quantita-

tive threshold,

qualitative factors matter as well—the test does not

simply look to the amount of copying but also its character.

“[A] use is de minimis only if the average audience would not

recognize the appropriation.”

While “courts agree that sampling of a

single note is de minimis,”

there is no bright-line rule for when sam-

pling begins to exceed that threshold.

As explained below, however,

this lack of a bright-line rule does not mean eliminating the de

minimis requirement leads to greater predictability or lower litigation

Ringgold outlines three different roles that the de minimis requirement plays in

violation of a right so trivial that the law will not impose legal consequences”; such a

violation rarely will be the subject of litigation. Id. at 74. “Second, de minimis can mean

that copying has occurred to such a trivial extent as to fall below the quantitative threshold

of substantial similarity, which is always a required element of actionable copying.” Id.

(noting that this is relevant only to the inquiry of whether copying was actionable, and not

to the question of whether copying in fact occurred, which also uses the language of

substantial similarity). Third, whether a taking is de minimis might be relevant to fair use.

Id. at 75; see also 17 U.S.C. § 107(3) (listing as a factor “the amount and substantiality of

the portion used in relation to the copyrighted work as a whole” (emphasis added)).

See supra note 51 and accompanying text.

For example, in Ringgold, the court considered whether the inclusion of a

copyrighted poster in the background of a TV program was more than de minimis.

Ringgold, 126 F.3d at 76. In addition to examining the length of time the poster was visible

and what proportion of it was in view (quantitative factors), the court also noted that the

poster was “in less than perfect focus” and had “sufficient observable detail” to discern the

artist’s “style.” Id. at 76–77.

Newton v. Diamond, 388 F.3d 1189, 1193 (9th Cir. 2004). The case involved the

Beastie Boys’ sampling “of a six-second, three-note segment” by jazz flutist James Newton.

Id. at 1190. Because the sound recording was licensed, the court looked only at whether

defendants infringed the musical composition. Id. at 1193. The court found that “no

reasonable juror could find the sampled portion of the composition to be a quantitatively

or qualitatively significant portion of the composition as a whole” because the segment

appeared only once in the composition and because “this section of the composition is no

more significant than any other section.” Id. at 1195–96. The taking was thus de minimis,

and the court affirmed summary judgment for the Beastie Boys. Id. at 1196–97.

TufAmerica, Inc. v. Diamond, 968 F. Supp. 2d 588, 607 (S.D.N.Y. 2013).

Silberman v. Innovation Luggage, Inc., No. 01 Civ. 7109(GEL), 2003 WL 1787123, at

*8 (S.D.N.Y. Apr. 3, 2003) (“[W]hile courts often look to the amount of the copyrighted

work that was copied in determining whether the allegedly infringing work falls below the

quantitative threshold of substantial similarity, there are no bright line rules . . . , and the

issue must be decided case by case.”). For example, in TufAmerica, one of the samples was

a “one-second long, single utterance of the phrase ‘say what,’” which was used only once in

the sampling work. TufAmerica, 968 F. Supp. 2d at 603. The court rejected the motion to

dismiss, noting that this was long enough to not necessarily be de minimis as a matter of

law and plausibly had qualitative significance because it was the original song’s title phrase.

Id. By contrast, the court found that the sampling of a three-second long segment which

plaintiffs described as “includ[ing] punchy guitar chords backed by percussion under the

distinctive shouted lyrics, ‘[n]ow I want y’all to break this down’” was de minimis as a

matter of law. See id. at 607 (“[T]here is nothing from which a juror could conclude that

the [sample] is even thematically relevant and there is no repetition.”).

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October 2017] THE DE MINIMIS REQUIREMENT AS A SAFETY VALVE 1273

costs, because the result is that a greater proportion of cases would go

to the more complicated and less predictable fair use analysis.

While the de minimis test is imperfect, it serves an important

function: ensuring that our reasonable acts do not subject us to copy-

right liability. As Judge Leval explains:

Trivial copying is a significant part of modern life. Most honest citi-

zens in the modern world frequently engage, without hesitation, in

trivial copying that, but for the de minimis doctrine, would techni-

cally constitute a violation of law. We do not hesitate to make a

photocopy of a letter from a friend to show to another friend . . . .

Parents in Central Park photograph their children perched on Jos ´e

de Creeft’s Alice in Wonderland sculpture. . . . When we do such

things, it is not that we are breaking the law but unlikely to be sued

given the high cost of litigation. Because of the de minimis doctrine,

in trivial instances of copying, we are in fact not breaking the law.

D. How the De Minimis Requirement Furthers Creativity

Sampling of de minimis portions of sound recordings is one of

these reasonable acts that should not violate the law (without the need

for a fair use defense). Indeed, sampling is often referred to as a

“building block” of certain types of music, especially hip-hop.

Elimi-

nating the de minimis requirement for sound recordings threatens cre-

ativity and the production of new works. The reason for this is simple:

the de minimis requirement provides relief from what would other-

wise be the suffocating effect of copyright on creativity.

1. Why Copyright Can Threaten Musical Creativity

While copyright aims to promote the creation of new works by

providing economic incentives to artists,

the means by which it does

so—the granting of monopoly rights which limit what future artists

can do—can also threaten creativity.

Sampling enables creativity,

but also can easily infringe the copyrights in the sound recording and

See infra notes 237–42 and accompanying text.

On Davis v. Gap, Inc., 246 F.3d 152, 173 (2d Cir. 2001).

See Zac Shaw, Compositions with Samples: A Music Discovery Market in Arrested

Development, M

EDIAPOCALYPSE

(May 5, 2013), http://www.mediapocalypse.com/

compositions-with-samples-a-music-discovery-market-in-arrested-development/ (“As any

hip hop fan knows, creative appropriation of sound recordings—samples—are a

fundamental building block of the genre.”).

See infra Part III.A.

See W

ILLIAM

M. L

ANDES

& R

ICHARD

A. P

OSNER

, T

CONOMIC

TRUCTURE OF

NTELLECTUAL

ROPERTY

58 (2003) (“By discouraging copying, [copyright law]

discourages the historically very important form of artistic creativity that consists of taking

existing work and improving it.”).

See supra Part I.A.

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1274 NEW YORK UNIVERSITY LAW REVIEW [Vol. 92:1261

the musical composition unless the taking is a permissible one, for

example because it is licensed, de minimis, or fair use.

The risk that copyright will impede creativity is particularly acute

for sampling because of the high potential damages in comparison to

the value of the sample to the second artist and the great uncertainty

surrounding which actions will lead to infringement. Peter Menell

aptly explains the relevant portions of copyright’s damages regime:

dies compound the uncertainties surrounding copyright’s limiting

doctrines. As a result, cumulative creators must be extremely cau-

tious in their use of copyrighted works. Even a small transgression

can trigger injunctive relief barring distribution of the infringing

work as well as substantial monetary damages. For works that are

registered prior to infringement, copyright owners can seek either

actual damages and disgorgement of profits, or statutory damages,

which range from $750 to $30,000 per infringed work and up to

$150,000 per infringed work in the case of willful infringement. . . .

Girl Talk “samples” twenty to thirty separate musical compositions

and sound recordings, up to sixty copyrighted works in total, in a

single mashup composition. By so doing, Gillis exposes himself to

liability for 60 times the statutory damage range . . . . The potential

liability is staggering. . . . [T]he minimum statutory damage award

rises above $10,000 per mashup composition.

This level of damages might be more appropriate if it was clear what

constitutes infringement and fair use. Unfortunately, neither the de

minimis test

nor the fair use analysis

are shining examples of

clarity and predictability. The resulting uncertainty is only com-

pounded by the arbitrary and capricious nature of enforcement by

Some artists can sample extensively without ever being sued. In

many ways, Girl Talk—the stage name of Gregg Gillis—would be the

dream defendant for copyright holders. He samples—without a

license

—dozens of works for each of his compositions—often long

(minute plus) portions of hit songs—and his fans have even compiled

See supra Part I.B.

Peter S. Menell, Adapting Copyright for the Mashup Generation, 164 U. P

. L. R

441, 470–71 (2016) (footnotes omitted).

See supra notes 65–66.

See infra note 240.

See Luiz Augusto Buff, Mash-Ups & Fair Use: Girl Talk, M

USIC

. J., Dec. 2010,

http://www.thembj.org/2010/12/mash-ups-fair-use-girl-talk/ (“[Girl Talk], having planned to

release the album [All Day] for free, decided to move forward without licensing a single

track – not even the three-minute use of Black Sabbath’s War Pigs – claiming that his

creations fit the guidelines of fair use.”).

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October 2017] THE DE MINIMIS REQUIREMENT AS A SAFETY VALVE 1275

a helpful list of where and when each sample occurs.

And yet there

are no lawsuits against him. While his work is arguably fair use,

col-

orable claims to fair use provide no firm guarantee against lawsuits.

Rather, it appears that it is Girl Talk’s high profile which has pro-

tected him from suit: any case against him could be a major public

relations issue for the plaintiff and draw out top-notch lawyers willing

to represent him for free.

Other artists, even though they sampled much less, have not been

so lucky. The Notorious B.I.G. song “Ready to Die” included a six-

second sample from the Ohio Players’ “Singing in the Morning.” The

jury imposed a punitive damages award of $3.5 million (based on a

state common law copyright claim) on a pre-interest compensatory

damages award of $366,939.

While reduced on appeal,

the prospect

of such damages is likely to have a chilling effect on sampling. Adding

See Tracklist / All Day, I

LLEGAL

RACKLIST

, http://www.illegal-tracklist.net/

Tracklists/AllDay (last modified Aug. 24, 2015) [http://www.webcitation.org/

6p1MYHANC].

See supra note 58 (summarizing arguments that Girl Talk’s work is fair use).

See, e.g., SOFA Entm’t, Inc. v. Dodger Prods., Inc., 709 F.3d 1273, 1280 (9th Cir.

2013) (upholding an award of attorney’s fees to the defendant who prevailed on fair use

because the plaintiff “should have known from the outset that its chances of success in this

case were slim to none”).

Joe Mullin, Why The Music Industry Isn’t Suing Mashup Star ‘Girl Talk’, G

IGAOM

(Nov. 16, 2010, 7:24 PM), https://gigaom.com/2010/11/16/419-why-the-music-industry-isnt-

suing-mashup-star-girl-talk/ (describing Girl Talk as “the most unappealing defendant

imaginable”). The alternative explanation that the labels are not suing Girl Talk because

he does not make any money—directly or indirectly—from his sampling seems

implausible. While I found no reliable sources listing his income, Girl Talk has played

hundreds of live shows. Girl Talk, S

ONGKICK

, http://www.songkick.com/artists/414005-girl-

talk (last visited May 10, 2017) (listing 581 past concerts). While it is not clear how much

Girl Talk gets paid for these performances, live shows can be very lucrative for DJs. See

Josh Eells, Night Club Royale, T

ORKER

, Sept. 30, 2013, at 41 (noting that some

top electronic dance music artists—admittedly all bigger names than Girl Talk—earn

between $40,000 and $300,000 per show at Steve Wynn’s Las Vegas nightclubs). There are

also various online retailers who sell Girl Talk branded merchandise such as T-shirts—

though it is not obvious what cut, if any, Girl Talk receives from these. See, e.g., Girl Talk

Merchandise: All Products, B

ACKSTREETMERCH

COM

, https://www.backstreetmerch.com/

artist/girl-talk (last visited June 26, 2017).

Bridgeport Music, Inc. v. Justin Combs Pub., 507 F.3d 470, 475, 477 (6th Cir. 2007);

Final Brief of Defendants/Appellants Bad Boy Entertainment, Inc. Itself & d/b/a Bad Boy

Records, Bad Boy Records LLC, Janice Combs Publishing, Inc. d/b/a Justin Combs

Publishing & UMG Recordings, Inc. Itself & Its Division Universal Records, at 18,

Bridgeport Music, Inc. v. Justin Combs Pub., 507 F.3d 470 (6th Cir. 2007) (No. 06-6294),

2007 WL 2261769.

On remand, the district court set punitive damages at $688,523. Westbound Records,

Inc. v. Justin Combs Pub., Inc., No. 3:05-0155, 2009 WL 943516, at *3 (M.D. Tenn. Apr. 3,

2009).

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1276 NEW YORK UNIVERSITY LAW REVIEW [Vol. 92:1261

insult to injury, the parties were unable to agree on a license, so the

song could no longer lawfully be sold in the form the artist intended.

