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Electric Dance Music: Creating Fair Use in Music Sampling Under the Copyright Law

EDM

Section I:  Introduction

In today’s world, the growing popularity of Electronic Dance Music, commonly known as “EDM,” is rapidly revolutionizing music, reviving rave culture from the 1990s, but at the same time, is further complicating the world of music sampling in copyright law.[1]  As a result of its popularity in dance clubs, the infatuation with EDM has naturally fostered the idea that anyone can become a disc jockey (“DJ”) and that one’s reliance on others’ copyright-protected works to create new music is excusable.[2]  However, EDM is a unique genre of music in which its DJs thrive off digital technology to create masterpiece music, in part by sampling portions of protected music. [3] While some DJs work with vocalist, independent of any pre-existing work, many rely on the ability to remix existing music in creating their music; therefore, today’s DJ faces a moral and ethical challenge when deciding how and when copyrighted protected music samples will be used and whether to attempt to get a license to use these samples.[4]

This article advocates, in accordance with the position taken by many DJs,that their actions are permitted under the Copyright Act’s “fair use” exception because their extensive digital manipulation and looping of a small portion of a music sample, which is further infused with creative beats, ultimately transforms the original into a new style of music.[5]  For instance, popular electronic DJs such as Avicii, Deadmau5, Tiesto, and Skrillix, sample famous pop songs while blending hard beats and bass to create their world-famous music.[6]  Their reliance on varying amounts of copyrighted works as a starting point for creating new music also applies in the context of younger DJs when learning the techniques to create new music, which apart from any independently created sounds, their work is arguably infringing on the sampled music’s copyright.  In the words of University of Minnesota junior Ben Jorgenson, or DJ “6-Shooter,” “[s]ampling has created a gap in the music industry. There are a lot of people who oppose it because of copyright infringement, but many small time DJ’s like to use it to get their names known.”[7]  So, whether the discussion of copyright infringement turns on either a world-famous DJ or an emerging DJ, the music genre as a whole has ignited substantial discussion as to its legality on the grounds that the current state of copyright law seems ill suited for the EDM age.[8]

Since music sampling became prominent, the federal courts have left the music industry in a great deal of confusion as to what constitutes, if any, “fair use sampling” practices.[9]  Generally, Title 17 of the United States Code (the “Copyright Act”) requires that DJs obtain permission from the copyright owner prior to using music as a sample.[10]  However, the federal courts rulings in the 1990s and 2000s on what infringes copyright when sampling various portions of music has yielded strict yet conflicting outcomes.[11]  Thus, it is because of their inconsistent and rather hazy guidance that calls for a need to amend the copyright law to address this issue with respect for EDM.

This article begins by briefly explaining the background of music sampling and its origins.  Section III explains the copyrights in music by first exploring the general overview of copyright law then narrowing its application to music and the leading sampling case law that have resulted in the conflicting state of law.  This section briefly discusses how the current music-licensing scheme for samples conflicts with the type of music these DJs create and the financial impracticalities a young DJ may face when attempting to obtain the requisite licensing.  In a hypothetical scenario, Section IV argues why EDM is fair use by stepping through the four factors courts consider when applying the fair use exception under the Copyright Act.  Specifically, Section IV hypothetically explains why DJ Girl Talk, a well-recognized music sampler, and DJ Crespo, a younger but emerging DJ from Florida State University, create music that, although may be infringing, is a fair use under the Copyright Act.  Lastly, Section V concludes by proposing a statutorily created royalty fee, which balances the interests of copyright owners, the purpose of the copyright laws, and the DJs that create EDM.

Section II:  The Origins of Music Sampling

The music industry and the courts define music sampling as “the incorporation of short segments of prior sound recordings into new recordings.”[12]  Music sampling originated in Jamaica in the 1960s, where DJs used portable sound systems to mix portions of prior recordings into new mixes, which they would overlay with chanted or “scatted” vocals.[13]  In the 1980s, the United States further minted digital sampling of sound recordings with digital synthesizers having Musical Instrument Digital Interface (“MIDI”) keyboard controls.[14]  The controls in these MIDI keyboards permitted music artists to digitally manipulate and combine “sampled sounds,” thus, expanding the range of possibilities for the use of pre-recorded music.[15]  Unlike the analog devices used in Jamaica, for instance, which limit artists to “scratching” vinyl records and “cutting” back and forth between different sound recordings, digital technology enhances music artists’ creativity by slowing down, speeding up, combining, and otherwise altering the music samples.[16]  Artists can also use a “sampler” to record their own sounds, which allows them to add them in a variety of ways to the original sampled sounds.[17]  Moreover, once the artist digitally captures the sample, the artist can manipulate and edit it in a limitless number of ways such as adjusting the pitch and echo, repeating the sample in a particular rhythm, and further combining the sample with new electronic sounds; the end product is the DJs music “set” or “track” produced and performed largely for a dancing audience.[18]

Section III:  The Copyright Act and Music Sampling Case Law

As previously noted, Congress and the federal courts have not uniformly addressed the issue of sampling sound recordings due mainly because there is no “Rosetta stone” for analyzing the copyright statute.[19]  Likewise, the legislation’s history provides little guidance for the courts since the music industry in the 1970s, unlike today, did not heavily engage in sampling when Congress began undergoing the Act’s latest substantial reform.[20]

  1. United States Copyright Law

The United States Constitution grants copyright protection.[21]  Its purpose is to “promote the progress of science and useful arts, by securing for [a] limited time to authors and inventors the exclusive right to their respective writings and discoveries.”[22]  While a goal is to protect authors and their works, the United States Supreme Court has articulated its primary goal is not to reward the author, but is rather to secure “the general benefits derived by the public from the labors of authors” while motivating them by reward.[23]  Although revisions have since occurred, 1976 marks the last major revision by Congress to the Copyright Act.  Congress explained technology in the motion picture and sound recording industries necessitated revision because those advancements impeded the operations of existing copyright law.[24]  Thus, under the Copyright Act, and while many works fail to meet the necessary elements, the Act generally provides legal protection for “original works of authorship fixed in any tangible medium of expression . . . .”[25]

  1. Copyright in Music

Section 102 of the Copyright Act recognizes two separate and distinct types of music copyrights: (1) “musical works, including any accompanying words,” and (2) “sound recordings.”[26]  First, the musical works copyright protects the musical composition itself; that is, it includes the lyrics and its written music.[27]  Musical works enjoys a broader scope of legal protection than sound recording copyrights.[28]  Accordingly, the Act provides musical works copyright owners with five exclusive rights: (1) the right to reproduce the work, (2) the right to prepare a derivative work, (3) the right to distribute the work, (4) the right to perform the work publicly, and (5) the right to display the work publicly.[29]

