Intellectual property expert Joseph Fishman, Professor at Vanderbilt University Law School, gives an overview of intellectual property rights and liabilities when it comes to sampling music.
Sampling involves using copyrighted material in new works. Courts in the U.S. are split on how to determine whether one’s sampling of another’s work constitutes copyright infringement. In Nashville, where the Sixth Circuit’s rule applies, there is no de minimis test. For example, if even one second of a copyrighted recording is used in another’s work, then it is enough to become infringement because there is no minimum test. However, in Los Angeles, where the Ninth Circuit rule applies, courts generally will not find infringement where the work sampled forms only a minimal and insubstantial part of the new work. Nevertheless, Professor Fishman reminds us that “fair use” is a defense against copyright infringement regardless of which rule from the circuit court applies.
Sampling can be costly. While there is no standard pricing, certain factors drive the high cost of sampling other’s work such as the prestige and stardom of the original work and the extent to which the sampled work will influence and shape the new work. Prof. Fishman explores examples where famous American artists borrowed from prior works such as Jay-Z’s Hard Knock Life, sampling from the 1977 musical Annie, Puff Daddy’s I’ll Be Missing You, a tribute to the Notorious B.I.G. which borrowed from The Police, and Ariana Grande who built a the song 7 Rings around the framework of My Favorite Things from The Sound of Music.
Joseph Fishman is a professor of intellectual property and a recognized expert on music copyright.
Bridgeport Music, Inc. v. Dimension Films (2005) – The Sixth Circuit Court of Appeals case standing for the proposition that there is no de minimis test for whether a sample is considered copyright infringement.
VMG Salsoul, LLC v. Ciccone (2016) – The Ninth Circuit Court of Appeals disagrees with Sixth Circuit and says for there to be infringement the part copied from the old work cannot be a minimal and insubstantial part of the new work.
An Interview with Intellectual Property Law Professor Joseph Fishman
Joel Cohen: What exactly is sampling? Is it a legal term?
Music Sampling Rights
Professor Joseph Fishman: It's not a legal term, but it is a term that is used ubiquitously in the industry. Sampling refers to using a clip of sound from the actual recording. You could imagine somebody going into the studio and recreating the sound from an earlier recording from scratch, and it could sound indistinguishable to a listener, which is the original and which is the copy. That would not be sampling. Despite that similarity in sound, if we're talking about sampling, we're talking about using the actual recording and putting it into a new recording.
Joel Cohen: An example of that might be "It's A Hard Knock Life", the Jay-Z song where they're pulling from the musical Annie.
Professor Joseph Fishman: I don't know off the top of my head whether that was actually sampling as opposed to the sort of recreation in the studio. This is another area where experts play a large role, like trying to decipher whether something, bit for bit, was from the underlying recording as opposed to being recreated in the studio. But yes, that Jay-Z song, "Hard Knock Life", if they were using the actual recording from the musical Annie, then that would be a sample.
Joel Cohen: Generally speaking, artists pay to do sampling. But is sampling ever legal? Is it ever legal and free?
Music Sampling Licensing and Liability
Professor Joseph Fishman: As a practical matter, if we are talking about commercially released music, these things are licensed; they are paid for. For anybody who would like to test the waters, there's a circuit split on the question of whether a sample could be so minuscule, right, whether there's a de minimis exception to sampling. If it's a second, less than a second, do you really need to clear the rights for that? The Sixth Circuit in Nashville said there is no de minimis floor for sampling. The Ninth Circuit afterwards said yes, there is. And then, whether you're in the Sixth Circuit or the Ninth Circuit, you could always argue fair use. That's not a concept that has come up yet, but there is this all-purpose defense under copyright law that is a multi-factor balancing test where you can argue, yes, these two works are similar, but I was allowed to copy in this instance because my use was a fair use. So you can make that argument, that's not foreclosed in any circuit, but it's unpredictable enough that, as a practical matter, everybody licenses the samples that they use if we are talking about commercially released, popular music.
Music Sampling Cost and Pricing
Joel Cohen: And are these custom license agreements? Is there a default, a standard pricing for sampling?
Professor Joseph Fishman: It's bespoke. It's going to depend a lot on who you are sampling and how long the clip is. If you are taking Led Zeppelin and making it the backbone of your song, that is going to cost a lot of money. If you are sampling a relatively unknown artist and it's only going to come up in an out-of-the-way spot in your recording, that's going to be much more affordable. There's no set rate for this kind of usage.
Joel Cohen: So if I was an amateur trombone player and a famous artist wanted to use my YouTube video of me playing the trombone, they'd probably pay me as little as they could.
Professor Joseph Fishman: It's all a function of leverage there. They should pay you, but they could always go find somebody else. Sampling arrangements can be incredibly expensive and take up a big part of the upside of the individual song. It's certainly possible. I'm thinking of some of the hip-hop songs from the late 90s, like Puff Daddy, where you had a very recognizable sample that was prominently included. The tribute after Notorious B.I.G was killed relied heavily on "Every Breath You Take". The baseline words can't express what you mean to me, even though you're gone, we still a team. Those samples would be quite high. You can also see, even if we're not talking about sampling, to go back to the musical composition side that we were talking about before, some of those command huge premiums where the songwriter wants to clear the rights in advance.
Let’s take for example Ariana Grande's use of "These Are a Few of My Favorite Things" as the whole framework of her song. I don't have any inside information, but what was being reported was that she was sharing 90% of the publishing revenue with Rogers and Hammerstein, or whoever controls the rights there. So, if you have an iconic enough song and you have somebody who does not want to litigate over it, you could have a lot of money being paid for the rights.