An additional factor helps explain the negative effect copyright

law has had on sampling and creativity: anti-sampling decisions like

Bridgeport. The most prominent other such decision was Grand

Upright Music Ltd., which infamously opened with “[t]hou shalt not

steal” and concluded with a referral to the U.S. Attorney for criminal

prosecution of the samplers.

After determining that the sampling

was unlicensed the court immediately determined that it must be

illegal, without even mentioning the de minimis requirement, substan-

tial similarity, or fair use.

Given this uncertainty over whether copyright owners will sue

and who will prevail if they do, and given the high potential costs of

losing—or even successfully defending

—a sampling lawsuit, it is not

surprising that many artists and labels have ceased unlicensed sam-

pling. To help put this in context, it is necessary to first examine an

earlier period, sometimes referred to as “the golden age of sampling,”

which lasted roughly from 1987 to 1992.

This period was one of

much greater freedom for samplers; the modern legal and administra-

tive barriers to sampling did not yet exist.

One reason was simply

that the broader music industry wasn’t paying much attention, which

“gave many hip-hop artists the opportunity to make music exactly as

they imagined it, without restrictions.”

Among the albums produced

during this golden era is Paul’s Boutique by the Beastie Boys. The

EOD

& D

OLA

, supra note 1, at 31 (“[T]hus the only way Ready to Die could

return to the legitimate marketplace was to remove the offending sample and completely

remaster the album, an expensive proposition. . . . [T]he reworked version loses something

aesthetically.”).

Grand Upright Music Ltd. v. Warner Bros. Records, Inc., 780 F. Supp. 182, 183, 185

(S.D.N.Y. 1991).

Id. at 183, 185 (stating that because defendants admitted sampling, “[t]he only issue,

therefore, seems to be who owns the copyright to the [sampled] song”).

See Menell, supra note 74, at 478 (“Copyright litigation is time-consuming,

expensive, distracting, and risky.”).

EOD

& D

OLA

, supra note 1, at 19 (quoting producer and MC Mr. Lif as

saying, “[t]he difference between hip-hop production in current times and in the 1980s

during the golden era—it just allowed so much more freedom. Like, you didn’t think

about, ‘You couldn’t sample this, or you couldn’t sample that.’”); see also Cox, supra note

22, at 227 (“This period of sample-intensive music from the late 1980s through 1991 has

long been referred to as the Golden Age of sampling in hip-hop. However, this

unparalleled age of musical enlightenment in the hip-hop community all screeched to a

halt in December of 1991.”) (footnote omitted) (referring to Grand Upright).

See M

EOD

& D

OLA

, supra note 1, at 19–20 (describing how, in the “golden

age,” artists simply sampled songs without asking). These barriers include the insistence on

licensing nearly all samples, see infra note 101, and the transaction costs associated with

this licensing, see infra notes 207–08 and accompanying text.

EOD

& D

OLA

, supra note 1, at 20.

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album is notable as much for its critical acclaim—it is ranked #156 on

Rolling Stone’s list of the greatest albums of all time

—as for the fact

that it couldn’t be profitably produced today. The album is presumed

to contain between one hundred and three hundred samples, which

would cost so much to license that even at a retail price of $18.98 the

artists would lose an estimated $7.87 per copy sold (assuming just one

hundred and twenty-five samples).

Changes in law and attitudes regarding sampling brought an end

to this golden age of sampling and ushered in a new era where far

more had to be licensed (especially after Bridgeport). Because of this,

“sample-laden albums” cannot be made today—at least if they are to

be distributed through “legitimate channels.”

Labels, understand-

ably risk-averse, have been “much more likely to want to get clear-

ances for everything.”

This clearance culture at times borders on the

absurd. Posdnuos—a member of the hip hop group De La Soul—

describes having a list of people they were not allowed to sample

because the copyright holder was known to be litigious or to dislike

rap.

Jay-Z’s record label made him get clearance not because he

sampled David Bowie “but because of the way Jay-Z uttered a single

word” (Jay-Z’s song “Takeover” included him rapping the word

“FAAAAAAAME!” in a way that “imitate[d] the phrasing” of the

same word in Bowie’s “Fame”).

500 Greatest Albums of All Time, R

OLLING

TONE

(May 31, 2012), http://

www.rollingstone.com/music/lists/500-greatest-albums-of-all-time-20120531/the-beastie-

boys-pauls-boutique-20120524.

EOD

& D

OLA

, supra note 1, at 21, 208; see also infra notes 207–10 and

accompanying text (describing the prohibitively high transaction costs of licensing).

EOD

& D

OLA

, supra note 1, at 28–29 (“By the 1990s, high costs, difficulties

negotiating licenses, and outright refusals made it effectively impossible for certain kinds

of music to be made legally, especially albums containing hundreds of fragments of sound

within one album.”). Girl Talk appears to be a rare exception, owing only to the fact that

no one has been willing to sue him so far. See supra notes 77–81 and accompanying text.

Id. at 137 (quoting music lawyer Whitney Broussard, who was describing the

environment for major labels). McLeod and DiCola attribute this “risk-averse stance” to

“the wave of sampling lawsuits.” Id. Philo Farnsworth of Girl Talk’s label Illegal Art

concurs, stating that “[a]s it now stands, only a small number of artists will dare to release

an album with uncleared samples.” Id. at 242. See also Lauren Fontein Brandes, Comment,

From Mozart to Hip-Hop: The Impact of Bridgeport v. Dimension Films on Musical

Creativity, 14 UCLA E

. L. R

. 93, 125 (2007) (“Because of the lack of clear guidelines

as to what must be licensed and what is de minimis or fair use, the current practice is to

license any recognizable sample, regardless of how de minimis it is.”).

EOD

& D

OLA

, supra note 1, at 28; see also Brandes, supra note 94, at 124–25

(“Some artists, like The Beatles, Jefferson Airplane, and Pink Floyd, have strict no-

sampling policies. Others refuse requests for samples because of the perceived

controversial subject matter of the new song.” (footnote omitted)).

EOD

& D

OLA

, supra note 1, at 29.

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1278 NEW YORK UNIVERSITY LAW REVIEW [Vol. 92:1261

While some of these changes are due to samplers no longer slip-

ping under the radar like they used to, the key cause has been overly

strict interpretations of copyright law.

Bridgeport in particular

deserves much of the blame for this; the Sixth Circuit’s decision

allowed for legal challenges to works that previously were considered

non-infringing.

Music lawyer Whitney Broussard describes the post-

Bridgeport rule among major labels as “even if you can’t hear a

sample of the sound recording, you still have to clear it.”

Bridgeport

has had an “extraordinarily chilling” impact on the use of sampling in

music,

100

which has impeded creativity.

101

2. The De Minimis Requirement as a Safety Valve

Several safety valves help mitigate the threatening impact of cop-

yright on creativity—and free speech more generally. These include

the idea/expression dichotomy and fair use, which the Supreme Court

has described as “traditional First Amendment safeguards.”

102

For

musical compositions there is an additional safety valve: § 115’s com-

pulsory license allowing cover songs.

103

The de minimis requirement

has a similar effect as these other protections: By removing suffi-

ciently small takings from the scope of copyright, it helps ensure that

future authors are able to create expressive works, even when they

rely on previous ones, without infringing or undergoing the potentially

See id. at 188 (quoting musicologist Lawrence Ferrara as saying, “[h]istorically, I

think we are at a time where we’re sampling less, and certainly copyright law had a major

part in that”).

See id. at 31 (“The floodgates opened after Bridgeport with several high-profile

lawsuits targeting classic hip-hop albums such as Notorious B.I.G.’s Ready to Die and Run-

DMC’s Raising Hell. Both of these albums, important contributors to hip-hop culture,

were removed from record store shelves and from online vendors after copyright

infringement suits were filed.”).

Id. at 142.

100

Id. at 143 (quoting Lawrence Ferrara).

101

Id. at 139 (paraphrasing remarks of Eothen Alapatt of the independent label Stones

Throw); Menell, supra note 74, at 479–80 (“But the reality of the licensing era meant

constrained experimentation, higher entry costs (if an artist did not have a major label and

a good attorney, it was difficult to get licensing requests answered), and many creative

compromises.”); Brandes, supra note 94, at 120 (“[A]s Grand Upright has done over the

past fourteen years, the Bridgeport rule will inhibit artistic creativity and impede the

progress of rap music.”). But see Reilly, supra note 21, at 386–402 (arguing that Bridgeport

will not impair creativity on the whole because it strengthens incentives to create new

works that don’t use samples). This counterargument seems weak for two reasons. First,

there is no good evidence that the potential of unlicensed de minimis leads authors not to

create either because of the foregone revenues from licensing those samples or because the

artists have moral or creative objections to such sampling. Second, the Note has collected

extensive evidence that the requirement to license all samples, even de minimis ones, has

significant negative effects on many forms of musical creativity.

102

Eldred v. Ashcroft, 537 U.S. 186, 220 (2003).

103

17 U.S.C. § 115 (2012) (establishing a compulsory license that allows cover songs).

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costly licensing process. In many cases, even a small sample will be

enough to serve the purposes of the sampler—be it to conjure up the

feeling of another time or artist, to comment on an earlier work, or

simply to recontextualize and build on earlier expression.

Sampling has emerged as a fundamental building block of musical

creativity.

104

The de minimis requirement protects this basic tool in

cases where the taking does no cognizable harm to the interests of the

original artist.

105

It would go too far to say that “allowing copyright

protection for every note in a sound recording would stifle creativity

in music just as much as allowing a writer copyright protection for

every letter of the alphabet he uses in writing a novel would stifle

creativity in literature.”

106

After all, writing a book without letters

would be a much harder task than writing a song without samples. But

the analogy does illustrate, even if in an exaggerated fashion, what

removing the ability to sample would imply for genres that rely

heavily on it. However, for the de minimis requirement to be effective

in protecting creativity, it must be a nationwide rule. Otherwise, sam-

plers and associated parties could be at risk of lawsuit in a jurisdiction

that does not recognize the de minimis requirement for sound record-

ings.

107

That is, some plaintiffs could choose to sue in the Sixth Circuit

104

See supra notes 29–34 and accompanying text (describing sampling’s role as a

creative tool for musicians).

105

This idea of a de minimis taking not harming the original artist’s interests is not part

of the de minimis test itself. Rather, it emerges as a consequence of what is required for a

taking to qualify as de minimis. Takings that are short, especially when they do not go to

the core of the original work, are poor substitutes for the original, and so generally will not

implicate the economic interests of the original artist. Sampling may even boost the market

for the original. See infra notes 249–53 and accompanying text. Some take a broader view

of an artist’s interests to include control over how their work is used, in line with European

ideas of moral rights. But Congress has declined to accept this conception of an artist’s

rights as applied to music. See 17 U.S.C. § 106A(a) (2012) (limiting moral rights

protections to works of “visual art”); 17 U.S.C. § 115 (allowing cover songs without

permission from the copyright holder).

106

Jennifer R. R. Mueller, Note, All Mixed Up: Bridgeport Music v. Dimension Films

and De Minimis Digital Sampling, 81 I

. L.J. 435, 457 (2006).

107

See Samantha M. Basso, Note, When National Law Means Regional Law: A Look at

the Non-Uniformity of Copyright Law and How the Federal Circuit Can Help, 21 F

. C

B.J. 355, 380 (2012) (“[A] more cohesive copyright law will discourage costly and

inefficient forum shopping, which can easily occur in copyright cases because venue might

properly lie in every federal district court in the country.”) (internal quotation omitted).

Cf. VMG Salsoul, LLC v. Ciccone, 824 F.3d 871, 886 (9th Cir. 2016) (“[W]e take the

unusual step of creating a circuit split by disagreeing with the Sixth Circuit’s contrary

holding in Bridgeport. We do so only after careful reflection because . . . ‘the creation of a

circuit split would be particularly troublesome in the realm of copyright. Creating

inconsistent rules among the circuits would lead to different levels of protection in

different areas of the country, even if the same alleged infringement is occurring

nationwide.’”) (quoting Seven Arts Filmed Entertainment Ltd. v. Content Media Corp.,

733 F.3d 1251, 1256 (9th Cir. 2013)).

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1280 NEW YORK UNIVERSITY LAW REVIEW [Vol. 92:1261

solely to take advantage of Bridgeport’s plaintiff-friendly rule.

