The Song Remains the Same: A Review of the Legalities of Music Sampling

By Ben Challis

This is an updated and abridged version of an article by Ben Challis, music industry lawyer and visiting professor in law, Buckinghamshire New University, first published on the Internet in 2003. It discusses the extent to which sampling copyrighted music and lyrics without permission is legal, providing relevant examples from U.K. and U.S. case law.

Sampling can be defined as incorporating pre-existing recordings into a new recording, whether part or all of a tune (a melody) and/or the lyrics.

Copyright subsists in sound recordings and in the music and lyrics to songs. The U.K. Copyright, Designs and Patents Act 1988 (CDPA) provides that only the owner of a work can copy it; issue copies or lend or rent copies of the work to the public; perform, show or play the work in public; broadcast it; and make an adaptation of the work, or do any of the above in relation to an adaptation. Any kind of sampling without the consent of the copyright owner amounts therefore, prima facie, to infringement. In both the U.K. and U.S., sampling a song without permission constitutes an immediate copyright infringement – or unauthorized use of copyrighted material owned by another.

Sampling without permission usually violates two rights – copyright in the sound recording (owned by an artist or record company) and copyright in the song itself (owned by the songwriter or music publishing company). Before carrying out sampling, one must first seek the original copyright owners’ consent – or that of their agent, such as collection societies (for example, the Performing Right Society or Phonographic Performance Ltd. in the U.K.) that manage copyright on behalf of owners.

Count the cost

U.S. attorney Michael McCready points out that in almost all circumstances a license must be obtained before sampling. The results of failing to do so can be disastrous.

Dr Dre protégé Truth Hurts learned this lesson to its cost in 2003. Truth Hurts used a four-minute sample from Indian composer Bappi Lahiri in its debut album and single “Addictive”, without permission or acknowledgement. A federal judge ruled that "Addictive" be removed from shelves unless the composer was credited as the author of the sampled work.

Similarly, The Verve counted the cost of a borrowed melody when faced with a court action they settled with ABKCO – owners of the Rolling Stones’ "The Last Time" – for 100 percent of the royalties resulting from the exploitation of The Verve's "Bittersweet Symphony," which borrowed from the Stones' work.

In 1990, U.S. rapper Vanilla Ice also paid the price for using the recorded bass line and melody of the Queen/David Bowie track "Under Pressure" in his "Ice Ice Baby" single – losing 100 percent of his royalties to the stars.

Mr. McCready cautions that sampling without a proper clearance license leaves the sampler open to heavy penalties in the U.S. Even at a basic level, a copyright infringer is liable for "statutory damages" that generally run from US$500 to US$20,000 for a single act of infringement. If the court determines infringement was willful, damages can run as high as US$100,000. The copyright owner can also get a court to issue an injunction forcing the infringer to cease violating the copyright owner's rights. And the court can order the recall and destruction of infringing albums.

“Get a license or do not sample”

In Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005), the U.S. federal appeals court ruled that recording artists must clear each musical sample in their work – even minor, unrecognizable “snippets” of music. The lower court had ruled artists must pay when the sample of other artists' works used by them is recognizable, but that it was legal to use musical snippets as long as they were not identifiable. The decision by the 6th Circuit Court of Appeals threw out that distinction. The court asked "If you cannot pirate the whole sound recording, can you 'lift' or 'sample' something less than the whole?" The Court's answer was “no,” and it added "Get a license or do not sample – we do not see this as stifling creativity in any significant way."

The case centered on the N.W.A. song “100 Miles and Runnin’,” which samples a three-note guitar riff from “Get Off Your Ass and Jam” by 1970s funkmaster George Clinton and Funkadelic. In the two-second sample, the guitar pitch has been lowered, and the copied piece was "looped" and extended to 16 beats. The sample appears five times in the new song. N.W.A.'s song was included in the 1998 film I Got the Hook Up produced by Dimension Films, who argued the sample was not protected under copyright law.

Bridgeport Music, owners of the copyright in the Funkadelic song, appealed the lower court's summary judgment in favor of Dimension Films. The lower court said in 2002 that the riff in Clinton's song was entitled to copyright protection, but the sampling "did not rise to the level of legally recognizable appropriation." The appeals court disagreed, saying a recording artist who acknowledges sampling may be liable, even when the source of a sample is unrecognizable.

In simple terms, this means any sample used without permission is an infringement. In both the U.K. and U.S., copyright owners have available a range of remedies against sampling – including injunctive relief and damages. However, two legal doctrines have given limited hope to would-be samplers.

“At its best, sampling benefits society by creating a valuable new contribution to modern music literature. At its worst, sampling is vandalism and stealing …” – Gregory T. Victoroff in Sampling

The U.K.: “Substantial Use”

U.S. and U.K. law provides tests to determine infringement in related, but not identical, doctrines. Both seem to have reached the conclusion that any “recognizable” use would infringe, such that infringement occurs whenever a listener hearing a bar of music can easily identify a similar sounding piece of music. The U.K. “substantial use” doctrine provides that infringement must relate to a "substantial" part of the original work – each case being decided on its individual merits, depending on the context.

