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  Los Angeles Lawyer
The Magazine of the Los Angeles County Bar Association

September 2010     Vol. 33, No. 6


MCLE Article: Mix and Mash

Technological advances allowing the creation of new musical works from samples of copyrighted material are challenging the assumptions of copyright law

By Jeffrey Omari

Jeffrey Omari is an attorney who works as a consultant in the music legal affairs department of MGM Studios. He is an adjunct law professor at the Fashion Institute of Design and Merchandising and at Emerson College.

By reading this article and answering the accompanying test questions, you can earn one MCLE credit. To apply for credit, please follow the instructions on the test.

Good Copy Bad Copy, a 2007 documentary on copyright and culture, features Brazilian music producer Beto Metralha sitting in his recording studio and demonstrating, step by step, how he chooses music samples to create songs for the Brazilian genre tecno brega. The music Metralha samples in his tutorial is used without the permission of its owners and is likely a violation of applicable copyright laws. Ironically, Metralha not only samples the Gnarls Barkley hit "Crazy," produced by DJ Danger Mouse, but also criticizes Danger Mouse by claiming he is "very lucky not to be in jail"1 for the unauthorized samples he used in creating his 2004 Grey Album.

Music sampling is the use of a portion of preexisting recordings or compositions in a new sound recording.2 It first appeared in Jamaica in the 1960s and migrated to the United States in the 1970s with the dawn of hip-hop music and culture.3 Indeed, sampling has been fundamental to rap music since hip hop's "golden era" of the late 1970s and 1980s. However, the technological advances of the digital era have greatly enhanced sampling's creative possibilities.

As the new style of music created by hip-hop artists and others began to flourish, record labels and music publishers realized that their sound recordings and compositions were being appropriated. As a result, they took steps to enforce their rights through the courts. In decisions such as Grand Upright v. Warner Bros. Records, Inc.,4 and Bridgeport Music, Inc. v. Dimension Films,5 courts have attempted to provide guidelines for all those involved in the clash between a thriving art form and preexisting music. The conflicts continue, however, with technological developments during the last decade igniting a sampling craze that has challenged the limits of copyright law.

One of the more recent sampling disputes involves hip-hop prodigy Lil Wayne and his recording "I Feel Like Dying." As in most sampling cases, the issue involves the use of an uncleared sample--music used without permission of the copyright owner. The sample in dispute is the recording "Once," written by Karma-Anne Swanepoel. The chorus from "Once" is looped throughout "I Feel Like Dying." While these facts are not unique, the case contains a novel issue. "I Feel Like Dying" was never released commercially. It was "leaked" (prematurely released) to the Internet and has since gone viral, reaching No. 7 in Spin's "Best Songs of 2007."6 Subsequently, the owner of Swanepoel's composition, Urband & Lazar Music Publishing, filed a copyright infringement suit in Louisiana district court. This sets the stage for the resolution of a rare dispute in which a song that has never been commercially released is the subject of an infringement claim.7

Lil Wayne's case is just one example of the challenges music sampling presents to artists, attorneys, and lawmakers. At issue is the delicate balance between cultivating creativity and protecting the intellectual property rights of copyright owners. This paradox is embedded in Article I of the U.S. Constitution: "The Congress shall have the Power...[to] Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."8 Thus far, the ingenuity of artists and IT developers are light-years ahead of current copyright law.

Navigating through recent developments in music copyright law requires an understanding of the rights a song contains and the laws triggered for its use. Most songs contain two sets of rights: 1) the rights in the sound recording and 2) the rights in the underlying musical composition.9 The musical composition is the words and music of a song, while the sound recording is the recorded rendition of those words and music. For example, Bob Dylan (or his music publisher) has a copyright in Dylan's composition "All along the Watchtower." When Jimi Hendrix recorded his version of the Dylan composition, Hendrix created a sound recording that contains the copyrighted Dylan composition. To create his recording, Hendrix needed the permission of the owner of Dylan's composition.