108

Thus, samplers potentially subject to suit there must act as if the

Bridgeport rule was a nationwide one, even though the majority of

courts to consider the question have rejected Bridgeport.

109

IRCUIT

PLIT

A. Bridgeport

The first case in this circuit split begins—and ends—with overkill.

Four related plaintiffs brought suit against approximately 800 defen-

dants, alleging almost 500 counts of copyright infringement and

assorted state law claims.

110

The district court severed these—thank-

fully—into 476 separate actions, including Bridgeport Music, Inc. v.

Dimension Films.

111

Bridgeport presented a crisp factual setup. Plaintiff Westbound

held the sound recording copyright for “Get Off Your Ass and Jam”

(“Get Off”), which was written by George Clinton for Funkadelic.

112

The song opens with a four-second electric guitar riff made up of three

notes—an arpeggiated chord

113

—which the district court described as

“a high-pitched, whirling sound that captures the listener’s attention

and creates anticipation of what is to follow.”

114

In a surprising twist,

the group never learned who played this riff—the guitarist simply

came into the studio and offered to play.

115

Impressed by the perfor-

mance, George Clinton doubled their agreed upon fee to $50, after

which they never saw him again.

116

If the Sixth Circuit was aware of

this, they made no mention of it in the opinion.

From that four-second riff, N.W.A. sampled two seconds of the

sound recording for use in the rap song “100 Miles and Runnin’”

108

The Bridgeport rule is currently confined to the Sixth Circuit. VMG Salsoul, LLC v.

Ciccone, 824 F.3d at 881.

109

Id. at 886 (“Since the Sixth Circuit decided Bridgeport, almost every district court

not bound by that decision has declined to apply Bridgeport’s rule.”) (collecting cases).

110

Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 795 (6th Cir. 2005).

111

Id.

112

Id. at 796; Jeff Giles, George Clinton Shares the Mystery Behind One of Funkadelic’s

Greatest Guitar Solos, U

LTIMATE

LASSIC

OCK

(Oct. 20, 2014, 12:27 PM), http://

ultimateclassicrock.com/funkadelic-get-off-your-ass-and-jam-solo/.

113

Bridgeport, 410 F.3d at 796.

114

Bridgeport Music, Inc. v. Dimension Films, 230 F. Supp. 2d 830, 839 (M.D. Tenn.

2002), rev’d, 383 F.3d 390 (6th Cir. 2004), republished as modified on reh’g, 401 F.3d 647

(6th Cir. 2004), amended on reh’g, 410 F.3d 792 (6th Cir. 2005), and rev’d, 401 F.3d 647 (6th

Cir. 2004), and amended on reh’g, 410 F.3d 792 (6th Cir. 2005).

115

Giles, supra note 112.

116

Id. (“I tried to find the guy and put him on another song, but he was gone. He never

resurfaced.”) (quoting George Clinton).

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(“100 Miles”), which was later included in the sound track for defen-

dant No Limit Films’ movie I Got the Hook Up.

117

Based on the testi-

mony of plaintiffs’ expert, N.W.A. lowered the pitch of the sample

and looped it.

118

The resulting sample was about seven seconds long

and appeared in “100 Miles” a total of five times.

119

The district court found that this copying did “not rise to the level

of a legally cognizable appropriation” and granted summary judgment

to the defendant.

120

Because there was “no dispute” that “100 Miles”

sampled plaintiffs’ work, and because Bridgeport had licensed the

musical composition, the issue on appeal was limited to Westbound’s

claim that the de minimis inquiry does not apply when a defendant

admits that they sampled a sound recording.

121

The Sixth Circuit agreed with Westbound, finding that “a sound

recording owner has the exclusive right to ‘sample’ his own

recording.”

122

Specifically, it held that “no substantial similarity or de

minimis inquiry should be undertaken at all when the defendant has

not disputed that it digitally sampled a copyrighted sound

recording.”

123

Under this rule, a defendant is liable as long as plaintiff

holds a valid copyright—meaning, among other things, that the

recording must be original—in the sound recording and the defendant

in fact sampled plaintiff’s work. The court thus reversed the entry of

117

Bridgeport, 410 F.3d at 796; Judge Sides with No Limit Films in Copyright Suit,

ILLBOARD

(Oct. 22, 2002), http://www.billboard.com/articles/news/73750/judge-sides-

with-no-limit-films-in-copyright-suit.

118

Bridgeport, 410 F.3d at 796.

119

Id.

120

Bridgeport, 230 F. Supp. 2d at 841 (finding that this was true under both a

“quantitative/qualitative de minimis analysis” and the “‘fragmented literal similarity’

analysis”). The district court found “no reasonable jury, even one familiar with the works

of George Clinton (the author of ‘Get Off’), would recognize the source of the sample

without having been told of its source.” Id. at 842. Both songs are available at the website

WhoSampled, which includes the ability to jump to the location of the original riff and one

of the modified samples. N.W.A.’s “100 Miles and Runnin” Sample of Funkadelic’s “Get

Off Your Ass and Jam,” W

AMPLED

, http://www.whosampled.com/sample/35629/

N.W.A-100-Miles-and-Runnin’-Funkadelic-Get-Off-Your-Ass-and-Jam/ (last visited Feb.

8, 2017). While it is not hard to hear evidence of sampling when listening specifically for it

(especially at 1:52 of “100 Miles”), the district court’s conclusion seems accurate.

121

Bridgeport, 410 F.3d at 796, 798. For clarity, it was N.W.A., not the defendant No

Limit Films, who did the sampling; No Limit Films was liable because they included “100

Miles” in the sound track for I Got the Hook Up. However, the court writes at times as if it

was No Limit Films that sampled “Get Off,” a convention I follow here for the sake of

conforming with the issues as the court presented them. Nothing in the court’s decision

turns on this phrasing.

122

Id. at 801.

123

Id. at 798.

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summary judgment and remanded for a consideration of whether

defendant’s copying was fair use.

124

While Part III will more fully discuss and critically evaluate the

Sixth Circuit’s reasoning, it is worth briefly summarizing the key argu-

ments the court made. The main interpretive argument turned on the

presence of the word “entirely” in 17 U.S.C. § 114(b):

The exclusive rights of the owner of copyright in a sound recording

under clauses (1) and (2) of section 106 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.

125

From this, and because the word “entirely” was added several years

after the original statute establishing copyright in sound recordings

was passed, the court concluded that any sample automatically vio-

lates the exclusive rights of the copyright holder, without reference to

a de minimis test or substantial similarity.

126

The court’s statutory

argument on this point is relatively conclusory,

127

but at its core is

based on the flawed inference that a failure to meet the § 114(b)

exception necessarily means that the exclusive reproduction right of

§ 106(1) has been violated.

128

This line of argument presupposes its

conclusion: The argument only works if § 114(b) is the sole exception

to the reproduction right, which means that § 114(b) must have

impliedly eliminated all other limitations on the reproduction right,

including the traditional de minimis requirement. As Part III explains,

that reading ignores both the statutory structure and the legislative

history.

Following this, the court gave a variety of policy arguments in

favor of this interpretation. First, the court argued that this rule—

“[g]et a license or do not sample”—lends itself to easy enforcement

with no need to resort to the “mental, musicological, and technolog-

124

Id. at 805. The case settled without a decision on fair use.

125

17 U.S.C. § 114(b) (2012) (emphasis added). Subsections 106(1) and 106(2) are the

reproduction and the derivative work rights, respectively. See 17 U.S.C. § 106.

126

Bridgeport, 410 F.3d at 798, 800.

127

“The balance that was struck was to give sound recording copyright holders the

exclusive right ‘to duplicate the sound recording in the form of phonorecords or copies that

directly or indirectly recapture the actual sounds fixed in the recording.’ 17 U.S.C.

§ 114(b). This means that the world at large is free to imitate or simulate the creative work

fixed in the recording so long as an actual copy of the sound recording itself is not made.

That leads us directly to the issue in this case. If you cannot pirate the whole sound

recording, can you ‘lift’ or ‘sample’ something less than the whole. Our answer to that

question is in the negative.” Id. at 800 (footnotes omitted).

128

See infra notes 169–71 and accompanying text.

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ical gymnastics” allegedly required for a de minimis analysis.

129

The

court insisted, though, that this was mainly about making things

cheaper for the music industry, not easier for judges.

130

Second, the court argued that automatically treating samples as

infringing would not stifle creative output. The primary rationale for

this was market based: The “market will control the license price and

keep it within bounds” because they have no incentive to set the

license fee higher than the cost of recreating the sound.

131

The court also offered several other reasons for its conclusion.

First, it noted that many artists and record companies seek “licenses as

a matter of course.”

132

Second, it noted that the rule would not affect

sampling of pre-1972 sound recordings, which are not subject to copy-

right.

133

Third, the court postulated that many artists would simply

continue to sample without a license, either because of a theory of

“live and let live” under which “today’s sampler is tomorrow’s sam-

plee” or because they will violate the law and “take their chances.”

134

The court’s third set of arguments for this bright-line rule focused

on the nature of the infringing act. This was the part of the decision—

other than statutory interpretation—designed to answer a critical

question: Why should there be a de minimis requirement for musical

compositions (and other types of copyrightable works) but not for

sound recordings? The court tries to distinguish sampling from other

types of copying by saying that “sampling is never accidental,”

135

implicitly drawing a contrast with cases where liability was predicated

on a theory that one creator subconsciously copied another’s work.

136

129

Bridgeport, 410 F.3d at 801–02 (“This 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.”).

130

Id. at 802 (“[C]onsiderations of judicial economy are not what drives this opinion. If

any consideration of economy is involved it is that of the music industry. . . . [I]t would

appear to be cheaper to license than to litigate.”).

131

Id. at 801. Recreating the sound would not violate the sound recording copyright. It

could, however, violate the musical composition copyright; even the Sixth Circuit appears

to agree that there is a de minimis requirement for that type of work. Id. (“This analysis

admittedly raises the question of why one should, without infringing, be able to take three

notes from a musical composition, for example, but not three notes by way of sampling

from a sound recording. Why is there no de minimis taking . . . .”).

132

Id. at 804.

133

Id.

134

Id.

135

Id. at 801 (“When you sample a sound recording you know you are taking another’s

work product.”). Infringement might be accidental, however. For example, someone may

have a good faith, but mistaken, belief that a sound recording is in the public domain or

that they have properly licensed it.

136

See ABKCO Music, Inc. v. Harrison’s Music, Ltd., 722 F.2d 988, 999 (2d Cir. 1983)

(holding that “copyright infringement can be subconscious”). The case upheld a finding

that George Harrison was liable for infringement given the unique nature of the songs, the

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It also argues that “even when a small part of a sound recording is

sampled, the part taken is something of value.”

137

And because sam-

pling takes the sounds themselves rather than some more abstracted

idea of the song, sampling “is a physical taking rather than an intellec-

tual one.”

138

As discussed in Part III, none of these arguments are

sufficiently persuasive.

B. VMG Salsoul

While the two seconds sampled in Bridgeport

139

seems small, that

sample is an order of magnitude larger than the amount sampled in

VMG Salsoul, LLC v. Ciccone: 0.23 seconds.

140

That snippet of sound

was a “horn hit”—specifically a four-note chord with a quarter-note

duration—played mostly by trombones and trumpets.

141

The horn hit

originated in “Ooh I Love It (Love Break)” (“Love Break”), a disco-

rap song by The Salsoul Orchestra, which was recorded by Shep Petti-

bone.

142

Pettibone later produced Madonna’s dance hit “Vogue.”

143

Plaintiff VMG Salsoul sued Pettibone, Madonna, and others, alleging

defendants sampled this horn hit.

144

Based on testimony by VMG Salsoul’s expert, the version of the

horn hit used in “Vogue” was higher pitch, truncated, and overlaid

with other effects.

145

The court noted that the “horn hits are not iso-

lated sounds,” indeed, “[m]any other instruments are playing at the

same time in both” songs.

146

Two main versions of the horn hit occur

in each song: a single horn hit lasting one quarter-note, and a double

horn hit, in which the horn hit is played first for an eighth-note and

“striking” similarity, and Harrison’s acknowledgment that he had heard plaintiff’s song

several times. Id. at 998–99.

137

Bridgeport, 410 F.3d at 801–02 (“No further proof of that is necessary than the fact

that the producer of the record or the artist on the record intentionally sampled because it

would (1) save costs, or (2) add something to the new recording, or (3) both.”).

138

Id. at 802.

