Ralph B. Guy, Jr.

“ Get 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. [11] 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. ”

“ When one considers that he has hundreds of other cases all involving different samples from different songs, the value of a principled bright-line rule becomes apparent. We would want to emphasize, however, that considerations of judicial economy are not what drives this opinion. If any consideration of economy is involved it is that of the music industry. ”

“ On August 14, 2002, the district court entered its order overruling plaintiffs’ objections, denying plaintiffs’ motion to amend, and denying plaintiffs’ further motion to certify the issue for appeal.
B. Analysis Bridgeport maintains the district court abused its discretion by denying leave to amend on the grounds of unjustified delay and in the absence of a finding of prejudice to the defendant. It is true that, ordinarily, delay alone will not justify the denial of leave to amend the complaint. ”

“ Because of the court’s limited technological knowledge in this specialized field, our opinion is limited to an instance of digital sampling of a sound recording protected by a valid copyright. If by analogy it is possible to extend our analysis to other forms of sampling, we leave it to others to do so.
6. Advances in technology [7] coupled with the advent of the popularity of hip hop or rap music have made instances of digital sampling extremely common and have spawned a plethora of copyright disputes and litigation. ”

“ The music industry, as well as the courts, are best served if something approximating a bright-line test can be established. Not necessarily a “one size fits all” test, but one that, at least, adds clarity to what constitutes actionable infringement with regard to the digital sampling of copyrighted sound recordings.
B. Analysis We do not set forth the arguments made by Westbound since our analysis differs somewhat from that offered by the plaintiff. Our analysis begins and largely ends with the applicable statute. ”

“ For the sound recording copyright holder, it is not the “song” but the sounds that are fixed in the medium of his choice. When those sounds are sampled they are taken directly from that fixed medium. It is a physical taking rather than an intellectual one.
This case also illustrates the kind of mental, musicological, and technological gymnastics that would have to be employed if one were to adopt a de minimis or substantial similarity analysis. The district judge did an excellent job of navigating these troubled waters, but not without dint of great effort. ”

“ Bridgeport and Westbound claim to own the musical composition and sound recording copyrights in “Get Off Your Ass and Jam” by George Clinton, Jr. and the Funkadelics. We assume, as did the district court, that plaintiffs would be able to establish ownership in the copyrights they claim. There seems to be no dispute either that “Get Off” was digitally sampled or that the recording “100 Miles” was included on the sound track of I Got the Hook Up. Defendant No Limit Films, in conjunction with Priority Records, released the movie to theaters on May 27, 1998. ”

“ Second, to pursue further the subject of stifling creativity, many artists and record companies have sought licenses as a matter of course. [19] Since there is no record of those instances of sampling that either go unnoticed or are ignored, one cannot come up with precise figures, but it is clear that a significant number of persons and companies have elected to go the licensing route. Also there is a large body of pre-1972 sound recordings that is not subject to federal copyright protection. ”

“ Undue delay in filing, lack of notice to the opposing party, bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing party, and futility of amendment are all factors which may affect the decision. Delay by itself is not sufficient reason to deny a motion to amend. Notice and substantial prejudice to the opposing party are critical factors in determining whether an amendment should be granted. ”

“ First, the cost barrier to enter into the audio production arena is low due to the influx of affordable digital recording equipment. The combination of a microphone, digital audio equipment, consumer audio equipment and an album or compact disc collection are the only tools needed to produce commercial rap music. ”

“ These companies are similar to publisher clearinghouses in that they are authorized by member copyright owners to clear samples for use on albums according to an agreed upon fee structure. In addition, record companies and most music publishers have instituted certain licensing policies as more and more artists routinely seek clearance for their samples with the hope of avoiding litigation.” A. Dean Johnson, Music Copyrights: The Need for an Appropriate Fair Use Analysis in Digital Sampling Infringement Suits, 21 FLA. ST. U. L. REV. 135, 163 (1993) (footnote omitted) . ”

“ Samplers should apply for the appropriate licenses, respect the rights of copyright holders, and be respected in turn as equal creators, Responsibility for obtaining clearance should fall to either the artist, the label, or both. Samplers realize that in the litigious environment of the United States, there is nothing to be gained and much money potentially to be lost by being a renegade. ”

“ Provided, That copies or phonorecords of said programs are not commercially distributed by or through public broadcasting entities to the general public.
Before discussing what we believe to be the import of the above quoted provisions of the statute, a little history is necessary. The copyright laws attempt to strike a balance between protecting original works and stifling further creativity. The provisions, for example, for compulsory licensing make it possible for “creators” to enjoy the fruits of their creations, but not to fence them off from the world at large. ”

“ On the other hand, many of the hip hop artists may view this rule as stifling creativity. The record companies and performing artists are not all of one mind, however, since in many instances, today’s sampler is tomorrow’s samplee. ”

“ The plaintiffs’ objections are overruled. The interest of justice in this case requires that plaintiffs show good cause why the Court should allow amendment of their complaint to add a claim and parties after the Court’s deadline for such amendments, which the plaintiffs have failed to do. ”

“ They did not voluntarily dismiss their claims, however, as it was only in response to defendant’s dispositive motions that they acquiesced in dismissal. Moreover, the inclusion of Southfield and Nine Records in the amended complaint in this case was less “inadvertent” than a reflection of the plaintiffs’ failure to discriminate between defendants and claims. No Limit Films is a prevailing defendant as judgment was entered in its favor on all claims. ”

“ ABC Communications, Inc., 264 F.3d 622, 639 (6th Cir. 2001) (reversing award to prevailing defendant) . A district court abuses its discretion when it relies on clearly erroneous factual findings, improperly applies the law, or uses an erroneous legal standard. Adcock-Ladd v. Sec’y of Treasury, 227 F.3d 343, 349 (6th Cir. 2000) .
The discretion to award attorney fees under § 505 is to be exercised in an evenhanded manner with respect to prevailing plaintiffs and prevailing defendants, and in a manner consistent with the primary purposes of the Copyright Act. ”

“ Bridgeport and Westbound appealed. The facts relevant to the earlier denial of Bridgeport’s motion to amend the complaint will be discussed below. No Limit Films filed a post-judgment motion for attorney fees and costs, which the district court granted for the reasons set forth in its memorandum opinion and order of April 24, 2003. Bridgeport, Southfield Music, and Nine Records appealed from that award. ”

“ It has been suggested that the strong protection implied by the foregoing provisions could be mitigated by a judicially applied standard which permits some degree of de minimis copying or copying where the sampled portion of the resulting work is not substantially similar to the copied work. ”

“ Profile Records, Inc., 42 U.S.P.Q.2d 1398 (S.D.N.Y. 1987) (plaintiff did not prove ownership of valid copyright or actual copying) ; Williams v. Broadus, 60 U.S.P.Q.2d 1051 (S.D.N.Y. 2001) ; Newton v. Diamond, 349 F.3d 591 (9th Cir. 2003) , amended 388 F.3d 1189 (9th Cir. 2004) , petition for cert. filed, 73 U.S.L.W. 3557 (U.S. Mar. 10, 2005) (No. 04-1219) . We note that in Newton, the matter at issue was infringement of the composition copyright. The alleged infringer had secured a license for use of the sound recording. ”