The leading case involving the sampling of sound recordings is the Sixth Circuit's Bridgeport Music, Inc. v. Dimension Films.10 At issue in Bridgeport was a two-second use of George Clinton's "Get off Your Ass and Jam," which was sampled and looped throughout the NWA song "100 Miles and Runnin."11 The NWA recording appeared in the film I Got the Hook Up, which was distributed by Dimension Films. Bridgeport Music and Westbound Records, which owned the copyrights in Clinton's song, sued Dimension Films for failing to clear the Clinton sample contained in "100 Miles and Runnin" prior to distribution of the film.12

In overturning the district court's grant of summary judgment in favor of Dimension Films, the Sixth Circuit acknowledged the music industry's need for a rule that "adds clarity to what constitutes actionable infringement with regard to the digital sampling of copyrighted sound recordings."13 Accordingly, the Sixth Circuit established one: "[G]et a license or do not sample."14

The rule used when sampling musical compositions is not as clear-cut, however. For example, in Newton v. Diamond,15 the Ninth Circuit clarified the infringement standard for compositions by holding that a claim is actionable only if there is "substantial similarity between the plaintiff's and the defendant's works."16 Newton involved an infringement claim against a popular rap group, the Beastie Boys, who sampled a portion of James Newton's recording "Choir" in the group's song "Pass the Mic." The Beastie Boys obtained a license to use the "Choir" recording but failed to seek permission for use of the underlying composition. The Ninth Circuit found the Beastie Boys sample was neither "quantitatively nor qualitatively significant" when compared to the "Choir" composition as a whole.17 Consequently, the court found the sample "de minimis" and therefore not actionable.18 Although Newton implies it is not always necessary to clear the rights in the composition, the prudent course of action, and the music industry standard, is to do so.19

Thus, the rules for music sampling can be clearly stated. Use of a copyrighted sound recording requires permission from the recording's copyright owner. When a composition is sampled, however, the standard is more subjective, because no action will follow "unless the copying is substantial."20

Fair Use Defense

When a copyright owner can show that a defendant used the owner's copyrighted sound recording or composition without permission, the defendant may respond with the affirmative defense of fair use.21 Even if the copyright owner can prove infringement by the defendant, the infringement will be excused if the use is deemed fair.

Section 107 of the U.S. Copyright Act is the source for the fair use doctrine, which "permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster."22 The defense limits the exclusive rights of copyright owners if the use of a copyrighted work is "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research,...."23 Courts consider four factors, pursuant to Section 107(1)-(4):

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Although courts generally evaluate each of these four factors, they often give special consideration to the first factor ("the purpose and character of the use"), which considers the "transformative" nature of the work.24 For instance, in Campbell v. Acuff-Rose Music, Inc., the U.S. Supreme Court stated:

Although transformative use is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine's guarantee of breathing space within the confines of copyright, and the more transformative the new work, the less will be the significance of other factors....25

Whether a new use is transformative requires determining if the use duplicates the original or "instead adds something new, with a further purpose or different character, altering the [original] with new expression, meaning or message."26 Further, a "use is considered transformative only where a defendant changes a plaintiff's copyrighted work or uses the plaintiff's copyrighted work in a different context such that the plaintiff's work is transformed into a new creation."27 Consequently, if the new use "merely repackages or republishes the original," it is unlikely to be a fair use.28

Further inquiry into the case law illustrates that courts consider the purpose of the defendant's use when determining whether the use is transformative. For instance, in Kelly v. Arriba Soft Corporation,29 the defendant's Internet search engine used thumbnail images of the plaintiff's copyrighted photographs to improve access to information. According to the Ninth Circuit, the defendant's use did not "supersede" the plaintiff's use of the images for artistic expression. Rather, the defendant's use served "a different function" and thus was transformative.30

Fair use transformation should not be confused with the transformation required to create a derivative work. Under Section 106(2) of the Copyright Act, copyright owners have the exclusive right to prepare derivative works of their copyrighted material. In this context, a derivative work is "a work based upon one or more preexisting works, such as a...musical arrangement[,]...sound recording, art reproduction[,]...or any other form in which a work may be recast, transformed, or adapted."31 This definition may suggest that the original author has exclusive rights over any transformation of his or her underlying work. Although, by definition, a derivative work does transform a preexisting copyrighted work, a fair use transformation generally is viewed as unrelated to the transformation involved in creating a derivative work. Thus, for purposes of fair use, courts "do not view the preparation of a derivative work--or any transformation or alteration of a work's content--as necessary to a finding that a defendant's use is transformative. Instead, courts focus on whether the purpose of the defendant's use is transformative."32

Visual artist Shepard Fairey and his now controversial image of Barack Obama, HOPE, provide a contemporary example of how an analysis of the difference between a fair use transformation and a derivative work is extremely fact-specific. Using a 2006 Associated Press photo, Fairey made a poster of then-Senator Obama that became synonymous with the Obama campaign's message during the 2008 presidential election.33 Fairey's defense to the AP's countersuit34 hinges on fair use.

