That, however, is not the prevailing view of courts in the music world. In this field at least one court, the Sixth Circuit Court of Appeals, has changed the de minimus landscape a little. With apologies for that horrible pun, here are a couple of background notes.

First, in the recording business, copyrights of a recording are frequently owned by several people. Typically the composer or publisher owns the copyright to the words and music, while the recording artist or record label owns the copyright to the recording itself. Second, there seems to be an accepted
acknowledgement within the music industry, especially concerning the “hip-hop” genre, that “digital sampling” from other recordings is either fair use or de minimus copying for copyright purposes. In the case before the Sixth Circuit Court, the allegedly infringing recording had taken a two-second section of a guitar solo from another recording, lowered the pitch, and then looped it to extend it to 16 beats.

When confronted with the lawsuit, the defendant offered two arguments: (1) that the section was not protected by copyright law because it was not original, and (2) that the copied section was legally insubstantial.

The judges blew off both positions. Addressing the first argument, they noted that, as regarded the composition copyright, the recording was not original. But the copyright law required a different analysis for the copyright owner of the recording. And they believed the originality requirement was met when the sounds were fixed in the master recording.

As to the second argument, and this is probably the groundbreaking ruling, they simply adopted a literal reading of the copyright statutes and determined that the law provides the owner of the recording copyright alone the right to prepare a derivative work in which the actual sounds of the recording are
rearranged, remixed or otherwise altered in sequence or quality. The court said that if you cannot pirate the whole sound recording, neither can you “lift” or “sample” something less than the whole.

In short: “Get a license or do not sample.”

Predictably, the decision provoked a storm of comments from the music world, especially from agents and attorneys who represent hip-hop musicians. The influential Recording Industry of America has filed an amicus curiae (“friend of the court”) brief requesting that the court reconsider its decision. Other members of the music industry have different views, noting that since the recording copyright is rather weak, the decision represents sound reasoning.

In any event, perhaps the old “Four Beat Rule” I have heard bandied about in agencies and marketing firms is really dead, although I suspect the obstinate attitudes and practices with respect to “tiny takings” will continue.

It’s like this, brothers and sisters:

A composer’s palate is ample
To avoid stealing an example
‘Cause the word is down
From the man in the gown
Be original, thou shall not sample!