Alternatively, the sound recording copyright protects the precise fixation of a series of musical, spoken, or other sounds in the recording of a musical work.[30]  Sound recordings extend only to the master recording of the original work and not to separate recordings.[31] This copyright owner is limited to the rights: (1) to “duplicate the sound recording in the form of phonorecords or copies that directly or indirectly recapture the actual sounds fixed in the recording,”[32] (2) “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,”[33] and (3) to distribute copies of the sound recording.[34]  However, unlike musical works, only sound recordings fixed on or after February 15, 1972 enjoy protection.[35]

Although a music artist may have performed, i.e. “authored” the song into its sound recording, the songwriter or publishing company generally owns the copyright in musical compositions;[36] likewise, the record label generally owns the sound recording copyright.[37]  This is typically a result of the disparity in bargaining power between the major companies and emerging artists seeking to enter the music industry; artists often assign their rights to the record label by way of contracts.[38]

An unauthorized use of a sound recording may lead to infringement of both copyrights.[39]  This is because under the Copyright Act’s definition, a sound recording is a “derivative work” of the musical score; that is, “a work based upon one or more preexisting works, such as a . . . musical arrangement.”[40]  Thus, unauthorized sampling clashes with the musical works copyright holders’ exclusive rights to reproduction and distribution under 17 U.S.C. § 106 (1) and 106 (3), respectively.[41]  Moreover, unauthorized sampling may infringe the exclusive right to control derivative works of the sound recording copyright since it adapts parts of the original song, which again falls neatly into the definition of a “derivative work;” that is, “any other form in which a work may be recast, transformed, or adapted.”[42]  Although discussed in greater detail below, the reader should note from the onset that courts have found a work is not merely derivative by simply borrowing from preexisting works when the “secondary work transforms the expression of the original work such that the two works cease to be substantially similar.”[43]

  1. The Scheme for Music Licensing

The current licensing scheme is not economically feasible for a DJ that creates EDM; this is especially true for every non-famous DJ, such as DJ Crespo.[44]  To sample a sound recording lawfully, the DJ seeking to use a sample must obtain: (1) a “mechanical” or “compulsory” license for the musical composition, and (2) a “master use” license for the sound recording; each license is obtained from the respective parties that own the copyrights to each, and both licenses are needed each time a DJ wishes to sample a portion of a copyright protected work.[45]  Upon obtaining both licenses, the set or track is deemed “cleared,” and the DJ or a record label can copy, distribute, or display it without violating the rights of the individuals or entities that own the copyrights to the sampled works.[46]

First, a mechanical license is a term of art within the music industry, which permits anyone to reproduce a musical composition in any form that transmits audio-only information.[47]  While a “mechanical” and “compulsory” license grant the same permission, their paramount distinction lies in 17 U.S.C. § 115, which governs only compulsory licenses.[48]  Moreover, § 115 requires the person seeking the license to serve prior notice on the copyright owner of their intentions to make and distribute a pre-existing musical work, to pay the statutorily stipulated fee with monthly accounting and payment before the twentieth day of every month,[49] and the person cannot change the work’s basic melody or character.[50]  Because of these requirements, artists will instead try to negotiate a “mechanical” license at an amount lesser than the statutory fee mandated for a compulsory license.[51]  However, if the copyright proprietor refuses to grant a mechanical license, the DJ may nevertheless obtain a license by way of § 115.[52]

Second, a “master use” license permits the DJ to use a pre-existing sound recording.[53]  However, unlike the compulsory license of § 115, the Copyright Act does not provide for a compulsory master use license; as a result, bargaining for a master use license is done on a sample-by-sample basis and most often at an unrealistic cost.[54]  Thus, the reader should recall this critical distinction when reading Section V’s proposed legislation, which addresses and remedies this issue.[55]

Further, the current and necessary “clearance process” to acquire these licenses is incredibly complex with conflicting financial and business interests between the DJ and the music label or publishing company.[56]  As with any music artist, when either a record label, for a master use, or a publishing company, for a mechanical, are negotiating license fees with a DJ, these companies factor, among other things, the DJs’ fame, the use and duration of the sample, the number of times the sample is used, and whether the sample will revive any prior work; costs for a single sample may range from $5,000 to $50,000.[57]  Alternatively, the copyright holders may request rolling payments by way of a percentage of royalties or a flat fee amount based on sales, such as $10,000.00 for every 100,000 units sold.[58]  Lastly, nothing prevents the copyright holders from imposing limitations on a DJs usage of the music sample, which may entirely defeat its purpose or substantially hinder a DJs’ ability to create new music with such restrictions.[59]

  1. Copyright Infringement

To bring a claim for copyright infringement, the copyright proprietor must establish that the defendant exercised one or more of his or her exclusive rights without authorization by the copyright owner.[60]  A successful claim of copyright infringement requires that the plaintiff prove: (1) valid ownership in copyright, i.e., that the plaintiff owns the copyright of the contested work, and (2) copying of constituent elements of the work that are original.[61]

With regard to the first prong, the plaintiff may make a prima face case of ownership by relying on its copyright registration, shifting the burden to the defendant to show invalidity.[62]  If, however, the certificate of registration is not made either before publication or within five years thereafter, the plaintiff is not afforded the presumption, and the court retains the discretion as to the amount of evidentiary weight given to the certificate of registration.[63]

As to the second prong, proving “copying of constituent elements of the work that are original” involves two steps: “the plaintiff must show (a) that the defendant actually copied the work as a factual matter, either through direct evidence or through indirect means,[64] and (b) that the defendant’s ‘copying of the copyrighted elements was so extensive that it rendered the infringing and copyrighted works ‘substantially similar.’”[65]

For purposes of music sampling copyright, intent to copy is not a prerequisite for copyright infringement.[66]  To illustrate, in Bright Tunes Music v. Harrisongs Music, plaintiff, Bright Tunes Music Corp., owned the copyright “He’s So Fine” composed by Ronald Mack.[67]  Bright Tunes Music Corp. argued “My Sweet Lord” composed by former Beatles member, George Harrison, infringed the 2plaintiff’s copyright inasmuch as “My Sweet Lord” is the same song as “He’s So Fine” but with different words.[68]  Although Harrison argued in rebuttal that he made no conscious intent to copy plaintiff’s work, and to which the court agreed, the court nevertheless held Harrison infringed the plaintiff’s song.[69]  Through the plaintiff’s proof of access and the substantial similarities of the songs,[70] the court found Harrison liable “because his subconscious knew [the short musical phrase] already had worked in a song his conscious mind did not remember.”[71]

