Re: Bridgeport Music v. Dimension Films

Joe Gratz writes on his blog today on the 6th Circuit ruling in Bridgeport Music v. Dimension Films here. He notes that, when it comes to the digital sampling of copyrighted material, apparently any amount is worthy of judicial notice. He writes:

In Bridgeport Music v. Dimension Films, the Sixth Circuit sets forth a bright-line rule for digital sampling: “Get a license or do not sample.”

In the usual copyright infringement analysis, one of the threshhold questions is whether the copying was de minimis – so small and trifling that it’s a waste of time to fight about it. If I copy three or four notes from your song into my song, a court would probably find that, while I have infringed, my infringement is de minimis and I’ll prevail if you sue me.

The Sixth Circuit holds that in the context of digital sampling, there’s no such thing as a small or trifling sample. Why?

The Sixth circuit used a literal reading of Section 114(b) of Title 17. The court writes:

Section 114(b) provides that “[t]he 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.” In other words, a sound recording owner has the exclusive right to “sample” his own recording. We find much to recommend this interpretation. (Bridgeport Music v. Dimension Films)(emphasis added)

The courts reasoning went further. Infringements should still need to pass a minimal threshold. For instance, three notes of a song would not pass this threshold. However, the court reasons that the value of the notes recorded is greater than the notes themselves, which makes sense on some level. Production costs can be significant, perhaps even enormous. If that value is distributed to each portion of the recording, even small silvers might have some protectable value, and therefore should be protected by the court.

Regrettably, this seems to give yet another "big stick" to the recording industry which it can wave threateningly over the heads of even the smallest of infringements.

9/11/04 - ADDED Trackback

Comments

[Aaron Hand]

It's important to include why the court ruled this way:

To begin with, there is ease of enforcement. Get a license or do not sample. We do not see this as stifling creativity in any significant way. It must be remembered that 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. Second, the market will control the license price and keep it within bounds.(9) 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 in the course of making the new recording. Third, sampling is never accidental. It is not like the case of a composer who has a melody in his head, perhaps not even realizing that the reason he hears this melody is that it is the work of another which he had heard before. When you sample a sound recording you know you are taking another’s work product.

The point the court is trying to make, it seems, is that you can't just digitally record or resample a sound because it is easier than recreating it yourself.

[Bryan Lee]

The court does make three important justifications for it's reasoning. Sounds could be recreated rather than sampled. Samples could be licensed instead of being recreated. And sampling does not happen accidentally. But the court's argument strikes me as a weak one, and I'm unpersuaded by it.

The court makes a distinction between a composer's "accidental" sampling of a melody in his head, as opposed to the "intentional" sampling of the digital artist. My understanding of de minimis is limited, but why does the state of mind of the infringer matter? Saying an infringement is de miminis, is not the same as saying there was no wrong. Just the amount infringed is not worth getting the judicial system involved. In both cases, the amount copied has not changed. (Though there is perhaps a difference in the production value, as noted above.)

The courts suggestion that a sampler should either 1) attempt to get a license from the copyright holder or 2) re-create his own copy of it, seems naive - even disingenuous. The copyright holder may choose not to license (or license at a prohibitively high value) and the sampler simply may not have the resources to re-create his own copy. This really could put a damper on sampling.

Another way to view it, from an expected cost value. Where as before a sampler could avoid a protracted legal battle with a declaratory judgment, now it seems that sampling could now be open for more costly litigation, raising its costs.

[Bryan Lee]

Ran across Lessig's comments on Bridgeport Music. For his take on it click here.

[Blane Durham]

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