Applying the de minimus Exception to Sound Recordings: Digital Samplers Are Neither Thieves Nor Infringers

Applying the de minimus Exception to Sound Recordings: Digital Samplers Are Neither Thieves Nor Infringers

Kayla Mullen

When a new song plays on the radio, listeners may experience a feeling of nostalgia due to the use of familiar chords that exist in the public domain. Music artists are now able to create this feeling and a resulting hit by taking sound bites from older songs and mashing them with new material, which is known as “sampling” in the music industry. “Sampling” is defined as “the actual physical copying of sounds from an existing recording for use in a new recording, even if accomplished with slight modifications such as changes to pitch or tempo.” This method of appropriation involves physically taking from a prior work, which sets sound recordings apart from other copyrightable works. Sometimes the prior work is unrecognizable, but fragments are still there. Sounds that may be undetectable to the average ear, in some cases less than a second in length, are seamlessly incorporated by the technological advances that have made digital sampling commonplace in the music industry today. While copyrighted sound recordings have been protected for over forty years by the Copyright Act of 1976, whether digital sampling constitutes copyright infringement may now depend on where in the country a copyright infringement case is litigated.

For over ten years, Bridgeport Music, Inc. v. Dimension Films was the only federal court of appeals decision to address whether the de minimis exception applied to copyrighted sound recordings. In that case, the Sixth Circuit established a bright-line rule that any copying of a sound recording, even a trivial sample, constituted prima facie copyright infringement. On June 2, 2016, the Ninth Circuit held in VMG Salsoul, LLC v. Ciccone that the de minimis exception, which excludes copying that is trivial or insignificant from actionable infringement, applies to all copyrighted works, including sound recordings. The court found that Madonna’s hit song Vogue digitally sampled .23 seconds from the song Ooh I Love It (Love Break), but the court did not find that this sampling constituted copyright infringement. Now, the question is whether a de minimis exception applies, and whether it should apply, in cases of copyrighted sound recordings.

The holding in VMG Salsoul creates a circuit split between the Ninth Circuit and the Sixth Circuit. If a music artist is creating music in Music City, Nashville, Tennessee, obtaining a license is the logical option to avoid being called a thief and facing severe statutory damages. In the Sixth Circuit, copying a sound recording and incorporating that sample into one’s own work without a license was equated to stealing in Bridgeport when the court created a bright-line rule that eliminated the applicability of the de minimis exception to sound recordings. Neither the Sixth Circuit nor the Ninth Circuit brings fair use into its analysis, but the Bridgeport court did mention that the fair use defense would be permissible on remand. However, even with a reasonable fair use defense, a license often seems like the only way to avoid a costly legal battle. Increasingly, more people opt for licenses rather than take the risk of being unsuccessful with a fair use argument. On the other side of the country in Los Angeles, California, if someone intentionally samples without a license, it will not be regarded as copyright infringement if the user only used a small sampling of the original song. That may seem like an unjust result if one reads sampling as stealing. However, infringement is not the same as theft. According to Professors Buccafusco and Fagundes, neither intent of the user nor morality belongs in the standard copyright analysis, but as can be seen in Bridgeport, these considerations often become part of copyright infringement cases.

The circuit split created by the Ninth Circuit in VMG Salsoul by definition will be problematic because different results will be reached in cases with similar fact patterns. Copyright law is ambiguous in many ways. This Note recognizes that ambiguity is an unavoidable necessity given that copyright law is made up of standards that provide flexibility rather than rigid rules, but whether a de minimis exception applies in cases of copyrighted sound recordings should no longer be unclear. Due to the recentness of VMG Salsoul, neither Congress nor the Supreme Court has yet taken action to clarify which circuit has it right. Likewise, legal scholars have yet to comment on the impact and soundness of the VMG Salsoul decision, but Bridgeport has been criticized over the last decade.

While legal scholarship has not definitively said whether the de minimis exception should apply to sound recordings, this Note argues that the de minimis exception should apply in accordance with the Ninth Circuit’s holding in VMG Salsoul. Furthermore, this Note weighs policy concerns such as predictability, morality, and licensing to reach this determination. The result in Bridgeport incentivizes obtaining a license, leading users to become more conservative, causing licensing practice to expand, and stifling creativity with the risk of prohibitive costs. The dissenting opinion in VMG Salsoul argued that Congress’s more than ten-year silence post-Bridgeport may have signaled approval of the holding in the Sixth Circuit; however, Congress cannot weigh in on every decision. According to the majority opinion in VMG Salsoul, Congress intended to maintain the de minimis exception for copyrighted sound recordings. Moving forward, 17 U.S.C. § 114(b) will need to be clarified to settle this split. Whether clarification comes from Congress, the Supreme Court, or another circuit court, it should reflect the result in VMG Salsoul by establishing that the de minimis exception applies to all copyrighted works, including sound recordings.

Part I of this Note discusses the history and development of copyright law, the current legal tests, and the emergence of copyright protection for sound recordings. Part II examines the Bridgeport–VMG Salsoul split over whether the de minimis exception applies to copyrighted sound recordings. Part III evaluates the validity of policy concerns such as predictability, morality, and licensing practices and proposes clarifying the existing statutory language to establish that the de minimis exception should be applicable in cases involving copyrighted sound recordings.

99 J. Pat. & Trademark Off. Soc’y 731(2017)

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