139

Id. at 796.

140

824 F.3d 871, 874 (9th Cir. 2016).

141

Id. at 875.

142

Id.; Robbie Daw, Madonna, Producer Shep Pettibone Off the Hook with “Vogue”

DOLATOR

(June 2, 2016, 2:34 PM), http://www.idolator.com/7635486/

madonna-producer-shep-pettibone-vogue-copyright-lawsuit.

143

VMG Salsoul, 824 F.3d at 874.

144

While defendants disputed that sampling occurred, because the Ninth Circuit was

ruling on their motion for summary judgment, the court assumed that defendants sampled

“Love Break.” Id. at 877.

145

Id. at 879–80.

146

Id. at 879.

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immediately after for a quarter-note.

147

Both appear frequently

throughout each song.

148

The district court granted defendants’ motion for summary judg-

ment on two grounds. First, it held that the sound recording—and the

underlying musical composition—allegedly sampled was not orig-

inal.

149

In the alternative, it held that any copying was de minimis.

150

On appeal, the Ninth Circuit affirmed the district court and held

that any alleged sampling was de minimis.

151

In doing so, it noted that

“[p]laintiff’s primary expert originally misidentified the source of the

sampled double horn hit.”

152

The expert’s original report said that

both the single and double horn hits were sampled from “Love

Break.”

153

Only after finding the original tracks and listening to the

horn hits in isolation did the expert realize his mistake and conclude

that defendant sampled only the single horn hit and then used that to

create the double horn hit.

154

As the court noted, if “a highly qualified

and trained musician listened to the recordings with the express aim of

discerning which parts of the song had been copied” and was unable

to do so accurately, then surely an “average audience” could do no

better.

155

147

Id. at 875–76. There is also a “breakdown” version in “Vogue.” Id. at 876 & n.4

(“The record does not appear to disclose the meaning of a ‘breakdown’ version of the horn

hit, and neither party attributes any significance to this form of the horn hit.”).

148

The sampling was allegedly from the “instrumental” version of “Love Break,” which

contains twenty-seven single horn hits and twenty-three double horn hits in a pattern. Id.

at 875. There are two versions of “Vogue.” In the “radio edit” version, the single horn hit

occurs five times, the double horn hit occurs fifteen times, and the breakdown version

appears five times. In the “compilation version,” the single horn hit occurs five times and

the double horn hit occurs twenty-five times. Id. at 876. Both versions of “Vogue” use a

different pattern of horn hits than does “Love Break.” Compare id. at 875, with id. at 876.

149

VMG Salsoul, LLC v. Ciccone, No. CV 12-05967, 2013 WL 8600435, at *5 (C.D. Cal.

Nov. 18, 2013), aff’d in part, vacated in part, 824 F.3d 871 (9th Cir. 2016).

150

Id. at *12 (“[N]o reasonable audience would find the sampled portions qualitatively

or quantitatively significant in relation to the infringing work, nor would they recognize the

appropriation.”). Both recordings, with the locations of some of the horn hits marked, are

available on WhoSampled. Madonna’s “Vogue” Sample of The Salsoul Orchestra’s “Ooh, I

Love It (Love Break),” W

AMPLED

, http://www.whosampled.com/sample/26512/

Madonna-Vogue-The-Salsoul-Orchestra-Ooh,-I-Love-It-(Love-Break)/ (last visited June

18, 2017). The horn hits in “Vogue” sound noticeably different from the ones in “Love

Break.” Neither is particularly distinctive.

151

VMG Salsoul, 824 F.3d at 880. The court also found that any infringement of the

musical composition copyright was de minimis. Id. at 879 (“[A] reasonable jury could not

conclude that an average audience would recognize the appropriation of the

composition.”). The court did not reach the issue of originality. Id. at 878 n.6.

152

Id. at 880.

153

Id.

154

Id.

155

Id.

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The court turned next to plaintiff’s argument that infringement

automatically occurs whenever someone copies, without authoriza-

tion, a copyrighted sound recording. Because I agree with the impor-

tant parts of the court’s reasoning, I reference it below in Part III

rather than reproduce it here.

III

INIMIS

EQUIREMENT

HOULD

PPLY TO THE

AMPLING OF

OUND

ECORDINGS

The Ninth Circuit’s reading of the statute—that “the ‘de minimis’

exception applies to infringement actions concerning copyrighted

sound recordings, just as it applies to all other copyright infringement

actions”

156

—is the correct interpretation for three reasons. First, it

better comports with the language and structure of the Copyright Act

than does the Sixth Circuit’s holding that “no substantial similarity or

de minimis inquiry should be undertaken at all when the defendant

has not disputed that it digitally sampled a copyrighted sound

recording.”

157

Second, the legislative history favors the Ninth Circuit’s

reading. And third, preserving the de minimis requirement will better

promote creativity and the other goals of copyright than the Sixth Cir-

cuit’s interpretation would.

A. Why Do We Have Copyright?

The Copyright Act, like other statutes, should be interpreted in

light of its purposes.

158

That is particularly relevant here for two rea-

sons. First, rather than giving an unqualified grant of power to estab-

lish copyright law, the Constitution gives Congress that power “[t]o

promote the Progress of Science and useful Arts.”

159

Second, copy-

right regulates rapidly evolving areas of society—technology and cul-

ture—which supports placing more weight on its general purposes

when text written decades ago fails to provide clear answers.

160

There-

fore, it is necessary to briefly examine the purposes of copyright law.

156

Id. at 874.

157

Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 798 (6th Cir. 2005).

158

See Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 608 (1979) (“As in all

cases of statutory construction, our task is to interpret the words of these statutes in light of

the purposes Congress sought to serve.”).

159

U.S. C

ONST

. art. I, § 8, cl. 8.

160

See Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975) (“When

technological change has rendered its literal terms ambiguous, the Copyright Act must be

construed in light of this basic purpose.”). The last major revision to the Copyright Act was

in 1976. See Copyright Timeline: A History of Copyright in the United States, A

’

NOF

ESEARCH

IBRARIES

, http://www.arl.org/focus-areas/copyright-ip/2486-copyright-timeline

(last visited June 18, 2017).

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“The primary objective of copyright is not to reward the labor of

authors, but ‘[t]o promote the Progress of Science and useful

Arts.’”

161

Under this utilitarian approach, copyright protections are

justified only to the extent that they promote the creation of new

works. If copyright is too weak, then there may be insufficient eco-

nomic incentive to create new works.

162

But when copyright protec-

tion is excessive, the result is the suppression of creativity: The greater

the extent of copyright, the less later artists are allowed to do.

163

Cop-

yright law thus aims to strike a balance between these two risks.

164

When it comes to the sampling of relatively minor portions of

sound recordings,

165

however, the danger of insufficient copyright has

far less weight. The core justification for copyright is that without it,

copies will drive originals from the market by undercutting them on

price. This is possible because the copyist does not bear the fixed costs

of the initial creation and so can price the copy closer to the marginal

cost (the cost of producing one additional copy) than the original cre-

161

Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349 (1991) (alteration in

original) (quoting U.S. C

ONST

. art. I, § 8, cl. 8); accord Fox Film Corp. v. Doyal, 286 U.S.

123, 127 (1932) (“[T]he primary object in conferring the monopoly lie[s] in the general

benefits derived by the public from the labors of authors.”).

162

See Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 Y

ALE

L.J. 283, 292–93 (1996) (footnote omitted) (“[W]ithout copyright, only authors

unconcerned with monetary remuneration would produce creative expression and only

publishers with no need for financial return would invest in selecting, packaging,

marketing, and making such expression available to the public. Without copyright,

creative expression would likely be both underproduced and, no less importantly,

underdisseminated.”). There are, of course, many reasons to create music and other works

besides monetary rewards, such as a desire to communicate ideas or to share your art.

163

See Pierre N. Leval, Toward a Fair Use Standard, 103 H

ARV

. L. R

. 1105, 1109

(1990) (“Notwithstanding the need for monopoly protection of intellectual creators to

stimulate creativity and authorship, excessively broad protection would stifle, rather than

advance, the objective.”); Netanel, supra note 162, at 294 (noting that excessive copyright

risks “chilling discourse and cultural advancement, thus defeating copyright’s essential

democratic purpose”).

164

See Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984)

(noting that copyright requires balancing “the interests of authors . . . in the control and

exploitation of their writings . . . on the one hand, and society’s competing interest in the

free flow of ideas, information, and commerce on the other hand”).

165

Because this Note focuses on the de minimis requirement, it is not necessary to

consider the impact of sampling that is clearly not de minimis. This sometimes occurs in the

mashup genre. Mashups “rely entirely on sampled sources to construct musical collages,”

for example by “superimposing a vocal track from one recording onto the instrumental

track of another.” Menell, supra note 74, at 452–53 (“[Girl Talk’s] sample of Beyonc ´e’s

‘Single Ladies (Put a Ring on It)’ in ‘That’s Right’ is even more cavalier. The section

beginning at 2:44 and running for 70 seconds appropriates the heart of Beyonc ´e’s hit song

with relatively little embellishment.”). Such a sample may be fair use because of its

transformative nature, see supra note 58 and accompanying text, but there is no colorable

claim that the taking is a de minimis one.

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ator can.

166

However, this is a threat only when the copy can substitute

for the original. When song B samples plausibly de minimis portions

from song A, it is unlikely to be a substitute for song A,

167

especially

in cases of cross-genre sampling. As a result, the other half of the cop-

yright balance—the risk that excessive copyright protection will

impede the creation of new works—takes on much greater relative

importance.

B. Statutory Text and Structure

The Ninth Circuit’s reading of the Copyright Act—that the de

minimis requirement applies to sound recordings as to other types of

works—better reflects the text and structure of the Copyright Act

than does the Sixth Circuit’s literal reading. The Sixth Circuit’s statu-

tory argument hinges on the word “entirely” in § 114(b), which states

that the reproduction and derivative work rights “do not extend to the

making or duplication of another sound recording that consists

166

See Netanel, supra note 162, at 292 (footnote omitted) (“Copyright protection is

necessary because, in its absence, unbridled competition from free riders who are able to

copy and distribute the work without paying copyright royalties would drive the price for

user access to its near-zero marginal cost. This free rider problem, in turn, would greatly

impair author and publisher ability to recover their fixed production costs.”).

167

Such samples will necessarily only take a small amount of the original and so are

unlikely to cause any noticeable market harm to the primary market (the market for the

original sound recording itself). Cf. Authors Guild v. Google, Inc., 804 F.3d 202, 224 (2d

Cir. 2015) (“Snippet view . . . produces discontinuous, tiny fragments, amounting in the

aggregate to no more than 16% of a book. This does not threaten the rights holders with

any significant harm to the value of their copyrights or diminish their harvest of copyright

revenue.”). There is one complication. Even if unlicensed de minimis sampling causes no

harm to the primary market for the original sound recording, it could potentially harm the

derivative market—that is, the market for licensed samples. The importance of this

depends on what proportion of the expected revenue from a sound recording comes from

licensing of plausibly de minimis samples. This harm can exist even though the underlying

sampling may be fair use, because the current scope of sample licensing likely goes beyond

what is strictly legally required. See supra notes 93–101 and accompanying text. However,

it is unclear to what degree courts would treat this as a legitimate harm—the Second

Circuit, in particular, has found that in some contexts, harm to the copyright owner

because of an inability to license works for transformative purposes (which includes at

least some sampling) does not count in the market harm analysis of fair use’s fourth factor.

“Since DK’s use of BGA’s images falls within a transformative market, BGA does not

suffer market harm due to the loss of license fees.” Bill Graham Archives v. Dorling

Kindersley Ltd., 448 F.3d 605, 614–15 (2d Cir. 2006) (“In a case such as this, a copyright

holder cannot prevent others from entering fair use markets merely ‘by developing or

licensing a market for parody, news reporting, educational or other transformative uses of

its own creative work.’” (quoting Castle Rock Entm’t, Inc. v. Carol Publ’g Grp., Inc., 150

F.3d 132, 145 n.11 (2d Cir. 1998))). However, this may not have much weight when it

comes to sampling because of the existence of a market—problematic as it may be—for

samples. See Castle Rock, 150 F.3d at 146 n.11 (“[C]opyright owners may not preempt

exploitation of transformative markets, which they would not in general develop or license

others to develop . . . .” (internal quotation marks omitted)).

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entirely of an independent fixation of other sounds, even though such

sounds imitate or simulate those in the copyrighted sound

recording.”

