Mary Ellen with Ed from Midnight Syndicate at Cinema Wasteland 3/31/12

Technology since the 90s has driven and ultimately reigned in the unauthorized use of copyrighted material, especially music. From the widespread use of unlicensed music samples in the early days of hip hop to the rise of clearinghouses for the licensing of samples currently, musical artists have become more willing to pay for others’ works used in their creations. Many musicians formerly espoused a “live and let live” philosophy when it came to enforcing their ownership rights in their compositions and recordings. However, when digital technology allowed individuals to upload, download and share their music collections and obtain music without paying for it through the internet, the record companies and artists started to feel the pinch. With reportedly millions of dollars in lost sales through organized sharing sites such as Napster and Grokster, some high profile artists launched a war against unauthorized distribution and use of their music, Metallica in particular. The Napster lawsuits led to agreements that benefited both the artists and satisfied the public’s desire for convenient access to music. Now Napster is a pay site and ITunes distributes more music than any record company on earth.

Similarly, musical artists grew weary of other artists using parts of their recordings without permission in their new recordings. Arguments that the excerpts taken were too small to be actionable (the de minimis claim) were common in copyright infringement cases, which required “substantial similarity” between the original composition and the new song. This standard was used in sampling cases until 2005, when the Bridgeport Music, Inc. v. Dimension Films, Inc. case was decided. The Bridgeport case established a bright line test for copyright infringement by music sampling, stating that no matter how minimal the amount taken, physical copying of any part of a sound recording constitutes infringement. The only issue is whether the actual sound recording has been used without authorization. The 6^th District Circuit Court of Appeals based their analysis on section 114(a) of Title 17 of the U.S. Code, the 1976 Copyright Act, which sets out the exclusive rights of copyright in sound recordings, including reproducing the work in copies or phonorecords, and the right to prepare derivative works based upon the copyrighted work. In short, only the copyright owner of a song may sample any part of that song. IN Bridgeport, the defendants had used a two second sample of a guitar solo from a George Clinton and the Funkadelics song in a tune that was recorded and then used in a movie soundtrack. The lower court went into great detail about the distinctiveness of the riff taken, how it was looped and used in five parts of a new song. The appeals court threw that analysis aside in stating that once a copyrighted sound recording has been digitally sampled, there is infringement and no de minimis analysis should be undertaken. The test is still based on substantial similarity for compositions (recall the “My Sweet Lord”/”He’s So Fine case in the seventies), but the “physical taking” involved in sampling sound recordings amounts to copyright infringement no matter how small the part taken or how the parts may have been changed.