Friday 3 June 2016

Is music sampling back in Vogue?

A US Appeals court has decided that Madonna did not violate copyright law when her producer allegedly used a short section of music taken from another recording for her hit song “Vogue”. The split 2-1 decision must  call into doubt the strict approach taken by the 6th Circuit Court of Appeals in the leading case of Bridgeport Music, Inc., et al. v. Dimension Films, et al 410 F.3d 792 (September 2004). There the court in Cincinnati posed the question “If you cannot pirate the whole sound recording, can you ‘lift’ or ‘sample’ something less than the whole?” The Court’s answer to this was in the negative” and the court added “Get a license or do not sample – we do not see this as stifling creativity in any significant way.”

But in this new case, the U.S. 9th Circuit Court of Appeals said the horn segment at the heart of the copyright lawsuit  lasted less than a second and would not have been recognisable to a general audience.

Judge Susan P. Graber said for the majority: "The horn hit occurs only a few times in ‘Vogue' .... without careful attention, the horn hits are easy to miss.” The decision fits in neatly with the December 2014 decision by New York federal judge Lewis Kaplan who dismissed TufAmerica's lawsuit against Jay Z and his record companies which alleged he had violated copyright by sampling an "oh" on the song, "Run This Town," released on the album The Blueprint 3 from an older sound recording entitled "Hook & Sling Part 1" saying ""Plaintiff's tautological argument that 'oh' must be qualitatively significant to Hook & Sling Part I and to the "Hook & Sling" Master because defendants' sampled it more than 40 times in "Run This Town" misunderstands copyright law generally and the substantial similarity test in particular," writes the judge, later adding, "If the original recording has been sampled at all ... the fact of the matter is that the samples appear only faintly in the background of Run This Town and are, at best, only barely perceptible to the average listener."

VMG Salsoul, LLC, which holds a copyright to “Love Break,” sued Madonna and others, alleging that  Shep Pettibone, the producer of “Vogue,” copied a 0.23-second segment of horns from “Love Break,” which he had worked on years earlier. "Vogue" was a release from the album "I'm Breathless", and topped the charts in all major music markets reaching number one in the USA, the UK, Australia, Canada, Italy and Spain, selling six million units worldwide.

Having listened to the recordings Judge Graber held: “we conclude that a reasonable jury could not conclude that an average audience would recognize the appropriation of the composition.”

However, Judge Barry G. Silverman dissented, arguing that the use of the horn segments, if proven,  would amount to infringement: “It is no defense to theft that the thief made off with only a ‘de minimis’ part of the victim’s property”.  He said a copyright of a recording amounted to a “valuable property right, the stock-in-trade of artists who make their living recording music and selling records.”

The German Constitutional Court in Karlsruhe recently made a ruling in a case brought by the German avant garde rock band Kraftwerk against German music producer Moses Pelham over a two second sample - balancing the position of rights owners against a right of artistic freedom - coming down on the side of the latter. According to the Constitutional Court, requiring the phonogram producer's permission for taking even the "tiniest sliver" of a recording when it was possible to recreate the sound without copying violated freedom of art as it would essentially prohibit modern forms of pop music, namely hip hop, which relied on sampling. Norms of hip hop demanded actual sampling, not recreation of that snippet. Licensing was not a viable alternative namely for songs that were sampled from many other recordings, as it  as it was very time consuming and prohibitively complicated.

TufAmerica, Inc v   WB Music Corp, et al. Case 1:13-cv-07874-LAK 

Bridgeport Music, Inc., et al. v. Dimension Films, et al 410 F.3d 792

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