168

While the statutory structure further belies this argu-

ment, no more than a straightforward reading is necessary to reveal

the Sixth Circuit’s error.

The court reasoned that the failure to meet the exception in

§ 114(b) necessarily means that the copyright was infringed.

169

Stated

this way, the court’s error becomes apparent. There are plenty of rea-

sons why a given taking would not infringe the copyright—for

example because the taking is a de minimis one or the resulting work

is not substantially similar. The issue is thus whether § 114(b) elimi-

nates the traditional prerequisites to a finding of copyright infringe-

ment, including the de minimis requirement which “is part of the

established background of legal principles against which all enact-

ments are adopted, and which all enactments (absent contrary indica-

tion) are deemed to accept.”

170

That Congress created a new

exception for sound recordings is not evidence that it intended to

eliminate the existing one.

171

As that intent is not evident in the

text,

172

it must come from elsewhere for the Sixth Circuit to be

correct.

168

17 U.S.C. § 114(b) (2012) (emphasis added).

169

See VMG Salsoul, LLC v. Ciccone, 824 F.3d 871, 884 (9th Cir. 2016) (“In effect,

Bridgeport inferred from the fact that ‘exclusive rights . . . do not extend to the making or

duplication of another sound recording that consists entirely of an independent fixation of

other sounds,’ the conclusion that exclusive rights do extend to the making of another

sound recording that does not consist entirely of an independent fixation of other sounds.”)

(citation omitted) (alteration in original).

170

Wis. Dep’t of Revenue v. William Wrigley, Jr., Co., 505 U.S. 214, 231 (1992).

171

See VMG Salsoul, 824 F.3d at 884 (“A statement that rights do not extend to a

particular circumstance does not automatically mean that the rights extend to all other

circumstances. In logical terms, it is a fallacy to infer the inverse of a conditional from the

conditional.”).

172

See 4 N

IMMER

& N

IMMER

, supra note 46, § 13.03 (“[T]he 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.”). Section 101’s definition of sound recordings also

gives no indication that Congress intended to eliminate the de minimis requirement. See 17

U.S.C. § 101 (2012) (“‘Sound recordings’ are works that result from the fixation of a series

of musical, spoken, or other sounds, but not including the sounds accompanying a motion

picture or other audiovisual work, regardless of the nature of the material objects, such as

disks, tapes, or other phonorecords, in which they are embodied.”); VMG Salsoul, 824 F.3d

at 882 (“[N]othing in the neutrally worded statutory definition of ‘sound recordings’

suggests that Congress intended to eliminate the de minimis exception.”). Likewise,

nothing in 17 U.S.C. § 106, which defines the types of exclusive rights held by the copyright

holder, “suggests differential treatment of de minimis copying of sound recordings.” Id.

While § 106(6) does single out sound recordings for special treatment as regards

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1290 NEW YORK UNIVERSITY LAW REVIEW [Vol. 92:1261

Neither the statutory structure nor the legislative history support

that inference. First, § 102, which lists the types of works eligible for

be treated differently.

173

Second, the very provision the Sixth Circuit

uses to expand the exclusive rights of copyright owners (the result of

eliminating the de minimis requirement) is part of a group of limita-

tions of those rights. Each sentence in § 114(b) expressly limits the

of those rights into that provision quite a stretch.

174

The legislative

history confirms this structural point that § 114 is intended to limit,

not expand, the copyright owner’s rights.

175

A natural question then is whether the word “entirely” adds any-

thing to § 114(b) or instead is mere surplusage. If the Ninth Circuit’s

interpretation did in fact render the word “entirely” redundant, that

would be a strike—though not by any means a dispositive one—

against that interpretation.

176

But without the word “entirely,”

§ 114(b) is ambiguous:

The exclusive rights of the owner of copyright in a sound recording

under clauses (1) and (2) of section 106 do not extend to the making

or duplication of another sound recording that consists [ ] of an

independent fixation of other sounds, even though such sounds imi-

tate or simulate those in the copyrighted sound recording.

177

This variation on the statute is subject to a pair of possible readings.

The first is the same as the Ninth Circuit’s reading of the actual statute

(with the word “entirely”): A sound recording that is composed of

performance “by means of a digital audio transmission,” 17 U.S.C. § 106(6), “nothing in its

text bears on de minimis copying.” VMG Salsoul, 824 F.3d at 882.

173

See 17 U.S.C. § 102 (a simple list of categories); see also VMG Salsoul, 824 F.3d at

881–82 (stating that this provision “treats sound recordings identically to all other types of

protected works; nothing in the text suggests differential treatment, for any purpose, of

sound recordings compared to, say, literary works”).

174

See id. at 883 (“Like all the other sentences in § 114(b), the third sentence imposes

an express limitation on the rights of a copyright holder . . . . We ordinarily would hesitate

to read an implicit expansion of rights into Congress’s statement of an express limitation

on rights. Given the considerable background of consistent application of the de minimis

exception across centuries of jurisprudence, we are particularly hesitant to read the

statutory text as an unstated, implicit elimination of that steadfast rule.”).

175

See H.R. R

. N

. 94-1476, at 61 (1976) (“The approach of the bill is to set forth the

various limitations, qualifications, or exemptions in the 12 sections that follow.”).

176

See Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 299 n.1 (2006)

(“While it is generally presumed that statutes do not contain surplusage, instances of

surplusage are not unknown.”); see also Begay v. United States, 553 U.S. 137, 153 (2008)

(Scalia, J., concurring) (“In any event, the canon against surplusage merely helps decide

between competing permissible interpretations of an ambiguous statute; it does not

sanction writing in a requirement that Congress neglected to think of.”).

177

17 U.S.C. § 114(b) (2012) (replacing “entirely” with brackets).

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nothing but “independent fixation[s] of other sounds” does not

infringe the copyright of a sound recording it merely imitates.

178

The

second, and admittedly less persuasive, reading is that a sound

recording that combines samples of a copyrighted sound recording

with the “independent fixation of other sounds” necessarily does not

infringe.

179

While it is not particularly likely that a court would have

adopted this second interpretation, adding the word “entirely” helps

to clarify Congress’s intent, and thus it is not mere surplusage.

And even if this second reading is not plausible, the surplusage

argument still provides no support for the Sixth Circuit’s interpreta-

tion. If, following the first reading above, the word “entirely” is to be

read into the statute on the basis that it is implied by the word “con-

sists,” the Sixth Circuit’s argument is equally (un)persuasive with or

without the word “entirely” being in the text. That is, the Sixth

Circuit’s argument does not really build off of the word “entirely”

itself, but rather off of the supposed inference that a failure to qualify

for an exception per se indicates a violation of the underlying rule.

180

As a result, the canon against surplusage provides no substantial sup-

port for the Sixth Circuit’s interpretation.

Thus, based on the statutory text and structure, the correct

reading of § 114(b) is that mimicking a copyrighted sound recording

does not infringe the sound recording copyright

181

and only that, i.e. it

does not impliedly eliminate the de minimis requirement for sound

recordings. Of course, that mimicking may infringe the copyright in

the musical composition.

C. Legislative History

If the Copyright Act is ambiguous regarding whether the de

minimis requirement applies to sound recordings, then a court may

178

Id.

179

Id.

180

See supra notes 169–71 and accompanying text.

181

Both the Sixth Circuit and the Ninth Circuit agree that mimicking a copyright sound

recording does not infringe the copyright in the sound recording (though it may infringe

the copyright in the musical composition). Compare Bridgeport Music, Inc. v. Dimension

Films, 410 F.3d 792, 800 & n.8 (6th Cir. 2005) (noting that “the world at large is free to

imitate or simulate the creative work fixed in the recording so long as an actual copy of the

sound recording itself is not made” subject to the caveat that “in the case of a recording of

a musical composition the imitator would have to clear with the holder of the composition

recording that mimics the copyrighted recording is not an infringement, even if the

mimicking is very well done, so long as there was no actual copying.”). Bridgeport’s caveat

is overstated, the use might be de minimis or qualify as fair use—even the Sixth Circuit

appears to concede that the de minimis requirement applies to musical compositions. See

supra note 131.

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1292 NEW YORK UNIVERSITY LAW REVIEW [Vol. 92:1261

consult legislative history in interpreting the Act.

182

The Sixth Circuit

was quick to dismiss the use of legislative history here on the grounds

that it would be “of little help because digital sampling wasn’t being

done in 1971,”

183

the year that Congress adopted federal copyright

protection for sound recordings.

184

That assertion is of questionable

relevance

185

: There was at least some sampling—just not digital—

being done by that point.

186

Indeed, what is arguably the first sam-

pling lawsuit occurred in 1956.

187

In any case, the argument is by no

means a knockout blow against using legislative history, though it may

caution against over reliance.

188

While it does not appear that

Congress specifically considered musical sampling, its general goals

can shed light on how courts should interpret the statute. Congress’s

purpose was clear: not to prevent unlicensed sampling but rather to

prevent the “widespread unauthorized reproduction of phonograph

182

See Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005) (“[T]he

authoritative statement is the statutory text, not the legislative history or any other

extrinsic material. Extrinsic materials have a role in statutory interpretation only to the

extent they shed a reliable light on the enacting Legislature’s understanding of otherwise

ambiguous terms.”).

183

Bridgeport, 410 F.3d at 805. To the extent that this is true, it argues for placing

greater weight on policy reasoning. See supra note 160 and accompanying text.

184

See Pub. L. No. 92-140, 85 Stat. 391 (codified as amended in scattered sections of 17

U.S.C.).

185

See 4 N

IMMER

& N

IMMER

, supra note 46, § 13.03, at n.114.16 (“Although the panel

was obviously correct that digital sampling was not practiced in the 1970s, it overlooked

the fact there was no bar under contemporaneous technology from choosing either to

recapture an entire sound recording or only a portion. Accordingly, it is eminently sensible

to consult the legislative history . . . .”).

186

The Mellotron, which appears to be the first tool for sampling, was invented in the

late 1940s. History, T

AGICAL

ELLOTRON

, http://paris.cs.wayne.edu/~ay8235/

works.html (last modified Aug. 22, 2013) (“Essentially, the Mellotron is a giant tape

playback machine.”) [https://web.archive.org/web/20121218161807/. By allowing musicians

to incorporate pre-recorded sounds into their works, it was “in effect, an early sampler.”

EFFREY

PAULDING

& S

AHARA

ISNASH

, C

AREER

UILDING

HROUGH

IGITAL

AMPLING AND

EMIXING

5 (2008); see also T

AGICAL

ELLOTRON

, supra (“These

recordings can be of anything, from individual instruments to sections to people singing to

rhythms—the only limitation is that each sample may only last between seven and eight

seconds.”).

187

“Within popular music, the earliest example of quoting directly from a sound

recording was Bill Buchanan and Dickie Goodman’s 1956 hit ‘The Flying Saucer’” which

featured a “fake radio announcer who is interrupted by short fragments from pop songs”

written by stars like Fats Domino and Elvis. M

EOD

& D

OLA

, supra note 1, at 38–39

(noting that “[t]he record sold over a million copies” and led to multiple copyright

lawsuits); see also Michael Jack Kirby, Buchanan and Goodman, W

ACK

TTACK

http://www.waybackattack.com/buchananandgoodman.html (last visited June 23, 2017)

(identifying both legal threats leading to settlement and a lawsuit as occurring in 1956).

188

Cf. VMG Salsoul, LLC v. Ciccone, 824 F.3d 871, 884 (9th Cir. 2016) (“[T]he state of

technology is irrelevant to interpreting Congress’ intent as to statutory structure.”).

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records and tapes” by “so-called ‘record pirates.’”

189

The effects of

wholesale commercial piracy are at best minimally relevant to the

debate over de minimis sampling: Congress’s key concern—

preventing artists from losing revenue due to competition with record

pirates

190

—does not apply to plausibly de minimis sampling because

the sampling works do not compete with the original.

191

While the legislative history for the 1971 amendment does not

specifically mention the de minimis requirement, there is evidence

that Congress intended for this standard threshold test to apply for

sound recordings. The House Report for the general revision of copy-

right law in 1976 states that “infringement takes place whenever all or

any substantial portion of the actual sounds that go to make up a copy-

righted sound recording are reproduced.”

192

This fits with Congress

being concerned about wholesale piracy, not sampling. This “all or

any substantial portion of” language is inconsistent with a supposed

Congressional intent of protecting artists from unlicensed sampling,

especially unlicensed de minimis sampling.

