08 September 2004

Just When You Thought It Was Safe to Go Back in the Blawgosphere…

I'm baaack!

I'm still catching up on e-mail, controversies, death threats, and news, so things will still be a bit slow here for the next couple of days. Unless, of course, one considers analysis of copyright stuff "fast." (Anyone who does needs to seek professional assistance—and I don't mean counselors-at-law, either.)

In Bridgeport Music XLVII—I'm only partly kidding; there really are that many reported decisions involving Bridgeport Music, Inc., even if they're not all decisions in the same case:

The claims at issue in this appeal were originally asserted in an action filed on May 4, 2001, by the related entities Bridgeport Music, Southfield Music, Westbound Records, and Nine Records, alleging nearly 500 counts against approximately 800 defendants for copyright infringement and various state law claims relating to the use of samples without permission in new rap recordings. In August 2001, the district court severed that original complaint into 476 separate actions, this being one of them, based on the allegedly infringing work and ordered that amended complaints be filed.

Bridgeport Music, Inc., et al. v. Dimension Films et al. (6th Cir. Sep. 7, 2004) (emphasis added).

Leaving aside the propriety of severing the matters, and further leaving aside the question of why this wasn't filed or treated as a class action (which, by the way, is much more favorable to plaintiffs on questions of attorney's fees), we come to the nub of the case. The defendant admitted to digitally sampling and looping a two-second guitar part. The district court noted that there wasn't a lot of precedent in the area, so it engaged in a convoluted analysis and concluded that no reasonable juror would recognize the source of the recordings without having been told. Obviously, the judge in question was not a fan of Name That Tune—and doesn't know of the obsessive-compulsive recognition skills of even moderately serious music fans. In any event, though, the Sixth Circuit reversed on the ground that the district court never should have inquired into recognizability or "de minimis infringement," because sound recordings have distinct protections from musical compositions.

Whether the Sixth Circuit was right or not—its position has at least the attraction that it sets a bright-line test, which is almost unheard-of in anything related to fair use—will no doubt be ignored. Instead, we're going to see posturing on one side from the recording industry, claiming that this is the only way to protect its valuable properties and make sure musicians get paid, and from rap/hip-hop artists on the other, claiming that this will enable the music industry to stifle all creativity. The music industry's argument founders on one teeny-tiny counterfactual: The musicians won't see a dime from any license fees collected. The work-for-hire nature of phonorecordings and abusive contract practices rampant in the industry will see to that. The court itself torpedoes the rap/hip-hop artists' position:

[First, g]et a license or do not sample. We do not see this as stifling creativity in any significant way. It must be remembered that if an artist wants to incorporate a “riff” from another work in his or her recording, he is free to duplicate the sound of that “riff” in the studio. Second, the market will control the license price and keep it within bounds. The sound recording copyright holder cannot exact a license fee greater than what it would cost the person seeking the license to just duplicate the sample in the course of making the new recording. Third, sampling is never accidental. It is not like the case of a composer who has a melody in his head, perhaps not even realizing that the reason he hears this melody is that it is the work of another which he had heard before. When you sample a sound recording you know you are taking another’s work product.

Id. (footnote omitted, emphasis added). What this perhaps points out more than anything else, without saying so, is the abonimably low standard of and respect for musicianship in contemporary popular music. But that is an argument for another time.