Beasties, The Godfather of Funky Soul and Pretty Women: When Does "Sampling" Other Artists' Music Equal Copyright Infringement?

Beasties, The Godfather of Funky Soul and Pretty Women: When Does "Sampling" Other Artists' Music Equal Copyright Infringement?

by Michelle Kaminsky, Esq., December 2009

It's happened to all of us. You're listening to a song, and suddenly you're transported back to your youth with just a few notes. This flashback is not a figment of your imagination but the result of "sampling"—a now-common technique where an artist lifts part of one music track and places it in the body of a different song, as the backbeat, the break or just a quick stab. In fact, sampling has become so common that the late James Brown's label created a department devoted just to listening to new releases for samples of his music (Brown’s seminal R&B created the perfect library of samples for hip-hop artists: instant recognition and some of the funkiest funk known to man).

Early hip-hop music relied heavily on samples, and in the early-90's song "Pass the Mic," the Beastie Boys used a six-second segment from jazz flutist James Newton's composition "Choir” and paid Newton a licensing fee for their use of his sound recording. That should have been that…but Newton sued the Beasties anyway: he felt that the amount of his song that they used it infringed his copyright in the song’s composition. This raised a question that, at the time, was a relatively new one—how much sampling is too much?

In Newton v. Diamond LLC BMG, the Ninth Circuit affirmed the District Court’s verdict of non-infringement, stating that, despite the composition’s originality, the Beasties’ sampling of it was de minimis—in other words, the band sampled so little of Newton’s composition that Newton’s claims lacked merit. Specifically, the three-judge panel stated that “three notes, C-D flat-C, sung over a background C note played on the flute…[w]hen played on the sound recording licensed by Beastie Boys…for approximately six seconds” was not enough to constitute infringement, since the use was not likely to be recognized by a listener as Newton’s original and therefore was not “substantially similar”—one of the two touchstones of copyright infringement. The panel pointed out that the group had paid the license fee for Newton’s sound recording and that, given its minimal use of Newton’s composition, that was enough. The group was vindicated further when the same court refused to reconsider its ruling before an 11-judge panel.

But check it out: in 2005, the Sixth Circuit rocked the bells of the Ninth Circuit’s decision, and ruled N.W.A.’s three-note sample of Funkadelic’s “Get Off Your Ass and Jam”—one-half the number of notes of Newton’s used by the Beastie Boys—was copyright infringement. This, despite the fact that the three notes were played in the form of a single, two-second chord. This meant that, in the Sixth Circuit, there was no de minimis defense for sampling: use was use, and use required that a licensing fee be paid. The effects of this ruling have been felt worldwide—in 2008, the proto-electronica group Kraftwerk successfully sued in Germany, where the court held that even the smallest shred of another’s work can be infringement. (The sample at issue in the Kraftwerk case was a 2-second drum-machine beat.)

And it’s not just rappers who have found themselves embroiled in this controversy: even Michael Jackson was accused of unlicensed use of “Mama-say mama-sah ma-ma-coo-sah” by Cameroonian saxophonist Manu Dibango. It seems safe to say that, worldwide, the 10-syllable riff would be recognizable—as MJ’s. But Dibango sued Jackson for unlicensed use of his composition (not his sound recording, since Jackson recorded his own version, without sampling Dibango’s recording) and when Rihanna sampled Jackson’s recording of Dibango’s composition, she and the King of Pop were named defendants in a 2009 suit by Dibango.

The bottom line: if you sample any portion of another artist's copyrighted song without permission, you could be liable for infringement. And penalties can be extremely steep.

This article mostly avoids the issue of fair use—whether the use of another’s work can fall within the best-established defense to copyright infringement. Since the cases discussed above, numerous artists have claimed fair use in defense of their use of unlicensed use of others’ works—including portions far more substantial than those mentioned above. Artists like Dangermouse and Girl Talk  have actually made their names by sampling brazenly—almost daring the sampled artists to sue them. In a word, these samplers claim that their use of others’ work is “transformative” in that it creates a wholly new work from the older, sampled one. The defining case, despite being a bit long in the tooth by now, is Campbell v. Acuff-Rose Music, Inc., which centers on the 90s rap group 2 Live Crew’s use of Roy Orbison’s “Pretty Woman.” This case has become a staple in copyright law classes across the country, resulting in some rhythmic head-nodding from professors.

The prevalence of music sampling has spawned firms dedicated to just getting sample clearance. Armed with knowledge about the going rate for samples, these clearance houses do the leg work for you, including tracking down exactly who owns certain copyrights. And if you have the stomach for litigation, you can try to claim “fair use.”

One more surprising outgrowth: certain artists—for example, the Beastie Boys—have offered one solution: give anyone who wants one a "Creative Commons" license to certain songs that expressly allows users to "rip, sample, mash and share" those tracks.

Want to be safest? Ask permission when you want to use someone else’s work—and if that involves paying a licensing fee, then decide whether it’s worth it to you. Is that James Brown riff going to make the difference between your single blowing up or not? Or can you get by without it?

This article was originally published in January 2005 and updated September 2011.