Unfair? The Unique Status of Sound Recordings under U.S. Copyright Law and its Impact on the Progress of Sample-Based Music

Abstract

IntroductionOn June 3, 2005 in a United States federal courtroom in Nashville, Tennessee, seven words disrupted the age-old, natural cycle of musical development: a license or do not sample.1 At the heart of the case was a sample2 of a common, three-note guitar riff3 from the introduction to the George Clinton funk song Get Off Your Ass and Jam. The sampled portion was sonically altered and repeated five times in the background of the song 100 Miles and Runnin ' by the hip-hop group N.W.A. 100 Miles was also featured on the soundtrack to the film I Got the Hook Up. In this pivotal case, the Sixth Circuit Court reversed a lower court ruling that the use of the sample was de minimis4 and established a bright-line rule5 for digital sampling. The three-judge panel concluded, We do not see this as stifling creativity in any significant way.6 This article intends to show that while the court was technically correct in its assessment of the Copyright Act in relation to Sound Recordings,7 the decision exposed a flaw in the Act itself. Namely, as currently defined, Sound Recordings are fundamentally different from other categories of works8 in that they do not, and in fact cannot, meet the same minimal creativity requirement9 for copyright. The idea/expression dichotomy10 is not relevant to Sound Recordings because unlike every other category of works, they are not the result of an expression of ideas fixed in tangible form. They are strictly the result of fixation regardless of the nature, quality, and originality (or lack thereof) of the sounds embodied therein. Authorship of Sound Recordings is problematic since they are not the result of any individual's expression and thus cannot be infringed upon save by the physical duplication of a material object. Therefore in contrast to all other categories of copyrightable works, ideas cannot be freely extracted from them to be used as the building blocks for new, independent creations. The historical record shows that Sound Recordings were afforded copyright protection for a singular economic reason: to combat record piracy. Owners exercise a complete monopoly over any reproduction and derivative of Sound Recordings for the full term of copyright. While enormously effective in battling record piracy, this broad statutory stranglehold continues to impact the naturally transformative cycle of musical development in regards to sample-based music. The court was legally right: sampling requires copying.11 But the court was musically wrong: transformational copying is the heart of musical innovation and development. Creativity has been significantly stifled.A Brief History of Copyright in Sound Recordings in the United States: 1900-1970Law typically follows innovation; an axiom exemplified throughout the history of recorded music. By the turn of the twentieth century, emerging audio recording technology had already made an indelible mark on the music industry. Three major labels (Edison, Victor, and Columbia) were selling three million records per year in the United States by 1900.12 Yet federal copyright protection was not made available to producers of recordings until 1972. Why? Lawmakers in the U.S. were reluctant to define recordings, then known as phonograms, as writings. The U.S. Constitution states that 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.13 The Copyright Act of 1909 specified in Section 4, ...the works for which copyright may be secured under this Act shall include all the writings of an author14 (emphasis added). In 1908 the Supreme Court in the landmark case White-Smith Co. v. Apollo Co. concluded that because the pattern of perforations on piano rolls15 were not visually perceivable as music, the objects were not copies of musical works (i.e., not writings),16 authors could not control their use. …