I have an interesting hypothetical for you. Let’s say you’re a music producer and you want to sample just a small portion of a song you think is hot. You plan to play around with it so it doesn’t sound exactly like the original. You’re going to add so many musical elements to and around the sampled portion that the end result doesn’t sound like the sample. What do you do? Do you need to get clearance from the original song’s owner/publisher? Good question.

Earlier this month, the United States Court of Appeals for the Ninth Circuit gave an answer. The interesting thing is, however, its answer is different from the answer given by the United States Court of Appeal for the Sixth Circuit several years ago. This causes what is known as a “split in the circuits” which means, in this instance, federal copyright law is actually different depending on where your lawsuit is brought in the country. The Ninth Circuit, by far the largest in the country, covers California, Nevada, Arizona, Alaska, Idaho, Montana, Oregon, Washington, Hawaii, Guam and the Northern Mariana Islands. The Sixth Circuit covers Tennessee, Kentucky, Ohio and Michigan.

Now for the facts of the case. You remember Madonna’s hit song “Vogue,” right? Well, Madonna was sued for copyright infringement alleging that her hugely successful song included a sample from an earlier song called “Love Break.” An added twist in this case was the artist who recorded Love Break also worked on Vogue. He, a co-defendant in the lawsuit, is the one who took a “horn hit” from Love Break, modified it and incorporated it into Vogue. (At least for summary judgment purposes those facts were taken to be true due to the evidence presented.)

Under U.S. Copyright Law, for an unauthorized use of a copyrighted work to be actionable, the use must be significant enough to constitute infringement. Even when copying is conceded, no legal consequence will follow from that fact unless the copying is substantial. In other words, the copying must be more than “de minimus” for the plaintiff to win.

Madonna and her co-defendants were able to convince the district court to grant summary judgment in their favor based on a de minimus use theory. The plaintiff then appealed to the Ninth Circuit. Under the “de minimus exception” to copyright infringement for musical works, “if the average audience would not recognize the appropriation,” there is no infringement. After listening to both songs, the district court found and the Ninth Circuit affirmed that “a reasonable juror could not conclude that an average audience would recognize the appropriation of the horn hit.” This conclusion was based in large part on the fact that the horn hit is very short (less than a second) and it occurs only a few times in Vogue and does not sound identical to the horn hits in Love Break.

This is where the two circuits part ways. Under Sixth Circuit law, the de minumus exception does not apply to copying from sound recordings (“sampling”). In the Sixth Circuit, the established law is that any unauthorized copying from copyrighted sound recordings constitutes infringement. Because the Ninth Circuit had not squarely address this issue with respect to sound recordings in the past, the plaintiff argued for the adoption of the Sixth Circuit per se rule in the Ninth Circuit as well. The Ninth Circuit refused. And so there you have it. A small, modified sample in your new song might constitute copyright infringement per se. Or, whether or not it constitutes infringement may depend on if the average audience would recognize that you took it from another song. The outcome could simply depend on which federal court hears your case. I have a feeling the Supreme Court may indeed resolve this circuit split in the coming years. We’ll see. In the meantime, all you who create music, be careful out there.

©2016 Albert F. Davis, Esq.

This law update is intended for general information purposes only. One should not consider the update legal advice or legal opinions relating to any specific facts or circumstances. An attorney-client relationship is not created by reading this update. Please feel free to contact A.F. DAVIS LAW for further information.