The heart of the case is whether Fairey's image is transformative in a fair use sense or whether HOPE is merely a derivative work. If Fairey's piece is simply a "trace job" repackaging the original AP photo, as some visual artists suspect,35 then it most likely lacks transformative purpose and the requisite originality of expression, meaning, or message required for fair use transformativeness. Consequently, HOPE would be a derivative work of the original photo, and a violation of the AP's rights.

Although Fairey's case has yet to be decided, U.S. District Judge Alvin Hallerstein recently encouraged the two parties to settle the dispute, stating, "I have a feeling...The Associated Press is going to win."36 It remains unclear, however, if this case will address the obvious fair use issues, because Fairey also is under criminal investigation for attempting to conceal evidence in the matter.37

Contemporary Challenges

While many artists understand that the right sample can enhance a song's popularity and profitability, others see sampling as an art form and are intrigued by the creative potential sampling provides. Whatever their motivation, artists are no longer limited by the confines of analog devices, since "digital technology allow[s] artists to slow down, speed up, combine, and otherwise alter samples."38

Although the recording industry was well aware of the potential pitfalls of digital sampling, it was officially put on notice in 2004 when DJ Danger Mouse had an idea for what he termed an "art project." What Danger Mouse devised was a "mashup"--an offspring of sampling that mixes together two or more records to create a new song.39 He combined music from the Beatles' White Album with the lyrics from Jay Z's Black Album. The resulting Grey Album was simultaneously a commercial success and a nightmare for the recording industry.

Since Jay Z had released an a cappella version of his Black Album, apparently to encourage remixes and mashups, Danger Mouse's use of the Jay Z material was not legally challenged. However, the unauthorized use of the Beatles' recordings drew the ire of EMI, the copyright holder of the White Album. Oddly enough, and possibly because the Grey Album was never released commercially, no legal action was taken against Danger Mouse. EMI did attempt to halt the album's distribution, even as Danger Mouse claimed the album's popularity "wasn't supposed to happen...I just sent out a few tracks [and] now online stores are selling it and people are downloading it all over the place."40

Clearly projects such as the Grey Album appropriate sound recordings and their underlying musical compositions. As a result, permission from both sets of rights holders is essential. Nevertheless, an argument that the Grey Album has a transformative creative purpose would not be difficult to make. Of course, other fair use factors must be weighed as well, but surely "copyright law's goal of promoting the Progress of Science and useful Arts...would be better served by allowing the use than by preventing it."41 Indeed, Danger Mouse said, "[I]t was not my intent to break copyright laws. It was my intent to make an art project."42

Since gaining notoriety with the Grey Album, Danger Mouse has apparently abandoned the legally suspect world of mashups and become a commercially successful recording artist. Taking his place is DJ Girl Talk, the focus of the current mashup scene. While the Grey Album was created by blending music from two different artists, Girl Talk's albums consist of songs that are sonic collages, layering one sample over another sample. His first album, Night Ripper, uses roughly 250 samples from more than 160 artists.43 Girl Talk's songs were all created without the permission of the copyright owners of the samples. But Girl Talk appears to be well versed in the meaning of fair use transformativeness, however, as he recently stated his songs are meant to be "something brand new, something that transcends [their] source material altogether."44

Girl Talk's music is arguably transformative in a fair use sense. Nevertheless, that argument has not been convincing to distributors like iTunes, which refuses to carry his product because of legal concerns.45 Girl Talk's albums are distributed online through a site called, appropriately enough, illegalart .net. Illegal Art's catalogue consists of mostly sample-based music whose origins are legally suspect.46 According to the company's founder, who uses the pseudonym Philo T. Farnsworth,47 "We exist simply to disseminate music that otherwise might not reach people, either for legal or aesthetic reasons." Farnsworth further noted that his company is "against copyright law when it impedes an artist's ability to interact with pre-existing recordings." He would like to see the fair use doctrine expanded "to include artistic recontextualization or manipulation."48