Once actual copying is proven, a plaintiff must also show that substantial similarity to the protected material exists between the two works, amounting to an unlawful appropriation.[72]  For instance, in a leading sampling case, Tuff ‘N’ Rumble Management, Inc. v. Profile Records, Inc., the record label, Tuff ‘N’ Rumble Management, Inc., alleged the hip-hop group Run DMC infringed its musical composition and sound recording copyrights by copying portions directly from a recording of the drum track for the song “Impeach the President.”[73]  In finding for the defendant, the court explained the necessity of conducting a substantial similarity analysis once copying is found.[74]  Rather than dissecting the song into its elements, the court stated the proper test to conduct a substantial similarity analysis was to look at the work as a whole and to determine “whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.”[75]  Nevertheless, courts substantially vary the “substantial similarity” analysis when analyzing music sampling.[76]

  1. Conflicting Music Sampling Case Law

One of the first leading sampling cases, Grand Upright Music Ltd. v. Warner Bros. Records, created a bright-line rule against sampling without providing guidance to ascertain the threshold level for what constitutes substantial similarity.[77] There, the defendant, Biz Markie, admitted to sampling from “Alone Again (Naturally)” by Raymond “Gilbert” O’Sullivan; however, Biz Markie claimed sampling was widespread in the music industry, and therefore, the court should excuse his conduct.[78]  Although the defendant’s album used only three words from “Alone Again (Naturally)” with a portion of the recorded music, the court firmly held that the defendant’s admission to copying the plaintiff’s original work established copyright infringement.[79]  Foreshadowed by the first sentence of the court’s opinion, “thou shall not steal,”[80] the court’s strict holding without any regard to a substantial similarity or fair use analysis sent a clear message to the music industry that sampling without first obtaining a clearance or permission is illegal.[81]

However, the decision by the Ninth Circuit in Newton v. Diamond part ways from Grand Upright and is a foundational case in paving the way in favor of music sampling and fair use.[82]  In Newton, a hip-hop group, the Beastie Boys, obtained a license to use the sound recording to “Choir” by James Newton; however, the Beastie Boys failed to obtain a license to sample the musical composition.[83]  Pursuant to their license, the Beastie Boys digitally sampled the opening six seconds of “Choir” but “looped” that sample in the background of their song, “Pass the Mic,” so that the six-second sample appeared over forty times in various renditions of the song.[84]   Although there was no license for the musical compositions, the issue raised before the Ninth Circuit was “whether the incorporation of a short segment of a musical recording into a new musical recording, i.e. the practice of ‘sampling,’ requires a license to use both the performance and the composition of the original work.”[85]

In affirming the lower court’s decision in favor of the Beastie Boys, the Ninth Circuit held the Beastie Boys’ use of the musical score constituted a de minimus use and therefore not actionable for copyright infringement.[86]  In its reasoning, the court applied the “fragmented literal similarity”[87] test and concluded the sampled portion of the composition was neither qualitatively nor quantitatively significant in relation to the composition as a whole.[88]  So, despite the high degree of similarity from the actual use of the recorded composition, the scope of the similarity was not sufficiently substantial to support the composer’s infringement claim.[89]

While Newton‘s recognition of de minimus sampling in the context of musical compositions left uncertain the amount permitted, if any, to sample sound recordings, the court in Williams v. Broadus stepped through a similar analysis as Newton when it found unlawful appropriation is established “by showing that the second work bears substantial similarity to protected expression in the earlier work.”[90]  In Broadus, defendant Calvin Broadus sampled plaintiff’s song “The Symphony,” in Broadus’ song “Ghetto Symphony.”[91]  However, Broadus moved for partial summary judgment on the grounds that plaintiff’s song did not have a valid copyright since the plaintiff previously incorporated unauthorized samples from a third party’s song, “Hard to Handle,” in plaintiff’s song.[92]

The court found that even though the plaintiff’s copied from “Hard to Handle,” a genuine issue existed as to whether plaintiff’s work was substantially similar to “Hard to Handle” and therefore denied Broadus’ motion.[93]  According to the court, a fact finder needed to first determine whether substantial similarity existed between those two works before it needed to decide valid copyright ownership as a matter of law.[94]  Nevertheless, rather than applying a per se infringement rule, the court determined the proper analysis to find “substantial similarity” required the application of the fragmented literal similarity approach: “[t]he importance of the copied material to the pre-existing work determines whether there has been an ‘unlawful appropriation’ that the substantial similarity analysis was intended to identify” because “repeated use of an insignificant portion of the pre-existing work does not diminish the public demand for the pre-existing work.”[95]

Conversely, in 2006, the Sixth Circuit in Bridgeport Music, Inc. v. Dimension Films, rejected the “substantial similarity” test in favor of a bright-line rule of automatic infringement where an artist should either “[g]et a license or . . . not sample at all.”[96]  The defendants in that case used “100 Miles and Runnin” for the sound track of the movie I Got the Hook UP.[97]  However, “100 Miles and Runnin” contained a two-second guitar solo sample from the sound recording “Get Off Your Ass and Jam” by George Clinton, Jr. and the Funkadelics.[98]   The defendants lowered its pitch and “looped” the guitar solo sample in five places each lasting approximately seven seconds.[99]

The Six Circuit held the defendant’s work infringed because a close reading of § 114(b) of the Copyright Act reveals that the sound recording copyright owner maintains the exclusive right to “sample” his own recordings only.[100]  By first posing the question, “if you cannot pirate the whole sound recording, can you ‘lift’ or ‘sample’ something less than the whole,”[101] the court answered in the negative because “even when a small part of a sound recording is sampled, the part taken is something of value.”[102]  As a result, the court refused to entertain a de minimus analysis because it felt the music industry is best served with a bright-line rule rather than battling “mental, musicological, and technological gymnastics” necessary under a de minimus ruling.[103]

Section IV:  The Fair Use Exception

This section will analyze hypothetical defenses to copyright infringement on behalf of both D.J. Girl Talk and D.J. Crespo to explain the fair use exception of the Copyright Act and to further illustrate why EDM created by DJs is a fair use of music sampling.  17 U.S.C. § 107 permits the use of copyrighted works in limited situations considered as “fair use” notwithstanding copyright infringement.[104]  By way of exception, works not specifically enumerated under § 107 may still constitute fair use upon a court weighing the following four factors:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.[105]

However, because of the inconsistent music-sampling jurisprudence and not in the context of EDM, for a DJ to lawfully sample without a license, application of the four factors is paramount. Lastly, no bright-line rule exits, and each fair use analysis necessitates its application and balancing on a case-by-case basis.[106]

  1. Factor 1:  The Purpose and Character of the Use

A central purpose of this factor is to determine whether: (1) the new work simply supersedes the objects of the original work,[107] which supports non-fair use, or (2) the new work “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”[108]  Neither of these two issues are outcome determinative, but a finding of one way may tend to weigh in favor of fair use and vice-versa.[109]  Thus, the greater the DJs’ works adds new expression or meaning to the sampled work, the more likely that their music will be deemed “transformative,”[110] and therefore, favoring the first factor in their favor.

