Artists who want to sample copyrighted music should think twice about incorporating other artists’ copyrighted music into their work. Section 114(b) of Copyright Act provides that a copyright owner retains “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.” Music copyright owners have the exclusive right to prepare “samples” of their own work. Artists seeking to sample other artists’ copyrighted work must contact the copyright owner to license the copyrighted material. Artists who sample copyrighted music in violation of the copyright owner’s rights may be liable to the copyright owner for $750 to $30,000 in statutory damages per infringement. If the court finds the infringement was willful, damages can reach $150,000 per infringement.

In Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Circ. 2005), Bridgeport and other music owners and publishers filed a copyright infringement claim against Dimension Films and associated entities on grounds Dimension included in its movie I Got The Hook Up a song that sampled a portion of a song owned by plaintiffs. Plaintiff Westbound Records’ claims were for infringement of the sound recording “Get Off”. Sound recordings and their underlying musical compositions are separate works with their own distinct copyrights.

The recording “Get Off” opens with a three-note combination solo guitar “riff” that lasts four seconds. According to one plaintiff’s expert, the infringing work contained a sample from that guitar solo. The authors of the infringing work altered the three notes from an arpeggiated chord in the following way:

- Lowered the pitch
- Looped the segment
- Extended the time to 16 beats

An arpeggiated chord is a chord whose notes are struck individually in sequence rather than together. The defendants argued in the district court that (1) the three-note structure in “Get Off” was not original and therefore not protected by copyright law and (2) the sample of “Get Off” is legally insubstantial and therefore the sample does not amount to actionable copying under copyright law. The district court ruled that even if a work is copyrighted, a defendant may still prove that any element of the work standing alone is not entitled to copyright protection if that element is not original. Mindful of the limited number of notes and chords available to composers, the district court explained that the question turned not on the originality of the chord but, rather, on the use of and the aural effect produced by the way the notes and the chord are played, especially where copying of the sound recording is at issue. The district court found, after carefully listening to the recording of “Get Off,” that a jury could reasonably conclude that the way the arpeggiated chord is used and memorialized in the “Get Off” sound recording is original and creative and therefore entitled to copyright protection.

The Sixth Circuit granted plaintiff Westbound Records’ request to reverse the district court’s grant of summary judgment to defendant No Limit Films LLC and remanded to the district court. In its initial summary of sampling law, the court ruled that a sound recording owner has the exclusive right to “sample” its own recording. Further, the court determined that a substantial similarity or de minimis inquiry was not required on a copyright infringement claim that was based on sampling since the sound recording owner had exclusive right to sample his own recording and the alleged infringer did not dispute that it digitally sampled the recording.

The court makes clear that a musician must “get a license or do not sample.” However, the court notes 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. Duplication in this manner is not sampling. It may, however, still constitute copyright infringement, even in the case of “subconscious copying” as presented in the seminal George Harrison case, Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F.Supp. 177 (D.C.N.Y. 1976) (musician liable for copyright infringement for subconsciously copying melody he was found to have previously heard and, in the opinion of the court, did not deliberately copy).

Elaborating on its analysis, the Sixth Circuit questioned why one may reproduce three notes from a copyrighted recording but may not, by way of sampling, take the same three notes for inclusion in his own work. The court instructed first that the Copyright Act, a portion of which appears above, requires this reasoning. Second, the court determined that even when the material sampled from the copyrighted source is small, the material still has value. Selection and inclusion of the sampled material by the artist represents sufficient proof of this value because the sampling would (1) save costs, (2) add something to the new recording, or (3) both. For the sound recording copyright holder, it is not the “song” but the sounds that are fixed in the medium of his choice. When those sounds are sampled, they are taken directly from that fixed medium. It is a physical taking rather than an intellectual one.

The court wisely concludes that as this case and other companion cases make clear, it is cheaper to license than to litigate. If you are considering licensing sound recordings, you have been contacted by a copyright owner regarding licensed material, or you are a copyright owner seeking to enforce your rights, you should contact counsel experienced in pursuing and protecting the rights of copyright owners.