If a Sound Recording Is Copied and Nobody Hears It, Is There Copyright Infringement?

BACKGROUND

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.

THE ISSUE

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 SPLIT

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.

LOOKING FORWARD

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.

Does Registration Mean Registration: When Can Copyright Holders Sue?

Background

Copyright law protects the exclusive rights of creators of works—like novels, songs, computer software, and even fictional characters. These rights include the distribution and reproduction of copyrighted works and the power to assign or transfer those rights. In the United States, the copyright symbol “©” may serve to provide notice to potential infringers that the creator’s work is protected. But the symbol does not mean that the federal government specifically granted it copyright protections. Copyrights do not need to be registered with the federal government to be protected. Original works are under copyright protection once created and “fixed in a tangible medium of expression.” The owner of a copyright may register it at any time during (or before) the term of the copyright – usually 70 years after an individual creator’s death.

Issue

While registration is not required for copyright protection, it is required for filing a lawsuit to enforce a copyright. Before the enactment of the Copyright Act of 1976, copyright law varied from state to state and so did the conditions necessary for copyright enforcement. The act created a uniform system of copyright enforcement. Section 411 of the Copyright Act provides that “no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.” The statute prescribes steps in the registration process but does not define when “registration” has occurred to allow a copyright owner’s infringement suit. Courts are split on whether “registration” occurs upon submission of an application for registration (the “application approach”) or upon approval of the registration application (the “registration approach”).

The Split

In Cosmetic Ideas v. IAC (2010), the Ninth Circuit adopted the application approach, which relies more on the purpose of the statute than on a plain language interpretation of the text. In trying to interpret “registration” under § 411 of the Copyright Act, the Ninth Circuit started with the plain language of the statute and referred to § 101 of the Act which defines “registration” as “a registration of a claim in the original or the renewed and extended term of copyright.” The court concluded that the definition was “unhelpful” and provided no guidance in interpreting the meaning of “registration.” The court then examined the statute as a whole, finding ambiguity—it then concluded that the Act’s “plain language” unequivocally supported either interpretation, and that it must “go beyond . . . the plain language to determine which approach better carries out the purpose of the statute.” Ultimately, the court adopted the application approach, finding that its efficiency accomplished the central purpose of registration – a robust national register of existing copyrights.

On the other hand, in Fourth Estate Pub. v. Wall-Street.com (2017), the Eleventh Circuit adopted the registration approach. In Fourth Estate, the court based its reasoning primarily on the language of the Copyright Act. It reasoned that the text “makes clear” that the registration approach is correct. The Eleventh Circuit rejected appeals to the legislative history and the policy of the Act, finding that the Act’s words “are unambiguous” and no further inquiry is required.

Looking Forward

Despite the registration requirement’s prior treatment by circuit courts as jurisdictional, the US Supreme Court held in Reed Elsevier, Inc. v. Muchnick (2010) that not fulfilling the registration requirement does not deprive a federal court of subject matter jurisdiction over a case. However, the Court in Reed Elsevier did not tackle the circuits’ different approaches to defining registration. A resolution may nonetheless be on its way thanks to the Fourth Estate case. A petition for certiorari to the Supreme Court filed in October 2017 is currently pending. The Court has invited the Solicitor General to file a brief expressing the views of the United States on the case. There is a good chance that the Supreme Court will grant certiorari given that the case involves statutory interpretation and there is a clear circuit split. Otherwise, an amendment to the statute may be needed to resolve the issue.

 

Copying Music is Not Vogue

The Issue

Have you ever listened to a song and recognized the melody? Perhaps you have heard something similar in another song? Your first thought might be “they copied my favorite artist!” And you might be right. However, if the appropriate license is obtained, it is completely legal.

Sampling is the “actual physical copying of sounds from an existing recording for use in a new recording, even if accomplished with slight modifications such as changes to pitch or tempo.”[1] Sampling is a common occurrence in the music industry. After all, there are only so many combinations we can come up with using nine notes. This is why sampling music is allowed when it licensed.

Now, try to remember if you’ve ever thought the same way about a particular note or a sound in a song. Probably harder to discern. So, what happens if a sound is sampled? Does that violate copyright laws? The Circuits are split.