Nor does Congress’s failure to explicitly overturn Bridgeport pro-

vide much support for the Sixth Circuit’s holding.

193

This is doubly so

given that numerous district courts have rejected Bridgeport, which

makes Congressional silence somewhat ambiguous.

194

189

H.R. R

. N

. 92-487, at 2 (1971). The focus on wholesale piracy as opposed to

sampling is clear. See id. (“While it is difficult to establish the exact volume or dollar value

of current piracy activity, it is estimated by reliable trade sources that the annual volume of

such piracy is now in excess of $100 million.”); Julie D. Cromer, Harry Potter and the

Three-Second Crime: Are We Vanishing the De Minimis Defense from Copyright Law?, 36

N.M. L. R

. 261, 278 (2006) (“[T]he legislative history of section 114 . . . suggests that the

purpose behind the section was to prevent compilers from creating pirated music albums

or ‘greatest hits’ compilations without the consent of the initial recorder.”).

190

See H.R. R

. N

. 92-487, at 2 (“The pirating of records and tapes is not only

depriving legitimate manufacturers of substantial income, but of equal importance is

denying performing artists and musicians of royalties . . . .”).

191

See infra notes 248–54 and accompanying text.

192

H.R. R

. N

. 94-1476, at 106 (1976) (emphasis added); see also VMG Salsoul, 824

F.3d at 884 (“[W]hen enacting [§ 114(b)], Congress clearly understood that the de minimis

exception applies to copyrighted sound recordings, just as it applies to all other

copyrighted works. In sum, the statutory text, confirmed by the legislative history, reveals

that Congress intended to maintain the de minimis exception for copyrighted sound

recordings.”).

193

The plaintiff in VMG Salsoul raised this argument. The Ninth Circuit quickly

dismissed it, noting that “congressional inaction in the face of a judicial statutory

interpretation, even with respect to the Supreme Court’s own decisions affecting the entire

nation, carries almost no weight.” VMG Salsoul, 824 F.3d at 886. For this proposition the

court cited Alexander v. Sandoval, which stated that “[i]t is ‘impossible to assert with any

degree of assurance that congressional failure to act represents’ affirmative congressional

approval of the Court’s statutory interpretation.” 532 U.S. 275, 292 (2001) (quoting

Patterson v. McLean Credit Union, 491 U.S. 164, 175 n.1 (1989)).

194

VMG Salsoul, 824 F.3d at 887.

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Lastly, as a general matter, the impact of the Bridgeport rule is to

grant broader protection—with respect to the reproduction right—to

holders of copyrights in sound recordings as opposed to other types of

works, which are not protected against de minimis copying. This result

is inconsistent with Congress’s desire to “not grant [sound recordings]

any broader rights than are accorded to other copyright proprie-

tors.”

195

While the proper weight to be given to legislative history can

be debated, it is clear that Congress did not intend to eliminate the de

minimis requirement for sound recordings. The Sixth Circuit’s deci-

sion is thus particularly troubling because the de minimis requirement,

as noted above, “is part of the established background of legal princi-

ples against which all enactments are adopted, and which all enact-

ments (absent contrary indication) are deemed to accept.”

196

D. Policy

The rule adopted in VMG Salsoul—that the de minimis require-

ment applies to sound recordings, just as it does for other types of

copyrightable works—is also the superior outcome on policy grounds.

Most importantly, it is more likely to promote musical creativity and

the production of new works than Bridgeport’s harsh alternative. The

general reasons for this are addressed in Part I.D above. This section

elaborates on that argument by showing why the alternatives to the

unlicensed sampling of de minimis portions of sound recordings are

insufficient. It then addresses arguments supporting Bridgeport’s rule

and finds them ultimately unpersuasive.

1. Alternatives to Unlicensed Sampling Fall Short

Bridgeport’s strict rule—“[g]et a license or do not sample”

197

—

would not pose a significant barrier to creativity

198

and the production

of new works if the alternatives were sufficient. Unfortunately, in

many cases, none of the other options—recreating the sound,

licensing the sound recording, or using samples from public domain or

pre-1972 sound recordings—are adequate substitutes to unlicensed de

minimis sampling of copyrighted sound recordings.

195

H.R. R

. No. 92-487, at 7 (1971) (noting that Act creates a “limited copyright”).

196

Wis. Dep’t of Revenue v. William Wrigley, Jr., Co., 505 U.S. 214, 231 (1992); see also

VMG Salsoul, 824 F.3d at 883 (“Given the considerable background of consistent

application of the de minimis exception across centuries of jurisprudence, we are

particularly hesitant to read the statutory text as an unstated, implicit elimination of that

steadfast rule.”).

197

Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 801 (6th Cir. 2005).

198

As discussed in Part I.A, sampling is often an important part of musical creativity;

making sampling harder means reducing the number of avenues for creative expression.

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a. Recreating the Sound

Sometimes it will be true that, as the Sixth Circuit wrote, “if an

artist wants to incorporate a ‘riff’ from another work in his or her

recording, he is free to duplicate the sound of that ‘riff’ in the

studio.”

199

But that will often be impractical or insufficient. Recre-

ating sounds in a studio can be very expensive compared to sampling

software, which can run from free to several hundred dollars.

200

contrast, “generating a single sample could cost some $2000 for just

two session musicians,”

201

restricting the creativity of less-established

artists.

202

Even for artists who can afford to recreate the original, there is

no guarantee that this will be an adequate substitute for the sample.

The sound of a well-known guitar riff is not just the sound of a generic

guitar playing certain notes; the impact on the listener—especially the

ability to conjure up the original—depends on the particular instru-

199

Bridgeport, 410 F.3d at 801. While any such recreation of the sound would

potentially violate the copyright in the musical composition, that is true of sampling as

well. Thus, in either case there would need to be some reason the recreation does not

infringe the musical composition copyright. That might be because: the composition is not

original (even if the sound recording is); the infringement is de minimis; the second author

licensed the composition; or the taking is fair use. Because the musical composition

and accompanying text, this does not affect the transaction costs argument, see infra notes

207–10 and accompanying text, as there is likely to be little overlap between the

transaction costs incurred licensing the musical composition and those incurred licensing

the sound recording.

200

See The Best Music Sampling Software, B

EST

OFTWARE

EVIEW

(Sept. 23, 2016),

https://www.bestsoftwarereview.org/best-sampling-software/ (listing six options from $99 to

$599); Mark V, 15 Free Music Production Software Programs, H

AKERS

(Aug. 19,

2014), http://hiphopmakers.com/free-music-production-software (listing several free

software programs capable of sampling).

201

Ashtar, supra note 21, at 308 (noting that “[p]rofessional studio rates range from

between $50–80 per hour and musicians require $600 per session”). Given that artists may

want to use more than one recreation in a song, and that any one recreation may involve

multiple instruments, the costs can easily go far beyond what many amateur and lower-

budget professionals can afford. This may be true even if the specific estimate Ashtar uses

is too high. See, e.g., Drum Tracks by Nate Barnes (Rose Hill Drive, Mary Chapin

Carpenter, Ryan Bingham) for $110, A

IRGIGS

, https://www.airgigs.com/online-drum-

sessions/4476/Drum-Tracks-By-Nate-Barnes [http://www.webcitation.org/6oUk07avh]

(offering three takes plus two revisions for a drum track for $110).

202

See Chris Richards, Opinion, The Court Case That Changed Hip-hop—From Public

Enemy to Kanye—Forever, W

ASH

. P

OST

(July 6, 2012), https://www.washingtonpost.com/

opinions/the-court-case-that-changed-hip-hop—from-public-enemy-to-kanye—forever/

2012/07/06/gJQAVWr0RW_story.html (“Jay-Z and Kanye can afford to pay the sample

rates, but not the kids starting out in their own little home studio in their house . . . . And

that, to me, is what’s holding back creativity.”) (quoting Hank Shocklee, producer for

Public Enemy).

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1296 NEW YORK UNIVERSITY LAW REVIEW [Vol. 92:1261

ment, gear, and acoustics of the recording space.

203

And “recreating”

lyrics by singing them is a poor substitute for sampling.

204

Even if the sound recording can be reproduced with sufficient

fidelity to sound like the original, reproducing the sound means losing

the artistic value of appropriation.

205

Even wealthy artists then may be

unable to achieve through reproduction what they could through sam-

pling. And for artists of all resource levels, the greater difficulty of

reproducing sounds rather than sampling them impairs the creative

process and deprives the public of works they could have had but for

unjustified limitations on sampling.

b. Licensing

Unable to recreate the sound with sufficient fidelity and cost effi-

ciency, the second artist might try to license the sound recording

instead. The Sixth Circuit endorsed this, saying it would be viable

because “the market will control the license price and keep it within

bounds.”

206

This optimism is, unfortunately, misplaced. Because of

high transaction costs and the lack of meaningful competition, the

market for sample licenses does not function well.

Transaction costs make licensing samples far more expensive than

it would be otherwise and call into question the efficiency of the

203

See Ashtar, supra note 21, at 307 (“Interpolating is a demanding process, as the right

musicians and equipment must be attained for each sound involved. . . . Furthermore, the

gear needs to correspond to the particular sound for faithful renditions, such as period

microphones, outboards, amplifiers, and instruments. Beyond these crucial components,

the acoustics of the physical recording space are often difficult to recreate—Stax Records

sessions, for instance, were held in a modestly-converted abandoned movie theatre.”

(footnote omitted); see also Azran, supra note 21, at 79 (“Unfortunately, the replayed,

non-sampling version often fails to achieve the aesthetics of the original, sampling

version.”).

204

See Ashtar, supra note 21, at 307 (asking “how are distinctive voices to be

convincingly replicated?”).

205

See id. at 308 (“[T]here is artistic value to the act of incorporating the original

recording, akin to Picasso’s and Braque’s use of contemporary newspapers in their

collages.”); Azran, supra note 21, at 79 (“Because hip-hop began as an appropriative art

form, the sample aesthetic is likely to enhance the work’s cultural cachet, thus increasing

its expressive value. In other words, there is value in the subversive quality intrinsic in a

work which borrows from another.”); cf. M

EOD

& D

OLA

, supra note 1, at 101

(arguing that the claim that samplers should instead just recreate the sound “misses the

point, because many feel that there is aesthetic value and shared cultural resonance in

using a particular sound recording”); M

EOD

& D

OLA

, supra note 1, at 191 (“[W]hen

you can’t sample, I think it definitely loses a big part of what hip-hop is.”) (quoting Trugoy

of De La Soul).

206

Bridgeport, 410 F.3d at 801 (“The sound recording copyright holder cannot exact a

license fee greater than what it would cost the person seeking the license to just duplicate

the sample . . . .”).

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market for samples.

207

Licensing requires navigating an “ad hoc net-

work of artists, music attorneys, sample clearinghouses . . . , and

record labels” “oriented toward sample-by-sample negotiations” in

order to track down the owners of the two copyrights for each sample,

and then negotiating with each one.

208

The transaction costs alone can

run “a few thousand dollars” per license per sample,

209

which may be

far higher than the costs of actually creating the album.

210

The second problem with the market for samples licenses is the

monopoly issue—for any given sample, there is only one seller. Sam-

ples are generally not interchangeable. If you want to conjure up “Oh,

Pretty Woman,” you won’t have much success with another rock

ballad; you need the actual source material.

211

And because “[i]t is

typically necessary for artists to create the sampled works before

buying licenses for the samples used,” it isn’t practical for an artist to

shop around for the cheapest sample of X type.

212

Once the artist has

207

See Wendy J. Gordon, Fair Use As Market Failure: A Structural and Economic

Analysis of the Betamax Case and Its Predecessors, 82 C

OLUM

. L. R

. 1600, 1608 (1982)

(“When the transaction costs outweigh the net benefits that the parties would otherwise

anticipate from a transfer, then the presence of the transaction costs may block an

otherwise desirable shift in resource use.”); cf. M

EOD

& D

OLA

, supra note 1, at 160

(“[I]n a relatively small market like the market for samples, prices might not be reasonable

or economically efficient. It’s possible that distortions, such as the concentration of record-

label ownership, allow copyright owners to overcharge for samples.”) (footnote omitted).