For all the controversy surrounding Girl Talk, no one has taken legal action against him. Surely the copyright holders of the samples contained on Girl Talk's albums have legitimate claims. Some believe legal action is not in the interests of record labels or the Recording Industry Association of America (RIAA) because "such a move would risk a precedent setting judgment in [Girl Talk's] favor."49 Another theory is that the lack of support from major online distributors might essentially make the mashup problem go away.50 The Pittsburgh-based Girl Talk has found an ally in his local congressman, Democrat Mike Doyle. Doyle believes the length of the samples51 may weigh in Girl Talk's favor and that "case law is going to fall on his side as this becomes more mainstream."52

While the potential of a fair use defense has helped Girl Talk evade the perils of copyright infringement lawsuits, Lil Wayne has not been as fortunate. In addition to the pending action over Swanepoel's "Once," Abkco Music recently sued Lil Wayne for an unauthorized use of the Rolling Stones' "Play with Fire." In truth, Lil Wayne (and many other popular rap artists) has volumes of unauthorized music released through mixtapes--selections of copyrighted sound recordings rearranged or mixed with new vocals laid over the beat. These mixtapes are often created without the consent of copyright holders. Nevertheless, they are a well-regarded marketing tool for creating buzz for rap artists and have become common practice in hip-hop culture.

Although mixtapes present obvious copyright issues, the DJs known for producing them have only recently come under legal scrutiny. In January 2007, for example, a Georgia SWAT team and Atlanta police raided mixtape artist DJ Drama's studios. Working in conjunction with the RIAA, Georgia officials arrested Drama and confiscated thousands of CDs and various other assets while claiming Drama violated Georgia's racketeering statute by his unauthorized reproduction of the copyrighted works found on his mixtapes.53 Worth noting is the fact that Georgia officials and the RIAA chose to pursue state law claims rather than federal copyright action. Regardless of their choice of law and forum, the message was obvious: The recording industry is no longer willing to turn a blind eye toward the mixtape market.

The irony of DJ Drama's arrest is that Lil Wayne was prominently featured on several Drama mixtapes. Moreover, after Drama's arrest, Lil Wayne said that mixtape DJs "gotta do it right" when releasing unauthorized music.54 What "doing it right" entails with regard to Swanepoel's lawsuit against Lil Wayne, however, remains unclear.

In theory, Lil Wayne should have sought the permission of the copyright owners of "Once" before using their sample in his recording.55 In reality, however, it is common practice for artists to sample a recording in the studio and wait to release the sampled recording until the proper clearances are obtained. But problems arise with digital technology because anyone with a copy of the unauthorized recording can leak the song to the world via the Internet. This is apparently what happened with "I Feel Like Dying," as it was never "officially released [or] offered for sale to the public."56

Lil Wayne's liability for the unauthorized use of "Once" is yet to be determined by a Louisiana district court. Nevertheless, the fact remains that Lil Wayne faces legal action over a song that had no earnings, while artists like Girl Talk, Danger Mouse, and countless others have committed similar sampling transgressions and escaped liability.

While practitioners may focus on the issue of the uniform application of copyright law, many recording artists are acting on their belief that the law is inhibiting the advancement of music and culture. When Beto Metralha in Good Copy Bad Copy shares his remix of "Crazy" with Girl Talk and allows Girl Talk to remix Metralha's remix, it is clear that artists from around the globe seem willing to shun legal constraints and work together to pursue that advancement.