The Split

The Sixth Circuit

In Bridgeport Music, Inc. v. Dimension Films, the Sixth Circuit took a hard “[g]et a license or do not sample” approach. In doing so, it created a bright-line rule:

For copyrighted sound recordings, any unauthorized copying constitutes infringement, no matter how trivial.[2]

The Court took a “literal reading” approach towards its interpretation of §§ 114(a) and 106 of Title 17 of the United States Code, concluding that while imitating or simulating “the creative work fixed in a recording” is permissible, making an actual copy of any of its contents not. To support its reasoning, the Court made an analogy to pirated music: “If you cannot pirate the whole sound recording, can you ‘lift’ or ‘sample’ something less than the whole.” The Court answered no.

Furthermore, the Sixth Circuit rejected a de minimis analysis for the following reasons:

  1. Adopting a de minimis analysis would require employment of “mental, musicological, and technological gymnastics.”
  2. Artists and recording companies have previously sought licenses “as a matter of course.”
  3. The record industry can work out its own guidelines.
  4. The new rule “should not play any role in the assessment of concepts such as ‘willful’ or ‘intentional’” in cases currently before the courts or in those already decided.
  5. “[T]here is no Rosetta stone” in interpreting the statute. As previously stated, a literal approach was taken to reading the statue. The Court, therefore, did not refer to legislative history because digital sampling was not done in 1971. Accordingly, if the record industry wanted a change, they can ask Congress for “a clarification or change in the law.”[3]

The Court, therefore, held that no de minimis inquiry was needed—where there was no authorization, infringement was established.

The Ninth Circuit

The Plaintiff in VMG Salsoul, LLC v. Ciccone alleged that a horn hit was sampled from his song “Ooh I Love It (Love Break)” (“Love Break”) in “Vogue” by Madonna. Interestingly, the person who recorded “Love Break” also recorded “Vogue” with Madonna. The horn hits are between 3:11 and 4:38, and from 7:01 to the end, at 7:46 in “Love Break” and at 1:14, 1:20, 3:59, 4:24, 4:40, and 4:57 in “Vogue.”

See if you can spot them:

https://www.youtube.com/watch?v=a_YmUoQKJRw

https://www.youtube.com/watch?v=GuJQSAiODqI

Here, the Ninth Circuit took a different approach.

First, the Court looked at the statute and concluded that Congress intended to limit, as opposed to expand, the rights of copyright holders.[4] In addition to its differing approach to statutory interpretation, the Ninth Circuit’s decision also was based on the fact that a de minimis exception has been applied “across centuries of jurisprudence.”[5] Thus, it was applicable in this dispute, directly in conflict with the Sixth Circuit’s holding.

Next, the Court looked to legislative history:

“…infringement takes place whenever all or any substantial portion of the actual sounds that go to make up a copyrighted sound recording are reproduced in phonorecords by … any … method, or by reproducing them in the soundtrack or audio portion of a motion picture or other audiovisual work. Mere imitation of a recorded performance would not constitute a copyright infringement even where one performer deliberately sets out to simulate another’s performance as exactly as possible.”[6]

Finally, the Court concluded that the legally protected interest is “the potential financial return from his compositions which derive from the lay public’s approbation of his efforts.”[7] “If the public does not recognize the appropriation, then the copier has not benefitted from the original artist’s expressive content. Accordingly, there is no infringement.”[8]

Therefore, in the Ninth Circuit, the “de minimis” exception does apply to copyrighted sound recordings. Put simply, if a lay person can’t recognize the similarity, there is not infringement.

Looking Forward

Depending on which jurisdiction you’re in, sampling a specific sound in a song may get you in trouble for copyright infringement. So, which approach is better: an authorization requirement for any sampling of a sound or just sounds the lay public can recognize?

[1] VMG Salsoul, LLC v. Ciccone, 824 F.3d 871, 875 (9th Cir. 2016).

[2] Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005).

[3] Bridgeport Music, 410 F.3d at 805.

[4] VMG Salsoul, 824 F.3d at 883.

[5] Id.

[6] H.R. Rep. No. 94-1476, at 106 (1976), reprinted in 1976 U.S.C.C.A.N. at 5721 (emphasis added).

[7] Arnstein v. Porter, 154 F.2d 464, 473 (2d Cir. 1946).

[8] VMG Salsoul, 824 F.3d at 881.