When this defense was tested in Produce Records Limited v. BMG Entertainment International UK and Ireland Limited (1999), the court reinforced the view that sampling sound recordings without the consent of copyright owners is prima facie infringement. The Los Del Rio hit song “Macarena,” produced by BMG, sampled a seven-and-a-half-second section of The Farm song "Higher and Higher," a copyrighted recording owned by Produce Records. No clearance had been obtained to use the sample, so Produce Records brought proceedings against BMG for breach of copyright. BMG applied to strike out the proceedings on the basis that the sample could not be argued to constitute a substantial part of "Higher and Higher." BMG argued this was a question for the judge to decide when comparing the two recordings.

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Produce Records introduced expert evidence from a forensic musicologist demonstrating that parts of "Higher and Higher" were more recognizable and memorable than others. BMG’s strike-out application was rejected; it was accepted that judges were not expert musicologists, and could be assisted by expert evidence as to whether sampling was substantial or not, and also by extrinsic factual evidence. [BMG eventually settled out of court.]

Prior to that decision, an unwritten “three-second rule” was used according to which sampling three seconds of a work or less would not lead to legal action against the sampler. This is in fact not the case.

The owners of lyrics are in the same musical boat. In 2002, it was held that even short sampling of lyrics requires copyright clearance: In Ludlow Music Inc v. Robbie Williams and others, Robbie Williams was obliged to pay damages to Loudon Wainwright III because of the similarity of lyrics in his song "Jesus in a Camper Van" to Wainwright’s earlier work.

The U.S.: “substantially similar” and “fair use”

According to U.S. law, infringement occurs when a recording or composition fails a “substantially similar” test. A work that is substantially similar infringes the original work unless the very limited doctrine of “fair use” applies.

In Acuff-Rose Music v. Campbell, 114 S.Ct 1164 / 510 US 569, 575 (1994), the U.S. Supreme Court reversed the decision of a lower court that found 2 Live Crew's parody of Roy Orbison’s "Oh, Pretty Woman" to be copyright infringement and not fair use as a matter of law. The Supreme Court disagreed, stating that the use of prior work could be fair, but whether it was had to be determined case by case. The case at hand was not one of fair use [on remand, the parties settled out of court], but the following test for substantial similarity was adopted thereafter:

• Does the plaintiff own a valid copyright in the material allegedly copied?
• Did the defendant copy the infringed work?
• Is the copied work substantially similar?

For works said to be substantially similar to an earlier work, there seems to be very limited defense of fair use. But, to qualify for fair use, a sample must be used for purposes such as parody, criticism, news reporting, research, education or a similar non-profit use. Using a sample merely because it sounds good is simply not enough to qualify for protection as fair use – indeed quite the reverse. Mr. McCready insists the rumor that one “can use four notes of any song under the ‘fair use’ doctrine” is utterly false. “One note from a sound recording,” he points out, “is a copyright violation.”

The limits

The U.S. case of Newton v. Diamond, F.3d 1189, 73 U.S.P.Q.2d (BNA) 1152 (9th Cir. 2004) puts some limits on the doctrine that any use without permission is infringement. In 1992, the Beastie Boys got a license from ECM Records to sample a copyrighted sound recording from James W. Newton Jr.'s flute composition, “Choir.” The group sampled and used a six-second, three-note sequence and looped it throughout its song "Pass the Mic," featured on the Capitol album Check Your Head.

In 2000, Newton sued the Beastie Boys, alleging the remix infringed the "heart" of his flute composition, and that the band should have obtained a license from him, the composer of the underlying work, in addition to a license to use the recording. The U.S. Appeals Court, affirming the court of first instance's decision, held there was no infringement, because use of the sample was minimal, there were no substantial similarities between the two works nor would the average person recognize the appropriation of the composition.

In 2003 a New York federal court also upheld the fair use doctrine by dismissing a lawsuit against Sony Music Entertainment and rappers Ghostface Killah, Raekwon and the Alchemist, for copyright infringement. The plaintiff, Abilene Music, accused the rappers and Sony – who released the album – of infringing its copyright in the well-known song "What a Wonderful World." The infraction allegedly occurred when the trio made slang references to marijuana in a rap that began with a variation on the first three lines of the song popularized by Louis Armstrong. The defendants successfully argued that, while the song's lyrics were adapted from "What a Wonderful World" they were protected as fair use under the U.S. Copyright Act.

In granting a summary judgment for Sony and the rappers, Judge Gerard Lynch said the rap was clearly a parody, intended to criticize and ridicule the cheerful perspective of the original song. The judge also noted the rap made key changes to the lyrics and overall effect of the lines, and was not an imitation of the original. The Judge held that, whereas the first three lines of "Wonderful World" describe the beauty of nature, the rap version read more like an invitation to “get high” with the singer. The slang reference to marijuana and the dark nature of the rap tune were in stark contrast to the mood of beauty in the original song.

In another decision, the U.S. District Court allowed The Source magazine (published on CD) the right to use short sections from two Eminem tracks (and up to eight lines of lyrics in print) under the fair use doctrine for the purposes of criticism and review, because the tracks contained allegedly racist lyrics written when the rapper was a teenager. That is really what is meant by fair use – criticism, reporting and review – and is quite different from putting lyrics or samples into another recorded musical work.

Act with caution

Despite those cases, the fair use doctrine is very limited, and it would be unwise for anyone using a recorded sample to rely on it, except in a carefully prescribed context and with sound legal advice.

In general terms, one must almost always obtain permission and a license from the copyright owner to use a sample. Neither the “substantial use,” “substantially similar” or “fair use” tests are free sampling passes! The words of U.K. judge Justice Peterson in 1916 still hold true: “If it's worth copying then its worth protecting.” Samplers beware!