1 Good Copy Bad Copy (Rosforth 2007).
2 Jarvis v. A&M Records, 827 F. Supp. 282, 294 (D. N.J. 1993) (citing Judith Greenberg Finnell, How a Musicologist Views Digital Sampling Issues, N.Y. L.J., May 22, 1992, at 5 n.3).
3 Newton v. Diamond, 349 F. 3d 591, 593 (9th Cir. 2003).
4 Grand Upright v. Warner Bros. Records, Inc., 780 F. Supp. 182 (S.D. N.Y. 1991).
5 Bridgeport Music, Inc. v. Dimension Films, 410 F. 3d 792 (6th Cir. 2005).
6 Jeff Weiss, L.A. Music Publisher's Suit against Lil Wayne Threatens to Rewrite Rules on Mixtapes: Karma Policed, L.A. Weekly, Sept. 4, 2008, available at http://laweekly.com/content/printVersion/321913.
7 Id.
8 U.S. Const. art. I, §8, cl. 8.
9 17 U.S.C. §102(a)(2), (7).
10 Bridgeport Music, 410 F. 3d 792.
11 Id. at 796.
12 Id. at 795.
13 Id. at 799.
14 Id. at 801.
15 Newton v. Diamond, 349 F. 3d 591 (9th Cir. 2003).
16 Id. at 594.
17 Id. at 597.
18 Id. at 594.
19 Permission to use the musical composition may come in the form of a mechanical license, a synchronization license, or a performance license. The fact that several licenses may be required to secure permission and use of a musical composition can be logistically and financially cumbersome for artists.
20 Newton, 349 F. 3d at 594.
21 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994).
22 Stewart v. Abend, 495 U.S. 207, 236 (1990) (internal quotation marks and citation omitted).
23 17 U.S.C. §107.
24 R. Anthony Reese, Transformativeness and the Derivative Work Right, 31 Colum. J.L. & Arts 467, 494 (2008)
25 Campbell, 510 U.S. at 579 (internal citations omitted); see Joseph von Sauers, Fair Is Fair, Los Angeles Lawyer, Apr. 1997, at 32.
26 Campbell, 510 U.S. at 579.
27 Wall Data, Inc. v. Los Angeles County Sheriff's Dep't, 447 F. 3d 769, 778 (9th Cir. 2006).
28 Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1111 (1990).
29 Kelly v. Arriba Soft Corp., 336 F. 3d 811 (9th Cir. 2003).
30 Id. at 819.
31 17 U.S.C. §101 (defining "derivative work").
32 Reese, supra note 24, at 494.
33 Patrick Ross, Judge Tells Shepard Fairey He'd Better Try to Settle, Copyright Alliance, http://blog.copyrightalliance.org/2010/06/judge-tells-shepard-fairey-hed-better-try-to-settle/ (last visited June 12, 2010).
34 Id. Fairey initially sued the AP claiming his artwork did not infringe the AP's copyrights; the AP countersued claiming copyright infringement.
35 Id.
36 Larry Neumeister, NY Judge Urges Settlement in Obama Poster Dispute, Associated Press, May 28, 2010, available at http://abcnews.go.com/Business/wireStory?id=10772035.
37 Id.
38 Newton v. Diamond, 349 F. 3d 591, 593 (9th Cir. 2003).
39 Astride Howell, Sample This, Los Angeles Lawyer, Sept. 2005, at 28.
40 Matthew Rimmer, Digital Copyright and the Consumer Revolution: Hands Off My iPod 133 (2007) (internal citation omitted).
41 Blanch v. Koons, 467 F. 3d 244, 251 (2d Cir. 2006).
42 Rimmer, supra note 40, at 251.
43 Lawrence Lessig, Remix: Making Art and Commerce Thrive in the Hybrid Economy 11 (2008).
44 Paul Tough, Girl Talk Get Naked. Often, Gentleman's Quarterly, Oct. 2009, at 150.
45 Lessig, supra note 43, at 13.
46 Noah Wane, Illegal Art: Who Samples the Samplers?, Splendid, http://splendidezine.com/features/illegal/ (last visited Nov. 28, 2009).
47 Id. The real Philo T. Farnsworth was an American inventor who was instrumental in the development of television. See http://www.philotfarnsworth.com.
48 Wane, supra note 46.
49 Robert Levine, Steal This Hook? D.J. Skirts Copyright Law, N.Y. Times, Aug. 7, 2008, at A1, available at http://www.nytimes.com/2008/08/07/arts/music/07girl.html?ei=512.
50 See, e.g., Lessig, supra note 43, at 13.
51 See 17 U.S.C. §107(3).
52 Levine, supra note 49.
53 Jennifer Geller, A Mixtape DJ's Drama: An Argument for Copyright Preemption of Georgia's Unauthorized Reproduction Law, 8 Chi.-Kent J. Intell. Prop. 1 (2008).
54 Shaheem Reid, 'Play The Game Fair': Lil Wayne Responds to DJ Drama Mixtape Bust, http://www.mtv.com/news/articles/1550185/20070118/lil_wayne.jhtml (Jan. 18, 2007).
55 See 17 U.S.C. §106(1).
56 Weiss, supra note 6.


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