Transformative use was first recognized in Campbell v. Acuff-Rose Music, Inc., which found that 2 Live Crew’s parody of Roy Orbison’s “Pretty Woman” created new expression to justify a finding of fair use.[111]  There the United States Supreme Court found 2 Live Crew’s copying of the love song was transformative when they created a rap song about sexual conquest because it altered the first work with a “new expression, meaning or message.”[112]

This factor also considers the commercial nature of the use to determine if its use is for profit,[113] which requires courts to conduct a “sensitive balancing of interests.”[114]  While the analysis generally begins with “every commercial use of copyrighted materials is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright,” the Court clarified in Campbell that commercial use is not a bright-line rule against fair use but merely a factor that weighs against its finding.[115]  To illustrate, Campbell noted, “the mere fact that a use is educational and not for profit does not insulate it from a finding of infringement, any more than the commercial character of a use bars a finding of fairness.”[116]

Nevertheless, courts find highly transformative use of copyrighted elements may strongly outweigh the new work’s for-profit status because “[t]he more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.”[117]  This is especially true when recalling the underlying purpose of copyright, “to promote science and the arts, [which] is generally furthered by the creation of transformative works.”[118]

  1. First Factor:  DJs Girl Talk and Crespo

When applying the first factor, a court may find at the onset that this factor weighs against both DJs because the purpose of their music is the same as the works copied: to provide entertainment.  However, it is because the music of both DJs do not replace the original work but rather add new meaning by way of incorporating unexpected elements that a court will likely find their music is transformative; thus, favoring a finding of fair use.  A telling example occurred when DJ Crespo sampled approximately fifteen seconds of Lebo M.’s African chant in “The Circle of Life”[119] from the soundtrack of The Lion King in Crespo’s fifty-minute dance club remix, Good Vibrations 11: Official Guide To Spring Weekend 2014, but with the distinctive purpose of triggering “childhood memories” in the listener’s mind.[120]  Similarly, DJ Girl Talk’s mash-ups do not merely “cut and paste” pre-existing works; rather, like quoting, Girl Talk’s second-long excerpts of over 300 samples dispersed throughout his numerous soundtracks demonstrate a clear purpose of meticulously selecting sounds to re-contextualize them in an aesthetic and artistic collage of musical pieces.[121]

As noted by the Supreme Court, “transformative use is not absolutely necessary for a finding a fair use” but the greater the transformation the less the work is considered a derivative work and the more the work is considered fair.[122]  Accordingly, most, if not all, of the two DJs works transform the sound recordings used, which mix diverse genres of music while infusing them with novel electronic beats and unique synthesized loops, and therefore, their works do not replace the original works.[123]

While the Campbell Court suggests music sampling for a commercial purpose weighs in favor of copyright proprietors,[124] many DJs engage in sampling merely as their enjoyable hobby of creating music.[125]  Moreover, they use online audio distribution platforms, such as SoundCloud, to upload their recorded music to a common space where artists can collect and share their works to interested listeners.[126]  However, unlike Crespo and a majority of young DJs, Girl Talk produces and sells his soundtracks.[127]  Yet a finding commercial use should not bear as much weight with the court because most works created are for monetary gain, whether directly or indirectly.[128]  In sum, although the consideration of commercial use is factored, by determining that Crespo’s and Girl Talk’s sound recordings are highly transformative, a court will strongly favor a finding of fair use under factor one.

  1. Second Factor:  Nature of Copyrighted Work

The focus of this factor is an examination on whether the new work that invokes fair use copies factual or informational copyrighted works rather than creative copyrighted works.[129] While courts generally provide more lenient rulings in favor of fair use when works copy factual rather than creative copyright-protected material, the federal courts consider this factor as the least influential in the overall analysis partly because of the little attention it receives;[130] that is, creative works inevitably rely on other creative works.[131]  Nevertheless, Campbell supports, albeit a parody case, that a creative work infringed does not necessarily weigh against fair use, and this rationale should extend to cases of music sampling because music, like parodies, generally copy publicly known, expressive works.[132]

  1. Second Factor:  DJs Girl Talk and Crespo

Since Girl Talk and Crespo make creative works, which align with the essence of copyright law protection, a court may find this factor favorable for the music studios and publishing houses.[133]  However, a court may likely find this factor least indicative of non-fair use on the grounds that more weight and scrutiny is generally applied to the other three factors than this one.[134]  In a close balance favoring the copyright holder, because both DJs’ works are creative, a finding of fair use will hang on the application of the other fair use factors.

  1. Third Factor:  The Amount and Substantiality of the Portion Used

This factor considers whether the portion taken in relation to the copyrighted work as a whole is reasonable in light of the purpose of copying.[135]  The success of a sampling artist under this factor typically depends upon the quantitative and the qualitative amounts copied.[136]  As with the other factors, there is no precise test to determine the threshold at which a substantial portion is taken, and therefore, it requires a case-by-case analysis.[137]  Moreover, courts weigh the qualitative amount copied more heavily than the quantity copied because an insubstantial quantitative amount copied may fall below the required threshold for actionable copyright infringement thus precluding a fair use analysis entirely.[138]  If, however, a substantial quantity of the “heart of a work” is copied, Campbell states that such copying may lead the third factor to weigh against a finding of fair use because LOOK UP CAMPBELL!!!.[139]

It is important to note this factor also heavily interacts with the other factors, as substantial similarities are indicative of a lack of transformative use under the first factor, suggesting the new work is merely duplicative.[140]  Similarly, a lack of transformative use may further correlate with a greater likelihood of market harm under the fourth factor.[141]  With these points in mind, the third factor favors artist that sample quantitatively, when the amount taken “in relation to the copyrighted work as a whole” is small, and qualitatively, when the portion does not go to the “heart of the original work.”[142]

  1. Third Factor:  DJs Girl Talk and Crespo

As considered by Campbell, here, the amount of transformation done by Girl Talk and Crespo is critical for this factor because if a work is transformative in character or purpose, then it may not go to the heart of the work.[143]  While overlapping with the “heart of the original” may occur, both DJs transform the original and take no more than needed to “conjure up” in the listener’s mind recognizable samples, which inherently act as starting points for producing their creative sets.

