Jay-Z and Kanye West have decided to settle a sampling lawsuit brought forth by soul musician, Syl Johnson.  The pair was accused of illegally sampling one of Johnson’s songs on a track entitled, “The Joy,” on their joint album, Watch the Throne.  Johnson has had a history of pursuing rappers for sampling, including a $29 million suit against Cypress Hill which was eventually dismissed on a technicality.

Some commentators speculate that the reason for the settlement was because there is no conclusive rule on the legality of sampling, despite an increasing number of lawsuits claiming damages.  While this legal uncertainty has not stopped other artists from pursuing a number of high profile lawsuits, the outcomes of such cases demonstrate a general lack of legal clarity.

The two principle legal defenses to sampling are de minimis use and fair use (fair dealing).  The former is invoked when the litigant argues that the sample is so negligible that the court needn’t bother with a fair use analysis as there is no copyright infringement to be found. The latter requires the sampler to prove that the use falls under a number of legal exceptions to copyright infringement.

There has been contradictory jurisprudence on the de minimis use defense.  For example, in a 2004 decision involving the Beastie Boys, the Ninth Circuit accepted the de minimis argument.  They based their reasoning on a significance test stating that, “To say that a use is de minimis because no audience would recognize the appropriation is thus to say that the use is not sufficiently significant.” Just one year later, the Sixth Circuit eliminated the de minimis defense with regards to sampling based on a value test.  The court explained that

“Even when a small part of a sound recording is sampled, the part taken is something of value.  No further proof of that is necessary than the fact that the producer of the record or the artist of the record intentionally sampled because it would (1) save costs, or (2) add something to the recording, or (3) both.”

Fair use doctrine with regard to sampling is even more unclear.  The Sixth Circuit’s holding which eliminated the de minimis use defense considered a sample of merely three notes lasting two seconds.  While the court stated that the door for fair use is still open in sampling cases, the strict test for infringement could have a bearing on other fair use defenses.  Accepted fair use defenses could include sampling that is transformative, for non-commercial purpose, copied only a small amount, the original had a thin copyright, or the copying did not harm the market for the original work or its derivatives. It would seem the only bright line rule would be that if one is unsure, it is best to assume that permission is required for sampling.

With the rise in popularity in sampling, and the mutual interest from both samplers and copyright holders, many artists now seek sample clearance before using a copyrighted work.  This requires seeking clearance from the owner of the song (typically the publisher) and the holder of the master recording (typically the recording company).  Alternatives to seeking sample clearance also include recreating the music sample, seeking copyright owners who want to have their work sampled, or contacting the artist directly if they still maintain some control over the work.

Andrew Baker is an LLB/BCL candidate at McGill University Faculty of Law.

Posted in Copyright, Fair Dealing, Infringement, Music Industry, Music Industry, US