208

See Drew B. Hollander, Note, “Why Can’t We Be Friends?”: How Congress Can

Work with the Private Sector to Solve the “Digital Sampling Conundrum,” 18 V

. J.L. &

ECH

. 229, 250 (2014) (“Licensing therefore involves locating multiple rights holders, any

one of which possesses unilateral veto power over clearance.”); see infra note 213 and

accompanying text. On top of these are the costs of hiring attorneys or a sample clearance

agency. See M

EOD

& D

OLA

, supra note 1, at 165 (citing one such professional as

charging $500 for each clearance involved in simple cases, and thousands in more difficult

ones).

209

EOD

& D

OLA

, supra note 1, at 182 (quoting music lawyer Whitney

Broussard). Licensing each sample requires at least a license for the sound recording and

the musical composition. But when the sampled work itself samples earlier works, industry

norms say that those earlier works must be licensed too, even if they aren’t included in the

portion sampled. See id. at 182 (“But if one counts the songs within songs embedded in the

full version of the Deee-lite song—as the current licensing system requires one to do—the

already-absurd number of licenses that Gillis and his label have to acquire would multiply

further beyond reason.”).

210

See The Un-Authorized, Un-Official Story, 2

MANYDJS

, http://web.archive.org/web/

20061030122456/http://www.2manydjs.com/v2/story.htm (last visited Feb. 25, 2017)

(describing how an album that took seven days to make required “more than six months of

hard labour, 865 e-mails, 160 faxes and hundreds of phone calls” to attempt to license “187

different tracks[,] from which 114 got approved, 62 refused and 11 were un-trackable”).

211

Cf. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 588 (1994) (“When parody

takes aim at a particular original work, the parody must be able to ‘conjure up’ at least

enough of that original to make the object of its critical wit recognizable.”).

212

See Azran, supra note 21, at 77 (“It does not make sense for the appropriation

musician to pay for a license before knowing how the finished song will sound. In addition,

for licensors to assess how much they will charge, they need to hear the finished song in

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1298 NEW YORK UNIVERSITY LAW REVIEW [Vol. 92:1261

written the song with a given sample, they have little bargaining

power and few options: They can pay whatever the copyright holder

demands; risk a lawsuit; or abandon or rewrite the song.

213

The result should not be surprising. Market failures—combined

with an insistence on licensing far more samples than artists used

214

—have led to excessive costs that curtail creativity and artistic

expression. As one scholar puts it: “[S]ample licensing across the rap,

hip hop, and mashup genres reveals tremendous transaction costs and

market distortions.”

215

These costs can make it unviable to commer-

cially release certain forms of music—forcing musicians to choose

between: dropping the sample (possibly hurting the finished product);

disguising the sample and/or taking the chance that they won’t be

sued; or releasing non-commercially, through underground outlets, or

by doing only live performances.

216

And because advances are often

required to sample,

217

“only larger organizations with more cash on

hand can afford them.”

218

The case of Paul’s Boutique, the critically acclaimed Beastie Boys

album containing an estimated 100 to 300 samples,

219

helps illustrate

this. Due to the high costs of licensing and the insistence on licensing

even the most minor samples, the album would not be commercially

viable today. With the help of a music lawyer, McLeod and DiCola

made a table of the estimated costs to license sound recordings and

order to determine how much of the original sample is incorporated into the new work.

Thus, appropriation musicians first find the samples that they want to use and then

compose the new song.”); accord M

EOD

& D

OLA

, supra note 1, at 119 (“[M]ost

licensors want to hear the song before they grant permission, because they understandably

want to have some input.”).

213

See Azran, supra note 21, at 77 (“This situation places the licensee at a

disadvantage . . . . [T]he licensee has already invested time and money into creating a new

song. The prospect of losing out on those sunk costs gives the licensor greater bargaining

power, and allows him to extract a higher fee than he otherwise might have secured.”).

Some artists are unwilling to allow samples of their works, or refuse to license for use in

certain types of music, see supra note 95 and accompanying text, in which case the artist’s

options are even more limited.

214

See supra notes 97–100 and accompanying text.

215

Menell, supra note 74, at 504.

216

See M

EOD

& D

OLA

, supra note 1, at 194–98. “Creating a sample-based work

live in concert (i.e., mixing the music live, in real time) without sample licenses implicates”

the public performance right of the musical composition (the public performance right for

sound recordings is limited to digital audio transmissions) and potentially the derivative

work right. See id. at 298 n.8. These licenses may be cheaper, and some venues have

blanket licenses that would cover this. See id. at 198, 298 n.9.

217

See id. at 159 (“[M]any sample licenses require an advance—instead of, or even in

addition to, a royalty payment . . . .”).

218

Id. at 159 (“It has literally knocked the smaller artists out of the game altogether.

Only the ones who are very, very well off can afford to sample anymore.”) (quoting sample

clearance expert Pat Shanahan).

219

See supra notes 91–92 and accompanying text.

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musical compositions based on the popularity of the sampled artist

and how extensively the sampling work uses the sample.

220

For

example, licensing a sound recording from a medium-profile artist

would cost $2500, or $.01/copy, if the sample’s role in the new work

was small. If the sampled artist was a superstar, that would be

$100,000, or $.15/copy.

221

McLeod and DiCola started with 125 identifiable samples on the

album and classified each based on their table (using the royalty rate

rather than a flat fee).

222

The resulting “conservative estimate” shows

that the Beastie Boys would, given the actual sales of the album, end

up losing $19.8 million.

223

Nor would selling more solve this. In fact,

each sale would throw the artists deeper into debt. Given a retail price

of $18.98, McLeod and DiCola estimate the authors would receive

$2.10 per copy sold, before licensing costs.

224

Licensing the sound

recording copyrights alone would cost $5.92 per album, while licensing

the musical composition copyrights would cost an additional $4.15 per

album, for a total loss per album of $7.87.

225

The authors reach a similar result for Public Enemy’s Fear of a

Black Planet. They estimate this album uses eighty-one samples and

would result in a net loss to the artist per album sold, before transac-

tion costs, of $4.47.

226

Indeed, the “long-planned reissue[ ]” of Fear of

a Black Planet is “sitting on the record company’s shelf because they

couldn’t successfully get all the permissions needed for the expanded

deluxe editions—which count as ‘new release[s]’” that would need

220

See M

EOD

& D

OLA

, supra note 1, at 204–05.

221

Id. at 205 tbl.2. For the musical composition, sampling would cost $4000 or 10%

ownership of the musical composition copyright if the sampled artist had a medium-profile

and the sampling work made only a minor use of the sample. See id. If the sampled artist

was a superstar, the typical cost would be 100% ownership of the musical composition. Id.

222

See id. at 204–06 (“To turn the royalty share for musical compositions copyrights into

dollars, we multiplied by the statutory rate of $0.091 . . . .”).

223

Id. at 209–10. This figure includes $125,000 in transaction costs (250 copyrights at

$500 each). The authors give three reasons why the expected costs (and thus loss) in

practice would likely be higher. First, they used only “easily identifiable samples”; the

artists confirmed that there were others not included. Id. at 210–11. Second, they “assumed

that all sampled artists were contacted before the album’s release to achieve the lowest fee

possible.” Id. at 211. And third, they “assumed a minimum of transaction costs by simply

applying a $500 fee per license as might be charged by a sample clearance house rather

than factor in all the costs incurred when copyright holders are difficult to find, when they

‘hold out,’ and so on.” Id. While concluding that the estimate was likely to be lower than it

would actually cost today, McLeod and DiCola do note that it is possible that some

have been cheaper (given the album’s sales) if some of the licenses had been for a flat fee

rather than a per-copy royalty. Id.

224

Id. at 208 tbl.4.

225

Id. at 208 tbl.4 (before transaction costs).

226

Id. at 207 tbl.3 (again using an artist’s share before licensing costs of $2.10).

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1300 NEW YORK UNIVERSITY LAW REVIEW [Vol. 92:1261

new licenses.

227

The high costs of licensing have thus made an entire

type of music commercially unviable,

228

and curtailed the ability of

less well-funded musicians to include just a few licensed samples on

their albums. While a de minimis requirement is no magic bullet, by

removing the need to license some samples, it would help enable this

kind of sample-heavy music. It would also shift bargaining power

towards samplers to the extent that they could credibly threaten to use

only a de minimis part of a sample instead of a greater amount.

Nor has the music industry proven willing to deal with this

through blanket or standardized licensing.

229

While such licensing

exists in some areas of music licensing—for example in public per-

formance rights

230

—that kind of efficient structure does not exist for

sampling. Despite the existence of sample clearinghouses, “[a]ll

sample clearances are handled on a case-by-case basis and they all

have to be negotiated.”

231

The resulting negotiations take into account

many factors unique to each sample, including its length, importance

to the original work and to the new work, and the popularity of the

sampler and the original artist.

232

This in turn increases the transaction

costs of licensing.

c. Sampling Unprotected Works

Finally, an artist might try to avoid these issues by sampling

sound recordings not covered by copyright law. They may use public

domain works, or sample snippets lacking sufficient originality to

receive copyright protection.

233

They might also, as the Sixth Circuit

suggests, rely solely on pre-1972 sound recordings, which are not cov-

227

Id. at 213.

228

Id. at 212 (“[W]e conclude that various aspects of the licensing system—law,

business practices, cost—have made at least some forms of musical collage totally

impractical.”); see also id. at 28–29 (“By the 1990s, high costs, difficulties negotiating

licenses, and outright refusals made it effectively impossible for certain kinds of music to

be made legally, especially albums containing hundreds of fragments of sound within one

album.”).

229

One reason for this may be that it would entail copyright holders (who may or may

not be the original artist) giving up control over when someone else can use their work.

230

See Music in the Marketplace, A

. S

’

YOF

OMPOSERS

, A

UTHORS

, & P

UBLISHERS

https://www.ascap.com/~/media/BCF785E6949646D7899FC54B7C39F20D.pdf (last visited

Mar. 12, 2017) (“A blanket license permits the license holder to perform any or all the

works in the performing rights organization’s repertory.”).

231

EOD

& D

OLA

, supra note 1, at 149 (quoting music attorney Shoshana Zisk).

232

Id. at 149, 154.

233

See Adrienne K. Goss, Codifying a Commons: Copyright, Copyleft, and the Creative

Commons Project, 82 C

.-K

ENT

L. R

. 963, 969 (2007) (“[A]ll ‘original works of

authorship fixed in any tangible medium of expression’ are automatically protected . . . .

[A] creator who wanted to allow public use of a work would have to expressly disclaim

rights.”) (footnote omitted) (quoting 17 U.S.C. § 102(a) (2012)).

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ered by federal copyright law.

234

This is an insufficient solution to the

problems created by requiring licensing of de minimis samples. Such

works are likely to represent only a small slice of current popular

music. As a result, reliance solely on this option would leave samplers

less able to create compelling works that comment on or criticize

aspects of contemporary culture, and would also impair the continuing

ability of artists to reference or build on other works.

235

2. The Arguments Supporting Bridgeport Are Unpersuasive

Bridgeport offers a variety of policy arguments to support its

holding that “no substantial similarity or de minimis inquiry should be

undertaken at all when the defendant has not disputed that it digitally

sampled a copyrighted sound recording.”

236

None of these are suffi-

ciently persuasive to make this rule desirable given its negative impact

on creativity.

At first glance, the Sixth Circuit’s argument that its bright-line

rule will be more predictable and easier to implement than the de

minimis or substantial similarity inquiry appears accurate: holding that

an act infringes in 100% of circumstances rather than only some of the

time is simpler.

237

But the court fails to consider what happens next.

When an act of sampling is found to be de minimis, the analysis ends

immediately. However, a finding that a sample is infringing leads not

to a conclusion but rather a fair use analysis (assuming defendants

raise the issue).

238

Fair use “requires a fact-intensive and context-spe-

cific evaluation”

239

and is infamously unpredictable.

240

There is thus a

234

See Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 804 (6th Cir. 2005). As

the court recognizes, these recordings may still be subject to state copyright regimes or

common law protections. See id. at 804 n.20.

235

See supra notes 25–34 and accompanying text.

236

Bridgeport, 410 F.3d at 798.

237

See supra notes 129–30 and accompanying text.

238

See Ringgold v. Black Entm’t Television, Inc., 126 F.3d 70, 76 (2d Cir. 1997) (“[T]he

fair use defense involves a careful examination of many factors, often confronting courts

with a perplexing task. If the allegedly infringing work makes such a quantitatively

insubstantial use of the copyrighted work as to fall below the threshold required for

actionable copying, it makes more sense to reject the claim on that basis and find no

infringement, rather than undertake an elaborate fair use analysis in order to uphold a

defense.”); Azran, supra note 21, at 106 (noting that the Bridgeport rule means the “court

will have to conduct a four-prong fair use analysis instead of applying the much simpler de

minimis doctrine”).