Further, for the EDM genre to create enjoyable music, the “conjuring up” of recognizable portions in their creation of tracks is often a prerequisite because if unknown or indistinct samples were used instead, the value of DJs’ music would unequivocally lose merit from the perspective of the listener.  As in Campbell, here and given the amounts Girl Talk and Crespo sample, it would be a stretch to conclude such a minimal taking also constituted the “heart of the original work.”[144]  Analogous to Campbell‘s parody, Girl Talk and Crespo do not take substantial portions but “conjure up” only the amount needed to be effective and therefore should enjoy the same leniency as the parody genre.[145]  In sum, a court should likely find this factor favors a finding of fair use because the amounts taken and transformed by these DJs are limited to the amount needed.[146]

  1. Fourth Factor:  The New Work’s Effect on the Potential Market

The final factor requires courts to assess the market harm caused by the particular actions of the alleged infringer, and “whether unrestricted and widespread conduct of the sort engaged in by the defendant would result in a substantially adverse impact on the potential market for the original.”[147]  Courts find this factor as the most important in a fair use analysis.[148]  As found in Campbell, with regard to the relation to purpose and character, the more transformative a new work is found to be, the less likely that work will become a market substitute of the original;[149] rather, the new work will serve a “different market function.”[150]  Again, it is important to note Campbell‘s clarification that no bright-line rule exists to determine whether a work is a fair use based upon whether the work is commercial or non-commercial.[151]  Albeit by showing evidence that the sampled work in EDM replaces part of the original work’s market, copyright owners may rebut a fair use defense because the new work harms the potential mark of the copyrighted work or its derivative work.[152]

  1. Fourth Factor:  DJs Girl Talk and Crespo

EDM is a unique genre of music and its audience is generally dance crowds in club settings, which poses little market threat to the variety of genres used as samples.[153]  This is true for Girl Talk’s and Crespo’s transformative tracks given their music uses small portions, which rarely substitutes the demand of the original work.  Further, unlike the music sampled, Girl Talk and Crespo serve “a different market function” as they provide music for an audience seeking dance music.  Their music also serves as a promotional and revival method for the music sampled, and a court should recognize that this increases the demand for the original and not detrimentally affects their markets.

With respect to the potential harm in derivative markets, a court may find this in favor of the copyright owners because it undercuts the licensing scheme market.  Since the copyright owners for the music sampled could theoretically gain profit off of Girl Talk or Crespo, or since they could have licensed the samples to other paying DJs, harm to the derivate market is likely.  While this may be true, however, the potential harm is arguable given (1) Girl Talk’s over 300 samples have rarely been licensed, and (2) often times record labels outright refuse to license a work;[154] thus, suggesting no real monetary harm otherwise these DJs would have already obtained the necessary licenses.  Moreover, DJs such as Crespo often post their sets to SoundCloud to gain exposure with little intent to directly or indirectly generate revenue off music when not performing live.  Thus, while the derivative market may slightly suffer by Girl Talk and Crespo not licensing samples, in total, this factor should not strongly weigh against both DJs since their music does not substitute the demand for the original market.

In sum, the first factor is likely in favor of the DJs because of the highly transformative nature of their sets in relation to the original, which carries more substance than the commercial nature of their music.  The second factor, although in favor of the copyright holders because music is creative, carries little overall weight in relation to the other factors and should not bar finding fair use for Girl Talk and Crespo.  However, the third factor likely favors DJs as their sets are substantially transformative, and they only take an amount needed to make their music recognizable.  Lastly, although a close decision, the fourth factor heavily turns on factual market evidence, which will likely fall in favor of the copyright holders because of the potential harm to the derivative market.  In sum, two factors weigh in favor of Girl Talk and Crespo while one factor may weigh heavier against them than factor two; thus, a court balancing the factors to this hypothetical should find that Girl Talk’s and Crespo’s works are fair use.

Section V:  Conclusion

As noted in the introduction and demonstrated in the fair use section, EDM created by DJs should be deemed a fair use because of the highly transformative nature of their work.  However, to assure that EDM continues to thrive and emerging DJs need not fear of potential federal litigation, this article concludes by proposing that the following statutory language be adopted by the Copyright Act to specifically address music sampling:

(A) Definition. A “music sampler” is defined as any person or entity that incorporates any segment of prior sound recordings into new recordings.  For purposes of this section, any other person or entity under a signed written agreement executed with a person or entity that incorporated any segment of a prior sound recording is also considered a “music sampler.”[155]  A “new work” is any sound recording that copies music, digitally samples, or otherwise uses pre-existing copyrighted sound recordings.

(B) Compulsory Sample License.  In the case of copying sound recordings or digital sampling, the exclusive rights provided by clauses (1), (2), (3), and (6) of section 106, are subject to compulsory sample licensing under paragraph (c). Section 107 may not be applied to copying sound recordings or digital sampling by a music sampler.

(1) To the extent any person or entity reproduces, distributes, performs, or prepares derivative works other than the music sampler and not under the authorization of the copyright owner of the original work, that person or entity may comply with paragraph (b); non-compliance may subject that person to any action against or any defense, including section 107, permitted under the Copyright Act.[156]

(2) Compliance with paragraph (b) exempts that person or entity from liability to the extent permitted under this section.

(C) Royalty Formula.  When a new work is distributed to the public in the United States by a music sampler not under the authority of the copyright owner of the original work, the music sampler shall comply with the royalty formula as defined below in clause (1) for each time the new work is distributed.  This section does not limit, supersede, or otherwise interfere with the rights, privileges, and duties required by a music sampler under section 115 unless no revenue results in connection with the music sampler.

(1) The royalty fee shall be collected and individually paid to every copyright owner for the use of his or her original work by the music sampler for the entire duration of its use in the new work.  Upon receipt of any revenue attributed to the music sampler, the copyright owner is entitled to royalties computed at the rate set forth in sub-clause (a).

(a) The royalty fee payable shall be calculated based on the percentage of the original work used in the new work multiplied by one-quarter of the revenue received from the new work.  The music sampler must provide monthly accounting to the copyright owner regarding the precise length of time of music sampled from the original work and accounting regarding all revenue derived in connection with the music sampler and the new work. To the extent the new work does not, create, generate, or otherwise create any revenue, either directly or indirectly, the music sampler is exempt from the payment of royalties as prescribed in this section.[157]

(b) Notwithstanding clause (1), any copyright owner of a sound recording and music sampler may negotiate and agree upon the terms and rates of royalty payments due to the copyright owner.

(c) Failure to comply with sub-clause (a) may permit the copyright holder to discourage the profits derived to the music sampler. [158]

Notes:  It is the intent of Congress that the decisions of Newton v. Diamond, 388 F.3d 1189 (9th Cir. 2004), and Bridgeport Music, Inc. v. Dimension Films, 383 F.3d 390 (6th Cir. 2004) be limited by the changes made to law by this section.[159]

In sum, while this proposed legislation limits the exclusive rights of the original copyright owner, this provision equally eliminates the fair use defense for music sampling; ultimately, this legislation provides clear guidance for the music industry and uniformity of music copyright law as to permitted situations of music sampling.  Moreover, aside from the financial interests, which is the engine for why record labels or publishing houses would rather maintain the current license scheme, this proposal protects emerging DJs similar to Crespo as it adheres to the purpose of the copyright law: promoting the creation of new works for the benefit of the public.  Likewise, this legislation strikes a balance in the opposite extreme of sampling, like DJ Girl Talk, since the substantial percentages of payments to all copyright owners will disincentive the use of substantial music samples; alternatively, it may drive the music sampler out of the music industry.  Thus, while the application of fair use by DJs in EDM may be justified, the proposed provision, in an interest for justice, better equalizes the bargaining power when other music artists negotiate for master use licensing to use samples in their music as well.

