One of the exclusive rights of a sound recording copyright holder is the right to produce derivative works, or “copies that directly or indirectly recapture the actual sounds” of an original recording. 17 U.S.C. §114 (b). A copyright owner may rearrange, remix, or otherwise alter in sequence or quality “the actual sounds fixed in the sound recording” to create a derivative work. 17 U.S.C. §114 (b). This right, however, does not prohibit “the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording.” 17 U.S.C. §114(b).
Sampling refers to the copying of audio from an existing sound recording, potentially changing the pitch or tempo of the original recording and incorporating the clip into a new recording. In a copyright infringement suit, the de minimis exception applies when the alleged copying is so minimal that it is not actionable copying. See Ringgold v. Black Entm’t Television Inc. (2d Cir. 1997). A copied product exceeds the de minimis threshold when the copy is substantially similar to the original. However, the Sixth and Ninth circuits have split as to whether the de minimis exception applies when copyrighted sound recordings are sampled.
Does 17 U.S.C. §114(b) expand the exclusive rights of sound recording copyright holders such that the de minimis exception does not apply?
The Sixth Circuit has held the de minimis exception inapplicable for claims alleging sound recording infringement and has adopted a bright-line rule that any sampling of a sound recording violates the exclusive rights of a copyright holder. The Ninth Circuit has held the exact opposite, applying the de minimis exception to sound recording sampling infringement actions.
In Bridgeport Music, Inc. v. Dimension Films, the Sixth Circuit held that the de minimis inquiry did not apply when the defendant admitted to sampling, and therefore copying, a sound recording. The court argued that sampling violated a copyright owner’s exclusive right to create derivative works. The court concluded that a sample was a derivative work because of the statutory language in §114(b) describing derivative works as sounds from an original recording that “are rearranged, remixed, or otherwise altered.” Further supporting its holding, the Sixth Circuit interpreted the inclusion of the term “entirely” in §114(b) as signifying that a sound recording owner has the exclusive right to sample his own recording no matter the amount sampled. The court justified its elimination of the de minimisexception and adoption of this bright-line rule for three reasons. First, the court highlighted the “ease of enforcement” in requiring artists either “[g]et a license or do not sample.” The court did not view this bright-line rule as stifling creativity because an artist can imitate or duplicate a sound without sampling and infringing on the original. Second, the court maintained that the “market will control the license price” such that it will not become unreasonable. Third, the court argued that “sampling is never accidental.” The Sixth Circuit reasoned that because sampling “is a physical taking rather than an intellectual one,” the de minimis exception does not apply.
In VMG Salsoul, LLC v. Ciccone, the Ninth Circuit expressly disagreed with its sister circuit’s decision, holding that sampling 0.23 seconds of audio did not exceed the de minimis threshold and therefore did not infringe on the original copyrighted sound recording. The court evaluated whether “an average audience would recognize the appropriation” to determine if the sampled audio exceeded the de minimis standard. Emphasizing that the plaintiff’s own expert witness could not discern which notes of the original sound recording were sampled, the court concluded that an “average audience would not do a better job,” and therefore, there was no infringement.
The plaintiff in VMG Salsoul urged the court to apply Bridgeport’s bright-line rule that for “copyrighted sound recordings, any unauthorized copying—no matter how trivial—constitutes infringement,” but the Ninth Circuit refused to do so. The court cited legal precedent showing that the “rule that infringement occurs only when a substantial portion is copied is firmly established in the law.” Then, the court turned to the statutory text. The court noted that 17 U.S.C. §102, which lists copyrightable works of authorship, “treats sound recordings identically to all other types of protected works” and nothing in the text indicates that sound recording should be treated differently than any other work. The court found nothing in the statutory text to suggest that “Congress intended to eliminate the de minimis exception” for sound recordings. The court then addressed 17 U.S.C. §114(b), which was central to the Sixth Circuit’s holding. Focusing on the sentence containing “entirely” just as the Sixth Circuit had, the court described the sentence as “imposing an express limitation on the rights of a copyright holder” and hesitated to “read an implicit expansion of rights into Congress’s statement of an express limitation on rights.” The court interpreted this provision as only dictating that a “new recording that mimics the copyrighted recording is not an infringement . . . so long as there was no actual copying” without eliminating the longstanding de minimis exception for sound recordings.
The court went so far as to call the Sixth Circuit’s decision illogical and emphasized that a “statement that rights do not extend to a particular circumstance does not automatically mean that rights extend in all other circumstances.” Further, the court explicitly rejected Bridgeport for three reasons. First, the court did not find the “physical taking” component of sampling as suitable justification for eliminating the de minimis exception. The court reasoned that physical taking “exists with respect to other kinds of artistic works as well, such as photographs,” and the de minimis rule still applies to those works. Second, the court acknowledged that even if sound recordings could be treated differently than other works according to the statute, “that theoretical difference does not mean that Congress actuallyadopted a different rule.” The court hesitated to eliminate the de minimis exception without Congress’s explicit intention to do so. Lastly, the court highlighted the contradiction between the Sixth Circuit’s argument that its decision would be beneficial for musicians by saving costs and the Supreme Court’s express assertion in Feist Publ’ns, Inc. v. Rural Tel. Serv. Co. that the Copyright Act does not protect the “sweat of the brow” or the fruit of an author’s labor.
In the digital age, this issue cannot be left unresolved. Artists will continue to sample sound recordings as sampling is popular within the music industry, but this ambiguity makes it difficult to anticipate whether sampling invariably requires a license or whether a license requirement can be determined on a case-by-case basis. Because the deadline to submit a petition for certiorari to the Supreme Court has passed for both cases, this circuit split will remain unresolved for the foreseeable future.