By Nicole Fitzpatrick
From Taylor swift to Bruno Mars to Frank Ocean, the music industry’s biggest heavy-hitters all have one thing in common: not being immune from copyright lawsuits. Copyright lawsuits are often complex, involving litigation, that involve the advising of the jury on the complexities of copyright law and the music industry.
COPYRIGHT LAW AND ITS RELATION TO MUSIC
The basic framework for current United States copyright law is provided by The Copyright Act of 1976, enacted as a comprehensive revision of the copyright law found in Title 17 of the United States Code.[1] Copyright infringement occurs “when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner.”[2]
In the music industry, copyright is differentiated by the copyright for the song or composition itself, and the copyright for a specific sound recording of the song.[3] United States courts have applied copyright laws in music infringement cases in a variety of ways. The Sixth Circuit Court of Appeals applies a “bright line” rule that any unauthorized sampling of a sound recording, no matter how trivial, is infringement.[4] The Sixth Circuit relied on 17 U.S.C 114(b) which states that the rights in a sound-recording copyright “do not extend to 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.”[5]
Conversely, the Ninth Circuit found the opposite and applied a de minimus inquiry to determine whether sampling was significant enough to establish a copyright claim, creating a split in the courts.[6]
EVOLVING INTERNET INFLUENCE
Sampling and interpolation, both licensed and unlicensed, are staples of the music industry. Sampling has been defined by the courts as “involv[ing] copying sounds from an existing recording and incorporating them, with or without alteration, into a new one.”[7] While interpolation involves taking part of an existing musical work (as opposed to a sound recording) and incorporating it into a new work.[8]
While the public dissection of albums and songs are not novel ideas, in recent years there has been an uptick in blogs and TikTok accounts dedicated to pointing out potential samples and similarities in songs that have may influenced changes in the music industry and copyright laws.
The website “WhoSampled” provides a sample sourcing directory, that has been cited as a bane by rap producers and label owners who see it as a base for potential lawsuits, while TikTok creator @jarredjermaine points out both credited and potentially uncredited samples to his 4.5 million followers.[9] Revealing a potentially unlicensed sample, particularly in the realm of hip-hop, has been dubbed “sample snitching”.[10] Hip Hop Historian Dart Adams remarked “I’ll see TikToks and [Instagram] Reels where people go and reveal what samples are used. First of all, I get why that would be something that people will be into, since they didn’t grow up in the era that I did.”[11]
Online backlash over Olivia Rodrigo’s 2021 release “Deja Vu” arose when fans pointed out the similarities between Rodrigo’s song and the bridge of “Cruel Summer”, a cut from Taylor Swift’s 2019 Lover.[12] Likely to avoid potential copyright litigation after the backlash, Rodrigo and her team soon added Swift and collaborators Jack Antonoff and St. Vincent as credited songwriters on “Deja Vu”.[13]
Under federal case law, a claim for copyright infringement has three elements: (1) ownership of a valid copyright (2) factual copying and (3) substantial similarity.[14] In a case involving rap duo Ryan Lewis and Macklemore, and jazz musician Paul Batiste; Batiste was unable to prevail on his copyright claim against the duo as he was unable to produce evidence for a reasonable jury to infer the defendants had access to his music or to find striking similarities between his songs and that of the defendants.[15] In Rodrigo/Swift controversy, Rodrigo’s public admission alleged she is a fan of Swift’s and was inspired by “Cruel Summer” would have allowed for Swift to prevail on the access element if this matter had gone into litigation.[16]
COULD ‘SELF SAMPLE SNITCHING’ BE THE FUTURE?
Other artists have been effectively “sample snitching” on themselves and including credit for every inspiration. Beyoncé, who oft receives criticism for the amount of credited writers on her tracks, has been ahead of the curve and likely able to avoid expensive, vexatious litigation because of this careful practice. Perhaps most notably arises from the track “Hold Up” from the 2016 surprise release Lemonade. Credits for “Hold Up” included credits to Vampire Weekend’s, Ezra Koenig, based on a series of tweets and credits to Yeah Yeah Yeah’s because Koenig’s tweets were riffed from their song “Maps”.[17]
In the recently concluded long-standing legal battle between Taylor Swift, Sean Hall, and Nathan Butler, the co-authors of 3LW’s “Playas Gon’ Play”, Hall and Butler cite Beyoncé’s credits on “Hold Up” as an example of industry standard in their complaint.[18]
Other artists and those involved in the music industry still subscribe to silence and disavow sample snitching and have commented that fear of litigation has steered many from sampling all together.[19]
Another approach is to reform. Eothen Alapatt, label manager, advocates for a formalized approach in United States law for clearing samples that would allow smaller labels to release albums containing samples in legal ways rather than the rights holder holding the upper hand in every litigation.[20]
[1] Copyright Law of The United States (Title 17) and Related Laws Contained in Title 17 of the United States Code, United States Copyright Office,https://www.copyright.gov/title17/ (last visited Feb. 20, 2023).
[2] Definitions, United State Copyright Office, https://www.copyright.gov/help/faq/faq-definitions.html (last visited Feb. 20, 2023).
[3] Sampling, Interpolation, Beat Stores and More: An Introduction for Musicians Using Preexisting Music, United States Copyright Office, https://www.copyright.gov/music-modernization/educational-materials/Sampling-Interpolations-Beat-Stores-and-More-An-Introduction-for-Musicians-Using-Preexisting.pdf (last visited Feb. 20, 2023)[hereinafter Sampling].
[4] Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 799 (6th Cir. 2005).
[5] Id.
[6] VMG Salsoul, LLC v. Ciccone, 824 F.3d 871, 8754 (9th Cir. 2016).
[7] Batiste v. Lewis, 976 F.3d 492, 493-494(5th Cir. 2020).
[8] Sampling, supra note 3.
[9] Mosi Reeves, Sample Snitching: How Online Fan Chatter Can Create Legal Trouble for Rap Producers, Pitchfork (January 21, 2022), https://pitchfork.com/features/article/sample-snitching-how-online-fan-chatter-can-create-legal-trouble-for-rap-producers/.
[10] Id.
[11] Id.
[12] Jem Aswad, Katy Perry’s ‘Dark Horse’ Case and Its Effect on Songwriting, Variety (August 6, 2019), https://variety.com/2019/biz/news/katy-perry-dark-horse-lawsuit-joyful-noise-chilling-effect-on-songwriting-1203292606/.
[13] Steffanee Wang, Olivia Rodrigo Officially Confirms “Deja Vu” Was Inspired By “Cruel Summer”, Nylon (July 9, 2021), https://www.nylon.com/entertainment/olivia-rodrigo-deja-vu-inspired-by-cruel-summer-taylor-swift-credit.
[14] Batiste, 976 F.3d at 502.
[15] Id.
[16] Wang, supra note 13.
[17] Thomas Smith, The Surprising Credits on Beyoncé’s ‘Lemonade’, NME (April 26, 2016), https://www.nme.com/blogs/nme-blogs/the-surprising-credits-from-beyonces-lemonade-8915.
[18] Complaint at ¶¶ 31-34, Hall v. Swift, Case No. 2:17-cv-06992-MWF-AS (Feb. 13, 2018).
[19] Reeves, supra note 9.
[20] Reeves, supra note 9.