Justin Maya, J.D.
Santucci Priore, P.L.
Intern


[1] See Sarah Crawford, Copyright In Electronic Dance Music, Digital America (Mar. 9, 2014), http://tocqueville.richmond.edu/digitalamerica/?p=2934.

[2] See id.

[3] See, e.g., Robert Levine, Steal this Hook? D.J. Skirts Copyright Law, N.Y. Times (Aug. 7, 2008), http://www.nytimes.com/2008/08/07/arts/music/07girl.html [hereinafter Levine].

[4] Ben Torgerson, Duluth DJs risk breaking laws to “sample” new tunes, Lake Voice News (Feb. 18, 2010), http://www.lakevoicenews.org/local-djs-risk-breaking-laws-to-sample-new-tunes/ [hereinafter Torgerson].

[5] Levine, supra note 3 (emphasis added).  Gregg Gillis, DJ Girl Talk, states his samples fall under fair use because his samples are short, and his music sounds so little like the songs he takes from that it is unlikely to affect the original’s sales.  Id.

[6] Id.

[7] See Torgerson, supra note 4.

[8] See Brittany Elias, Expecting A DJ To Remix Your Tunes?  How Evoloving EDM Culture Complicates DSJS’ Rights to Remix Music, The Dotted Line Reporter (Feb. 12, 2013), http://dlreporter.com/2014/02/12/expecting-a-dj-to-remix-your-tune-how-evolving-edm-culture-complicates-djs-rights-to-remix-music/; Alex Mayyasi, The Economics of Girl Talk, Priceonomics (Apr. 11, 2013), http://blog.priceonomics.com/post/47719281228/the-economics-of-girl-talk [hereinafter Mayyasi] (“The current legal system around sampling is outdated and broken. It was created in 1991 by a judge throwing Bible quotes around who, more importantly, failed to consider the doctrine of fair use.”).

[9] See Lucille M. Ponte, The Emperor has No Clothes: How Digital Sampling Infringement Cases are Exposing Weaknesses in Traditional Copyright Law and the Need for Statutory Reform, 43 AM. BUS. L.J. 515, 518-19 (2006) [hereinafter Ponte] (examining the lack in statutory guidance in the realm of music sampling has led to many sampling cases being settled, and those litigated, have resulted in inconsistent opinions that apply varying legal standards such as per se infringement, an exception of de minimus use under the “substantial similarity” test, and an exception of fair use under 17 U.S.C. § 107 of the Copyright Act); Mayyasi, supra note 8 (“The result is a broken system that impairs the ability of young producers to make music without taking huge legal risks. The task of obtaining permission to use a sample . . . is so difficult and expensive that only big players in the music industry have the resources to pull it off.”).

[10] 17 U.S.C. § 114 (2010) (stating the statutory scope of exclusive rights in sound recordings).

[11] See infra Section III.D.

[12] See, e.g., Newton v. Diamond, 388 F.3d 1189, 1192 (9th Cir. 2004).

[13] See Robert M. Szymanski, Audio Pasitiche: Digital Sampling, Intermediate Copying, Fair Use, 3 UCLA Ent. L. Rev. 271, 277 (1996).

[14] Id.

[15] Id.

[16] Id.

[17] See Molly McGraw, Sound Sampling Protection and Infringement in Today’s Music Industry, 4 High Tech. L.J. 147, 150 (1989) (discussing the science of music sampling and describing specific music samplers).

[18] Id.

[19]Bridgeport Music, Inc. v. Dimension Films, 383 F.3d 390, 401 (6th Cir. 2004).

[20] See id.

[21] U.S. Const. art. I, § 8, cl. 8.

[22] Id.

[23] New York Times Co., Inc. v. Tasini, 533 U.S. 483, 519 (2001).

[24] H.R. Rep. No. 94-1476, at 47 (1976).

[25] 17 U.S.C. § 102(a) (1976).

[26] Id.; see John Schietinger, Note and Comment, Bridgeport Music, Inc. v. Dimension Films: How the Sixth Circuit Missed a Beat on Digital Music Sampling, 55 DePaul L. Rev. 209, 216 (2005) (discussing the distinctions and the exclusive rights granted to musical compositions and sound recordings).

[27] See Christopher D. Abramson, Note, Digital Sampling and the Recording Musician: A Proposal for Legislative Protection, 74 N.Y.U. L. Rev. 1660, 1669 (1999) (emphasis added).

[28] 17 U.S.C. § 106 (1976); see Ponte, supra note 9, at 523-24.

[29] 17 U.S.C. § 106 (1976).

[30] See id. (emphases added).

[31] Ponte, supra note 9, at 525.

[32] 17 U.S.C. § 114(b) (1976).

[33] Id.

[34] 17 U.S.C. § 114(a) (1976).

[35] Schietinger, supra note 26, at 216.

[36] Id.

[37] Id. at 1669-70.

[38] Casey Rae, Girl Talk & the Sample License Clearance Process, Remixing The Future of Music (Dec. 16, 2013), https://blogs.commons.georgetown.edu/cctp-636-spring2012/ [hereinafter Rae] (discussing the challenges artist face in obtaining licenses to sample because, among the other exclusive rights, the exclusive right to derivative works is often held by the record labels not wishing to grant permission).

[39] 17 U.S.C. § 101 (2014).

[40] Id.;Newton v. Diamond, 349 F.3d 591, 592-93 (9th Cir. 2003).

[41] 17 U.S.C. § 106 (1), (3) (2012).

[42] 17 U.S.C. §§ 101, 106 (2) (2012).

[43] Williams v. Broadus, No. 99 CIV. 10957 MBM, 2001 WL 984714, at *1, *3 (S.D.N.Y. Aug. 27, 2001) (emphasis added).

[44] While the focus of this article is on sampling with regard to creating EDM, performing rights societies such as ASCAP, BMI, or SESAC, provide various licenses necessary for venues that publically perform music (i.e. a nightclubs, concerts, conventions, music festivals), and therefore, performances by DJs while at such venues are generally not at issue for infringement. Steve Gordon, Clearing Music Recordings and Compositions for Use in Digital Music Services, Entertainment Law & Finance Part II, (Mar. 2002) available at http://www.stevegordonlaw.com/article_elf_clearingpt2.htm. However, if the performance is recorded, i.e. fixed, notwithstanding this Section’s discussion on licenses, that work is not protected by the venue’s performance license and may subject the DJ, producer, or any distributor to liability for copyright infringement to both the musical composition and sound recording.  Id.

