The Copyright Thread: The De Minimis Exception in Music Sampling

Discussion in 'Industry News' started by TonyG, May 29, 2018.

  1. TonyG

    TonyG Guest

    As promised, this is a thread on the de minimis exception or de minimis use doctrine. It is part of The Copyright Thread, a series of articles exploring copyright related issues in the United States. https://audiosex.pro/threads/the-copyright-thread.38499/

    For those members not familiar with the term, de minimis is the colloquial maxim for the Latin phrase de minimis non curat lex, which translates to the law does not concern itself with trifles. In essence, the de minimis defense asserts a lack of substantial similarity.

    The substantial similarity test seeks to determine whether there is a significant likeness between the alleged infringing work and the original copyrighted work, both quantitatively and qualitatively. To reach this conclusion, the test used most often by the courts is whether the allegedly infringing work is recognizable to an average audience member.

    Whether the Copyright Act allows a de minimis exception to music sampling depends on the court's own statutory interpretation of section 114(b) of the Copyright Act of 1976. Section 114(b) states in pertinent part that:

    The exclusive right of the owner of copyright in a sound recording under clause (1) of section 106 is limited to the 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. The exclusive right of the owner of copyright in a sound recording under clause (2) of section 106 is limited to the right to prepare a derivative work in which the actual sounds fixed in the sound recording are rearranged, remixed, or otherwise altered in sequence or quality. 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.

    As of this writing there is conflict in the Federal Circuit courts interpretation of Section 114(b). Let me explain.

    The Sixth Circuit in the seminal case of Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 800 (6th Cir. 2005) established a black-letter rule that all digital music sampling done without licensing is infringement. The court instructed musicians flatly to get a license or do not sample. In so doing, it rejected the notion that a de minimis sample does not violate the copyright owner's exclusive rights.The court thus interpreted Section 114(b) as providing sound recording owners with the exclusive right to sample their own recordings.The court reasoned that Section 114(b) says sound recording holders’ rights do not extend to the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though sounds imitate or simulate those in the copyrighted sound recording.The sample in question in Bridgeport was merely a two-second guitar riff from George Clinton Jr. and the Funkadelic's song “Get Off Your Ass and Jam”. This two-second sample from the song was copied, or “looped,”and extended for sixteen beats in the song “100 Miles and Running", which was used in the sound track of the film, I Got the Hookup.The sample appears in five places in “100 Miles” with each looped segment lasting approximately 7 seconds.

    In 2016, the Ninth Circuit in VMG Salsoul LLC v. Ciccone, 824 F.3d 871(9th Cir.2016) decided to confront Bridgeport head on and explicitly formalized the divide by creating a circuit split. The court found that Madonna’s use of a 0.23 second-long sample of a single horn hit from the 1983 song, “Love Break,” in her 1990 recording of “Vogue,” did not violate copyright laws.The court came to its decision by applying the de minimis exception, The court concluded that a general audience would not be able to identify the sample as a recording from “Love Break". In its interpretation of section 114(b), the court noted that the third sentence in section 114(b) imposes an express limitation on the rights of a copyright holder in stating that the exclusive rights of the owner of a copyright in a sound recording do not extend to the making or duplication of another sound recording with certain qualities.

    This conflict among the circuits is troublesome in the realm of copyright. Inconsistent rules among the circuits will lead to different levels of protection in different areas of the country, even if the same alleged infringement is occurring nationwide. If this rift remains unresolved, it will continue to send a wave of uneasiness across the music industry that will chill the art of music sampling and drown out the revived sounds of songs past. Up until them it is Nashville v. L.A.

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    The information in this post is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should construed as legal advice from Audiosex or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this thread without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.
     
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  3. TonyG

    TonyG Guest

    The Bridgeport Case



    A two-second sample from the guitar solo was copied, the pitch was lowered, and the copied piece was"looped" and extended to 16 beats. This sample appears in five places; specifically, at 0:49, 1:52, 2:29, 3:20 and 3:46.
     
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  4. TonyG

    TonyG Guest

    The VMG Salsoul Case


    The horn hits occur at intervals of approximately 2 to 4 seconds in two different segments: between 3:11 and 4:38, and from 7:01 to the end, at 7:46.The general pattern is single-double repeated, double-single repeated, single-single-double repeated, and double-single repeated. Many other instruments are playing at the same time as the horns.


    The single horn hit occurs once,the double horn hit occurs three times, and a “breakdown” version of the horn hit occurs once.They occur at 0:56,1:02, 3:41, 4:05, and 4:18. The pattern is single-double-double-double-breakdown. As with Love Break, many other instruments are playing at the same time as the horns.
     
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  5. Herr Durr

    Herr Durr Guest

    valid message
     
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  6. TonyG

    TonyG Guest

    Off-topic... but ain't over yet. They had oral arguments in March.
     
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  7. Herr Durr

    Herr Durr Guest

    valid message
     
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  8. Luka

    Luka Platinum Record

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    Thank you, thank you, thank you! @Herr Durr is joking but you are like a judge when it comes to explaining legal issues. Better than the one in Trump's case. :guru:The way you explained the de minimis exception made me understand this concept for the first time. Posting the examples was genius! Keep these articles coming.
     
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  9. Herr Durr

    Herr Durr Guest

    valid message
     
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  10. KungPaoFist

    KungPaoFist Platinum Record

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    Heavy structural similarities, this is hilarious! For some reason I feel like the Oompa Loompa song in Willy Wonka had more similarities :rofl:
     
  11. Herr Durr

    Herr Durr Guest

    valid message
     
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  12. saltwater

    saltwater Rock Star

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    its time to call the doctor
     
  13. KungPaoFist

    KungPaoFist Platinum Record

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    Oh wow, I just read this.... I had no idea this was a potential grey area, I think I'm going to have to start ripping some vinyl drum kits.
     
  14. filtersweep

    filtersweep Platinum Record

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    i only found out yesterday that the VOgue video.. was directed by David Fincher..
     
  15. TonyG

    TonyG Guest

    Counselor @Herr Durr let's keep this thread on topic as to no cause confusion. I wish I could move your posts here:https://audiosex.pro/threads/the-copyright-thread-criminal-infringement-in-the-us.38500/
    In my opinion "Stairway to Heaven" is one of the most egregious examples of copyright infringement ever perpetrated in the music world.
     
  16. TonyG

    TonyG Guest

    If you do, just keep away from the Sixth Federal Circuit Court Jurisdiction and remember this:

    The information in this post is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should construed as legal advice from Audiosex or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this thread without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.:guru:
     
  17. Herr Durr

    Herr Durr Guest

    valid message
     
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  18. KungPaoFist

    KungPaoFist Platinum Record

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    Quality discaimer :like:, I am totally researching this more because it was totally new to me.

    Guys, you only need the vinyl samp to add grit/fat/crunch and then you add other spice on top to make the sound penetrate ear drums.
     
  19. Herr Durr

    Herr Durr Guest

    valid message
     
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  20. KungPaoFist

    KungPaoFist Platinum Record

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    bruhh.. this shits delicious, the chicks love it
     
  21. TonyG

    TonyG Guest

     

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