239

Fox News Network, LLC v. TVEyes, Inc., 124 F. Supp. 3d 325, 330 (S.D.N.Y. 2015).

240

See Amy Adler, Fair Use and the Future of Art, 91 N.Y.U. L. R

. 559, 564 (2016)

(“[S]cholars ha[ve] routinely lamented [fair use] as so ‘impossible to predict’ that it was

‘useless.’ As Larry Lessig put it succinctly in 2004, ‘fair use in America simply means the

right to hire a lawyer.’ Indeed, one scholar has termed fair use ‘one of the most intractable

and complex problems in all of law.’”) (footnote omitted). Adler notes that “[o]ther

scholars have pushed back on the claim that fair use is incoherent and unpredictable” but

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1302 NEW YORK UNIVERSITY LAW REVIEW [Vol. 92:1261

tradeoff

241

: The Bridgeport rule means X fewer de minimis and sub-

stantial similarity inquiries, but Y more fair use inquiries (with X>Y).

Because fair use appears to be the costlier and less predictable of

these inquires,

242

the net result of the Bridgeport rule is likely to be

higher litigation costs and greater uncertainty.

Nor is fair use—the third factor of which looks at “the amount

and substantiality of the portion used in relation to the copyrighted

work as a whole”

243

—likely to be sufficiently protective of artists’

ability to sample small portions of another’s sound recordings.

244

Courts place too little weight on this factor for that to occur.

245

As one

scholar notes, fair use is “too costly and risky to use” in the sampling

context.

246

Instead, even a “quantifiably insignificant” sample might

rejects this at least as applied to the visual arts, arguing that the result of recent cases

involving “several of the biggest art stars” has been “differing and capricious outcomes.”

Id. at 564–66.

241

This analysis assumes the number of lawsuits remains constant. There are two main

influences on that number. First, the Bridgeport rule appears to have led to less sampling,

and thus fewer possible lawsuits. See supra notes 97–100. Second, because the Bridgeport

rule makes it easier for plaintiffs to prevail, it may increase the number of lawsuits, even if

defendants are more willing to settle given the unfavorable change in law. It is not obvious

which influence predominates. Sykes identifies another possible tradeoff: Because the

Bridgeport rule only applies when defendants concede the fact of sampling, it is possible

that defendants will deny sampling and force a potentially expensive substantial similarity

analysis with expert testimony on that issue, rather than conceding the issue. See Sykes,

supra note 38, at 776 (arguing that this would lead to a “more inefficient allocation of

resources”).

242

See supra notes 238–40. This is not to say that the de minimis inquiry is necessarily a

simple one. See supra note 66 and accompanying text. Both inquires are often resolved on

motions for summary judgment. Compare Cromer, supra note 189, at 273 (“Despite

isolated decisions to the contrary, the question of de minimis copying can be resolved by

the trial court on summary judgment, even though the amount copied is a question of

fact.”) (footnote omitted) with Ned Snow, Judges Playing Jury: Constitutional Conflicts in

Deciding Fair Use on Summary Judgment, 44 U.C. D

AVIS

L. R

. 483, 485 (2010) (“Today,

fair use is nearly always decided on summary judgment.”).

243

17 U.S.C. § 107(3) (2012).

244

See Cromer, supra note 189, at 291 (“[T]his third factor has not been a reliable way

to permit second-comers to incorporate a quantifiably insignificant amount of a

copyrighted work into a later work.”). But see Bill Graham Archives v. Dorling Kindersley

Ltd., 448 F.3d 605, 611 (2d Cir. 2006) (“In total, the images account for less than one-fifth

of one percent of the book. . . . [W]e are aware of no case where such an insignificant

taking was found to be an unfair use of original materials.”).

245

See Cromer, supra note 189, at 291 (“[T]he quadruplicate nature of the fair use

defense dissuades a court from considering any one factor alone to negate a finding of

infringement. . . . [C]ourts have readily acknowledged that they contribute less significance

to the third factor as related to the other three factors of the fair use test.”).

246

Menell, supra note 74, at 510. Music lawyer Whitney Broussard concurs, saying that

“fair use is a noble concept, but as a business strategy it’s really, really weak. . . .You really

can’t rely on that for business purposes.” M

EOD

& D

OLA

, supra note 1, at 239.

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not be fair use if “the portion of the work used is qualitatively

significant.”

247

It would be easy to defend the Bridgeport rule if sampling dis-

couraged creativity by other artists, perhaps because songs containing

samples of their works substitute for the original and thus compete

with them in the marketplace. The available evidence weighs against

this conclusion.

248

First, when a plausibly de minimis amount is taken,

it is unlikely to substitute for the original simply because it will need

to be either quite short or not take the heart of the original.

249

Second,

cross-genre sampling is especially unlikely to substitute for the orig-

inal. Third, sampling can increase the popularity of the sampled work,

sometimes even putting the older work back on the top of the

charts.

250

Indeed, a recent empirical study shows that sampling may

actually increase sales of the original.

251

The study compared sales in

the year before and the year after the release of Girl Talk’s album All

Day for 237 of the songs sampled (songs for which data was available

that were expected to peak in popularity at least 30 months before the

release of All Day).

252

It found that “the average sampled song sold

over 1300 more copies in the year following the release of All Day

than the year preceding,” an increase of 3.2%.

253

The study provides

247

Cromer, supra note 189, at 291.

248

See David Mongillo, The Girl Talk Dilemma: Can Copyright Law Accommodate

New Forms of Sample-Based Music?, 9 U. P

ITT

. J. T

ECH

. L. & P

’

1, 31 (2009) (“[I]t is

unlikely that music consumers who are interested in buying an original song that Girl Talk

samples will turn to Girl Talk as a substitute. . . . [C]ustomers do not buy Girl Talk albums

because they want to hear any of the particular samples in isolation, but because they want

to hear how the samples are combined into a new whole.”).

249

That is, a sample that is both quantitatively and qualitatively significant will not be

de minimis.

250

See Melissa Hahn, Digital Music Sampling and Copyright Policy—A Bittersweet

Symphony? Assessing the Continued Legality of Music Sampling in the United Kingdom,

the Netherlands, and the United States, 34 G

. J. I

’

& C

OMP

. L. 713, 716 (2006)

(“[T]here are many instances where the use of a sampled song can be instrumental to the

success of both artists . . . . For example, when Eminem sampled Dido’s song ‘Thank

You’—on his single ‘Stan,’ both artists’ albums topped the music charts, and Dido credited

Eminem for introducing her album to a much broader audience.”) (footnotes omitted).

251

See Schuster, supra note 3, at 445.

252

The album contained 374 samples. Schuster was unable to get sales data for some, id.

at 466, and the others were excluded because they either hit their peak on the Billboard

Hot 100 within the 30 months before the release of All Day or were otherwise released

recently enough that they could be expected to peak within those 30 months. See id. at 470

(“It is a near tautology that a song will have its greatest sales when it is highest on the

Charts. A song that was high on the Charts at (or shortly before) the time that All Day was

released would almost necessarily see a drop in sales from the peak Chart entry during the

relevant time period of this study. Such a drop in sales is irrelevant to the Market Effect

Consideration in this investigation . . . .”).

253

Id. at 474. This finding is statistically significant at the 92.5% level. Id. (“Restated, if

237 songs (the size of this sample set) were randomly selected and their respective sales

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some evidence that sampling is unlikely to harm the market for the

original. Indeed, because many of Girl Talk’s samples are much longer

than what would plausibly be de minimis,

254

if sampling has a negative

effect on the sales of the original, this effect would likely be stronger

for Girl Talk’s samples than for the plausibly de minimis samples—

because the greater length makes them more plausible substitutes.

Though by the same token, a de minimis taking is unlikely to boost

the market for the original by much.

The Sixth Circuit’s distinguishing between intellectual takings

and physical takings—with physical takings necessarily involving the

taking of “something of value” because the sounds themselves are

sampled—is likewise unpersuasive.

255

Physical takings also occur for

other types of copyrightable works, and yet the de minimis require-

ment still applies.

256

In addition, “something of value” will always be

taken when one author uses the expression of another, physical taking

or not.

257

It is thus hard to find a meaningful reason to distinguish

these types of takings besides that in the case of a physical taking the

labor of the artist was taken—a proposition in tension with Feist’s

rejection of the “sweat of the brow” theory of copyright.

258

And even

numbers for the two one-year time periods studied, an increase in sales of this magnitude,

or possibly greater, would only be seen approximately 7.5% of the time.”).

254

See id. at 467 (finding that the average length of a sample on All Day was thirty-

seven seconds, based on the 263 samples for which data was available).

255

Bridgeport, 410 F.3d at 801–02 (“[E]ven when a small part of a sound recording is

sampled, the part taken is something of value. . . . It is a physical taking rather than an

intellectual one.”).

256

VMG Salsoul, 824 F.3d at 885 (“[T]he possibility of a ‘physical taking’ exists with

respect to other kinds of artistic works as well, such as photographs, as to which the usual

de minimis rule applies. A computer program can, for instance, ‘sample’ a piece of one

photograph and insert it into another photograph or work of art.”).

257

Even without physically taking a part of the copyrighted work, the second author still

gains by either “sav[ing] costs”—because they have a pre-existing template—or by “adding

something to the new” work—for example, some particularly compelling part of the earlier

work’s expression or a new layer of meaning through the appropriative act—the same

things Bridgeport uses to justify its rule for “physical takings.” Bridgeport, 410 F.3d at 802.

The Ninth Circuit rejects Bridgeport’s physical takings for a somewhat opposite reason—

not that all takings involve something of value, but rather that truly de minimis takings,

even when physical, don’t:

The reason for the [de minimis] rule is that the plaintiff’s legally protected

interest [is] the potential financial return from his compositions which derive

from the lay public’s approbation of his efforts. If the public does not recognize

the appropriation, then the copier has not benefitted from the original artist’s

expressive content. Accordingly, there is no infringement.

VMG Salsoul, 824 F.3d at 881 (citation and internal quotation omitted) (second alteration

in original).

258

See VMG Salsoul, 824 F.3d at 885 (rejecting, on the basis of Feist, Bridgeport’s

distinction between physical and intellectual takings); see also Feist Publ’ns, Inc. v. Rural

Tel. Serv. Co., 499 U.S. 340, 352–53 (1991) (rejecting the “sweat of the brow” theory which

saw copyright as “a reward for . . . hard work”).

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if a distinction between physical and intellectual takings is useful and

sound, that does not mean Congress actually intended a different rule

for physical takings.

259

ONCLUSION

The Sixth Circuit’s holding in Bridgeport that the de minimis

requirement does not apply when defendants admit they sampled a

copyrighted sound recording has helped to usher in a music industry

culture with an obsessive focus on licensing even the smallest frag-

ments of songs. The result has been to stifle musical creativity and to

deprive society of valuable works.

If that holding was the correct interpretation of the statute, then

recourse could only be had via Congress. But as this Note makes

clear, Bridgeport rests on a flawed reading of the Copyright Act. And

because the Ninth Circuit in VMG Salsoul recognized that Congress

did not eliminate the de minimis requirement for sound recordings,

there is a circuit split which presents an opportunity for the Supreme

Court to step in and right Bridgeport’s wrong.

Doing so would not fix all the problems in the modern world of

sample licensing—nor would it remove all the existing unjustified bar-

riers to creativity—but it would help. It would also promote the pur-

poses of copyright by removing an important barrier to musical

creativity without noticeably affecting the incentives to create—

because works that are even arguably de minimis are no substitute for

the original. The de minimis requirement is a powerful safety valve

that helps ensure copyright’s exclusive monopolies do not unduly con-

strain later artists. For no other type of work are the protections of

restore that state of affairs for sound recordings on a nationwide scale,

thus helping to ensure that artists can use this “fundamental building

block”

260

without an excessively costly and inefficient licensing regime

standing in their way.

259

VMG Salsoul, 824 F.3d at 885 (“[E]ven accepting the premise that sound recordings

differ qualitatively from other copyrighted works and therefore could warrant a different

infringement rule, that theoretical difference does not mean that Congress actually adopted

a different rule.”).

260

See supra note 69 and accompanying text.