[45] See Reuven Ashtar, Theft, Transformation, and the Need of the Immaterial: A Proposal for A Fair Use Digital Sampling Regime, 19 Alb. L.J. Sci. & Tech. 261, 269 (2009) (emphases added). For a discussion on “synchronization” licenses and how they differ from mechanical licenses, see Amanda Webber, Digital Sampling and the Legal Implications of Its Use After Bridgeport, 22 St. John’s J. Legal Comment. 373, 393 (2007) [hereinafter Webber].

[46] Clearance for the Recording & Film Industries, Rhythm and Views, http://rhythmandviewsusa.com/music.html (last visited Feb. 23, 2014) [hereinafter Clearance for the Recording & Film Industries].

[47] Id.

[48] 17 U.S.C. §115 (2012).

[49] The Copyright Royalty Tribunal sets the statutory rate, which is currently 9.1 cents or 1.75 cents per minute of composition; whichever is greater, per unit.  Copyright Royalty Rates
Section 115, the Mechanical License, United States Copyright Office (Oct. 18, 2010), http://www.copyright.gov/carp/m200a.html.

[50] 17 U.S.C. §115 (2012).

[51]  Michael Simon, The Basics of Mechanical Licensing from Harry Fox, Artists House Music (Aug. 12, 2007), http://www.artistshousemusic.org/articles/the+basics+of+mechanical+licensing+from+harry+fox.

[52] 17 U.S.C. §115 (2012).

[53] See Webber, supra note 45, at 393.

[54] Id. at 392-93; Clearance for the Recording & Film Industries, supra note 46.

[55] See infra Section V.

[56] Jim Ayre, Girl Talk and the Sample License Clearance Process, Future of Music Coalition (Aug. 28, 2008), http://futureofmusic.org/blog/2008/08/28/girl-talk-and-sample-license-clearance-process [hereinafter Ayre]; Webber, supra note 45(“A substantial number of people, including artists, lawyers, copyright holders, and their various representatives and assistants, must approve any given sample request-and any one of them can veto it by simply ignoring, forgetting, or otherwise failing to respond to it.”).

[57] See Webber, supra note 45, at 393-94.

[58] Id.

[59] Id.

[60] See A. Dean Johnson, Music Copyrights: The Need for an Appropriate Fair Use Analysis in Digital Sampling Infringement Suits, 21 Fla. St. U. L. Rev. 135, 140-41 (1993).

[61] Feist Publications, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361 (1991).

[62] CMM Cable Rep v. Ocean Coast Props., 97 F.3d 1504, 1513 (1st Cir. 1996).  Among other ways, the presumption may be rebutted, inasmuch as the copyright office does not fully examine a claim for a copyright before a certificate is issued.  Id.

[63] Tuff ‘N’ Rumble Mgmt., Inc. v. Profile Records, Inc., No. 95 CIV. 0246 (SHS), 1997 WL 158364, at *1, *2-3 (S.D.N.Y. Apr. 2, 1997) (finding that plaintiff did not enjoy the prima faciepresumption of having valid copyright ownership in the musical composition and sound recording because the date of publication was eighteen years prior to its copyright registration, and the plaintiff failed to provide any evidence on who owned the original copyright).

[64] Johnson v. Gordon, 409 F.3d 12, 18 (1st Cir. 2005).  Because a defendant rarely concedes to copying, the First Circuit stated, “the plaintiff may satisfy his obligation indirectly by adducing evidence that the alleged infringer enjoyed access to the copyrighted work and that a sufficient degree of similarity exists between the copyrighted work and the allegedly infringing work to give rise to an inference of actual copying.”  Id. (emphasis added); see Franklin Mint Corp. v. Nat’l Wildlife Art Exch., Inc., 575 F.2d 62, 63 (3d Cir. 1978) (same).

[65] T-Peg, Inc. v. Vermont Timber Works, Inc., 459 F.3d 97, 108 (1st Cir. 2006) (citations omitted) (emphasis added).

[66] Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F. Supp. 177, 178 (S.D.N.Y. 1976).

[67] Id.

[68] Id.

[69] Id. at 179.

[70] With regard to proving access, Bright Tunes Music Corp. asserted “He’s So Fine” enjoyed number one in the United States billboard charts for five weeks, and in England, Harrison’s home country, “He’s So Fine” was similarly listed as one of the top hits.  Id.

[71] Id. at 180-81.

[72] Laureyssens v. Idea Group. Inc., 964 F.2d 131, 140 (2d Cir. 1992).

[73] Tuff ‘N’ Rumble Mgmt., Inc. v. Profile Records, Inc., No. 95 CIV. 0246 (SHS), 1997 WL 158364, at *1, *1 (S.D.N.Y. Apr. 2, 1997).

[74] See id. at *4.

[75] Id.; see Universal Athletic Sales Co. v. Salkeld, 511 F.2d 904, 907 (3d Cir. 1975) (stating that when demonstrating substantial similarity, “dissection and expert testimony are irrelevant”); accord Midway Mfg. Co. v. Bandai-Am., Inc., 546 F. Supp. 125, 138 (D.N.J. 1982).

[76] See infra Section III.PartE.

[77] Grand Upright Music Ltd. v. Warner Bros. Records, Inc., 780 F. Supp. 182, 183-84 (S.D.N.Y. 1991); see John Schietinger, Bridgeport Music, Inc. v. Dimension Films: How the Sixth Circuit Missed A Beat on Digital Music Sampling, 55 DePaul L. Rev. 209, 222-23 (2005) (discussing the large amount of criticism Grand Upright Music Ltd. has drawn for failing to apply either a substantial similarity or fair use analysis).

[78] Grand Upright Music Ltd. v. Warner Bros. Records, Inc., 780 F. Supp. 182, 183-84 (S.D.N.Y. 1991).

[79] Id. at 185.

[80] Id at 183.

[81] Id. at 185.

[82] Newton v. Diamond, 388 F.3d 1189, 1190 (9th Cir. 2004).

[83] Id.

[84] Id. at 1192 (emphasis added).

[85] Id. at 1190.

[86] Id. at 1190-91.

[87] “Fragmented literal similarity exists where the defendant copies a portion of the plaintiff’s work exactly or nearly exactly, without appropriating the work’s overall essence or structure.” Id. at 1195.  “Substantiality” is measured by considering both the qualitative and quantitative significance of the copied portion in relation to the plaintiff’s work as a whole.  See Worth v. Selchow & Righter Co., 827 F.2d 569, 570n.1 (9th Cir. 1987) (“[T]he relevant inquiry is whether a substantial portion of the protectable material in the plaintiff’s work was appropriated—not whether a substantial portion of defendant’s work was derived from plaintiff’s work.”).

[88] See Newton v. Diamond, 388 F.3d 1189, 1196 (9th Cir. 2004).

[89] Id.; see Eriq Gardner, Madonna and Music Producer Win ‘Vogue’ Sampling Lawsuit, The Hollywood Reporter (Nov. 18, 2013, 12:39 PM), http://www.hollywoodreporter.com/thr-esq/madonna-music-producer-win-vogue-657052 (“No reasonable audience would find the sampled portions of a 1976 composition significant.”).

