Ignoring the critical balance between creativity and property rights that is essential to a healthy copyright system, a 3-judge panel of the U.S. Court of Appeals for the Sixth Circuit today reaffimed the maverick position that it first announced last year – that the well-accepted “de minimis” rule in copyright law does not apply to sound recordings.
Under the court’s latest ruling in Bridgeport Music v. Dimenson Films, even two notes sampled from a sound recording is automatically copyright infringement. (The court acknowledged that taking one note probably would not amount to infringement, since copyright law defines a sound recording as “the fixation of a series of musical, spoken, or other sounds.”)
The case involves a two-second, three-note guitar riff sampled from the song “Get Off Your Ass and Jam,” which was changed in pitch and “looped” into another song, “100 Miles.” “100 Miles” was used in the soundtrack of a movie, I Got the Hook Up. The moviemakers were the defendants in the case. A federal trial court ruled that the copying was de minimis and therefore not actionable under copyright law. The Sixth Circuit panelreversed last year, but then agreed to grant “rehearing.”
The decision on rehearing essentially repeated last year’s ruling. It ignored not only the defendants’ argument that there is no basis for abolishing the de minimis rule for sound recordings, but also a friend-of-the-court brief filed by the Brennan Center for Justice and the Electronic Frontier Foundation, which pointed out that Congress had specifically said infringement of a sound recording only takes place when “all or any substantial portion” – that is, something more than a de minimis amount – of a copyrighted sound recording is reproduced.1
The appeals court’s decision was frankly driven by considerations of practicality. The 3 judges thought that a “bright line” rule would be easier for the music industry to follow than the uncertainty of trying to predict when a sample is unrecognizable, or otherwise short enough, to be de minimis. Music industry practice is generally to get permission anyway, the judges said; and “the market will control the license price and keep it within bounds.”2
What this analysis ignores is the whole sense of balance that is at the core of copyright. Not every borrowing is actionable; the law does not concern itself with trifles. A free culture cannot thrive when even two notes of a tune are locked up and unavailable for use without permission of the owner – who, in most instances, is free to deny it. And the court’s push for predictability and bright-line rules runs contrary to the “fair use” doctrine, so basic to copyright law. Samplers will still have fair use defenses when they take reasonable amounts of copyrighted music without permission, especially for “transformative” purposes.3
The Sixth Circuit judges did acknowledge that the fair use defense is still open in this case. But their acknowledgment is a grudging one, and the whole thrust of their opinion is toward a rigid rule that will suppress creative sampling of sound recordings unless the samplers seek and obtain permission, and are able to pay for it.
“Get a license or do not sample,” the judges write. “We do not see this as stifling creativity in any significant way.”4 This certainly does not sound like a court that recognizes the importance of fair use, or any other limits on the entertainment industry’s vision of a closed, controlled, and property rights-driven culture.
Update: On June 16, 2005, No Limit Films filed a petition for rehearing before the “full bench” of Sixth Circuit judges, arguing that the 3-judge panel decision is unprecedented, conflicts with established law, and makes unsupported assertions about the music industry. However, the Sixth Circuit denied the petition.
*This article previously appeared on the Free Expression Policy Project, which existed from 2000-2017.
1. Brief of Amici Curiae Brennan Center for Justice and Electronic Frontier Foundation, p. 6.
2. Bridgeport Music, Inc. v. Dimension Films, No. 02-6521 (June 3, 2005), slip opinion, p. 8.
3. See “The Progress of Science and Useful Arts,” pp. 8-11, and Will Fair Use Survive? pp. 9-14.
4. Slip opinion, p. 8.