A Copyfighter’s Musings

In Bridgeport Music v. Dimension Films, the Sixth Circuit has ruled that there is no de minimis defense to sampling a sound recording and the substantial similarity test does not apply.  The court stated throughout the opinion that a bright line rule that rejected all sampling, no matter how small, should be adopted.  The court did not reach the issue of fair use, however.  (Note that this is different from the Beastie Boys case.  That involved the copyright in the composition exclusively.  This decision focused on the sound recording.) 

In its gross oversimplification, this decision rivals the Biz Markie case, which began “Thou shalt not steal.” Let me give you the summation up front: To this court, the issue is merely a matter of competing market actors, and all we need to do is create an efficient market.  Any threat to creativity is just the market at work.  No attention is paid to the public’s interest.  (BTW, I’m going to treat this a little out of order, to align related parts of the argument.)

The court emphasizes at the outset and throughout that a bright line rule is far and away preferred.   This predetermines the entire opinion, for it would be very difficult to create a bright line rule allowing sampling.  What, would you use the number of seconds sampled? The number of instruments?  A rule based on the de minimus or substantial similarity defenses certainly couldn’t (and shouldn’t) allow all sampling. 

The court provides many reasons for going with this bright line rule, but the most important lies in this paragraph: “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.”

For the moment, let’s get over the shock at arguing “We do not see this as stifling creativity in any significant way.”  For now, the important point is that the court is arguing in favor of creating a clearly defined property right, which will lead to the efficient allocation of resources. The court makes this clear in its next statement: “[T]he market will control the license price and keep it within bounds.  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.”

Once a market is created, an efficient result will be produced.  Apparently, creating a property right in this way will lead to a sufficiently creative environment.  First of all, this argument about the license fee’s ceiling assumes that the “riff” is de minimis, insubstantial, or otherwise a fair use, because the covers compulsory expressly states that “the arrangement shall not change the basic melody or fundamental character of the work.” Thus, as long as the composition is under copyright, sampling a subsection of the composition might infringe.  More importantly, all this assumes that the applicable tests and defenses that usually apply are merely ways around market failure and not a way to provide breathing room for other creators.  This also ignores the non-economic incentives not to license (e.g., sampling is a threat to the artist’s integrity) and the socially inefficient pricing for uses with social benefit outside what the licensor (and licensee) can capture in monetary form (e.g., satire) (See Mark Lemley, “The Economic of Improvement in Intellectual Property Law,” 75 Texas Law Review 989). 

In this way, the purpose of copyright – incentivizing creativity for the public’s benefit – doesn’t easily square with this approach.  Indeed, the fact that copyright law uses a fact-specific, balancing approach, rather than a bright line rule, in other derivative works contexts means nothing to this court.  Sure, as the court notes, balancing tests are costly and time-consuming for the judicial system.  And, sure,  the court’s right that it’s the first to consider digital sampling of a sound recording and thus it’s creating a new rule.  But it’s not as if courts have never had to deal with these complicated questions. In fact, when treating this thorny area of copyright law, courts have figured out a way to deal with these questions in the form of the de minimis and substantial similarity tests. The court does not fully consider the illogic in requiring this ease of enforcement for sampling a recording, while using the fact-specific tests for sampling from a composition.

To try to explain this illogic, the court makes a less-than-satisfactory statutory construction argument.  The court takes the statute (“The exclusive right of the owner of copyright in a sound recording under [the section 106 right to prepare derivative works] 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.”) and argues:

“The import of this language is that it does not matter how much a digital sampler alters the actual sounds or whether the ordinary lay observer can or cannot recognize the song or the artist’s performance of it. Since the exclusive right encompasses rearranging, remixing, or otherwise altering the actual sounds, the statute by its own terms precludes the use of a substantial similarity test.”

It’s a possible reading, I suppose, but not the only or best reading.  Congress was expressly limiting the right, and it didn’t necessarily abrogate any typical limitations to infringement actions.  Literal copying can be insubstantial or de minimis.  Consider the rights of a book author.  Though the Copyright Act does not explicitly state this, the derivatives right implicitly gives him the right to rearrange, remix, and otherwise alter the actual words he wrote.  Does that definitionally mean quoting a single sentence would be infringing?  Not necessarily. (See 4-13 Nimmer on Copyright

Filed by Derek Slater at 6:18 pm under General news
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