[90] Williams v. Broadus, No. 99 CIV. 10957 MBM, 2001 WL 984714, at *1, *4-5 (S.D.N.Y. Aug. 27, 2001).

[91] Id. at *1.

[92] Id.

[93] Id.

[94] Id. at *4-5.

[95] Id. at *4.

[96] Bridgeport Music, Inc. v. Dimension Films, 383 F.3d 390, 401 (6th Cir. 2004).

[97] Id. at 393.

[98] Id.

[99] Id. at 394.

[100] Id. at 398.

[101] Id. at 398.

[102] Bridgeport Music, Inc. v. Dimension Films, 383 F.3d 390, 399 (6th Cir. 2004).

[103] Id. at 399.

[104] 17 U.S.C. § 107 (2006).

[105] Id. (emphasis added).

[106] See Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 552, 561 (1985).

[107] Ringgold v. Black Entm’t Television, Inc., 126 F.3d 70, 79 (2d Cir. 1997).

[108] Id. (emphasis added).

[109] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994).

[110] Id. (emphasis added) (“[T]ransformative use is not absolutely necessary for a finding of fair use.”).

[111] Id. at 583.

[112] Id. at 579.

[113] Id.

[114] Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 455 n.40 (1984).

[115] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 584-85 (1994); see Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 562 (1985) (“The fact that a publication was commercial as opposed to nonprofit is a separate factor that tends to weigh against a finding of fair use.”).

[116] Campbell, 510 U.S. at 584.

[117] Id. at 579.

[118] Id.

[119] In 1994, “The Circle of Life,” with African vocals performed by Lebo M and a South African Chorus, was released as a track to The Lion King: Original Motion Picture Soundtrack.  Steve Leggett, The Lion King Original Motion Picture Soundtrack, All Music, http://www.allmusic.com/album/the-lion-king-original-motion-picture-soundtrack-,mw0000623827/ (last visited Mar. 8, 2014).

releases is the original motion picture soundtrack for the 1994 Disney animated film, The Lion King. In 1994, ”

[120] Daniel Crespo, Good Vibrations 11: Official Guide To Spring Weekend 2014, Soundcloud (Apr. 21, 2014), https://soundcloud.com/crespothedj/good-vibrations-11-official.

[121] See Jim Ayre, supra note 56.

[122] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994).

[123] See Rezaie Shervin, Play Your Part: Girl Talk’s Indefinite Role in the Digital Sampling Saga, 26 Touro L. Rev. 175, 176-79 (2010) [hereinafter Shervin].

[124] Campbell, 510 U.S. at 579.

[125] See Shervin, supra note 123; Torgerson, supra note 4.

[126] See Be heard everywhere, SoundCloud, https://soundcloud.com/creators (last visited Mar. 25, 2014).  

[127] See Ayre, supra note 56.

[128] Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 552 (1985).

[129] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 586 (1994).

[130] Id.

[131] Campbell, 510 U.S. at 586; see Barton Beebe, An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005, 156 U. PENN. L. REV. 549, 610 (2008). Through 2005, of the 306 opinions discussing fair use, only 17.7% of the opinions included the second factor while only 6.5% of the opinions included the second factor to state that it was irrelevant. Id. Further, the outcome of the second factor typically has no significant impact on the overall outcome of the fair use analysis. Id.

[132] See Campbell, 510 U.S. at 586.

[133] Rogers v. Koons, 960 F.2d 301, 309-10 (2d Cir. 1992).

[134] Christopher Collie & Eric Gorman, DIGITAL SAMPLING OF MUSIC AND COPYRIGHTS: IS IT INFRINGEMENT, FAIR USE, OR SHOULD WE JUST FLIP A COIN?, B.C. Intell. Prop. & Tech., 1, 4 (2011).

[135] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 586 (1994).

[136] Id. at 586 (emphasis added).

[137] Ringgold v. Black Entm’t Television, Inc., 126 F.3d 70, 76 (2d Cir. 1997).

[138] See Campbell, 510 U.S. at 586.  But see Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 56 (2d Cir. 1936) (“[N]o plagiarist can excuse the wrong by showing how much of his work he did not pirate.”).

[139] See Campbell, 510 U.S. at 589.

[140] Campbell, 510 U.S. at 587-88; Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 562 (1985).

[141] Campbell, 510 U.S. at 588.

[142] Id. at 589.  In the Supreme Court’s fair use analysis, in the context of a parody case, the Court noted that copying does not become excessive merely because the portion taken went to the “heart” of the original work because “the heart is also what most readily conjures up the song.” Id.

[143] Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 587-89 (1985).

[144] Campbell, 510 U.S. at 589.

[145] Id. at 587.

[146] Id. at 587-89.

[147] Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994) (citing Nimmer § 13.05(A)(4), 13–102.61).

[148] See Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 566 (1985).

[149] Campbell, 510 U.S. at 591.

[150] Id. at 568.

[151] Campbell, 510 U.S. at 584-85.

[152]Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 451 (1984).

[153] See Nate Jones, Hold Me Closer, Biggie: The Top 5 Girl Talk Moments, Time (Nov. 15, 2010), http://newsfeed.time.com/2010/11/15/hold-me-closer-biggie-the-top-5-girl-talk-moments/;Shervin, supra note 123, at 202-03.

[154] See Rae, supra note 38.

[155] The purpose of the expanded definition of “music sampler” is to limit potential infringers under a pre-existing agreement (i.e. a “work for hire” agreement) with respect to production, distribution, reproduction, performance, or creation of derivative works from the music containing samples so long as those parties comply with the compulsory sample license requirements.  Any agreement thereafter is subject to paragraph (B)(1).

[156] The purpose of this provision is to shield potential secondary liability to the extent those third parties similarly adhere to the provision.  However, failing to do so permits the copyright owner to bring suit against the third party, and the third-party, to the extent they further transformed the work created by the “music sampler” may argue a stronger fair use defense under 17 U.S.C. § 107.

[157] If the DJ (a music sampler) never returns a profit, then the fear of market harm is effectively reduced since it is unlikely that the DJ is well known enough to impact any market.

[158] The purpose of this sub-clause is to provide the copyright owner with accurate accounting regarding and including the total time of any “looping;” this further shifts the burden to the copyright owner to demonstrate non-compliance if the required accounting is properly sent.

[159] The purpose of this note in conjunction with paragraph (c) is to clear any ambiguity with regard to royalty requirements with musical compositions compulsory licenses under section 115 to the extent the music sampler derives any revenue in connection with the sampled original work.  In other words, should the music sampler adhere to this provision in addition to section 115, no liability exists for the music sampler.  Also, should the music sampler not derive any revenue, there is no requirement to obtain a compulsory license, and no liability exists either.

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