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Old 05-08-2012, 05:40 PM
MarcusCarab MarcusCarab is offline
aka Leigh Beadon
 
Join Date: May 2012
Location: Toronto, Ontario
Posts: 2
Default Re: Beastie Boys sued over ‘Licensed to Ill’ and ‘Paul’s Boutique’ samples

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That's a decent introduction to some of the issues, but I have a major bone to pick with them on the law. They write that courts have "more or less entirely [tossed] out the concepts of fair use, transformative work and de minimis copying that should protect samplers in many cases."

This is only true with respect to de minimis copying (and even there, only in one circuit), but not at all true with respect to fair use. Fair use's roots in the common law are as old as copyright law itself. There is no particular type of work (music or otherwise) that is outside of the scope of fair use in and of itself and I don't know of a single copyright case that would even suggest it.
Hi Johnny - I'm the author of that piece. You definitely have a point here. I was a little annoyed when I read the news and wrote the post, so I was quite forceful in my language - but I still do mean something when I say the courts wiped out fair use in sampling

I'm referring to the bright-line "get a license or don't sample" ruling from Bridgeport, which clearly struck down de minimis, but was also issued without any analysis of the fair use issue (mainly for procedural reasons). To quote from Jason Mazzone's book Copyfraud:

Quote:
An especially troubling consequence of the Bridgeport case is that its bright-line rule—“Get a license or do not sample”—comes without any analysis of fair use. Because the lower court applied the de minimis standard and found no infringement, it did not consider whether the fair use defense applied. On appeal, the Sixth Circuit panel declined to decide whether the sample at issue was protected by fair use because it wanted the lower court to consider that issue first upon remand of the case. However, after the Sixth Circuit’s decision, the dispute settled. There was, therefore, never a fair use ruling in the case. It is unfortunate that a seemingly decisive decision by a federal appellate court on the lawfulness of sampling comes without any consideration of whether fair use protects sampling.

Here, a difference between the doctrine of de minimis copying and fair use matters a great deal. The doctrine of de minimis copying is a judge-made rule. In the final analysis, it is the prerogative of courts to tailor the doctrine as they see fit. Fair use, however, is a statutory provision that binds judges. It limits, without exception, all the exclusive rights of copyright owners. Some copying from copyrighted recordings is, necessarily, fair use. Because of the procedural history of Bridgeport, however, we never learn if fair use protects the defendants’ use of the sample from Funkadelic’s tune. The unsurprising result is that copyright owners (and samplers themselves) treat Bridgeport as standing for the proposition that all sampling is infringement. Even though the Copyright Act protects fair use of all species of copyrighted works, a legal decision on the question of de minimis copying enables copyright owners to assert that there is no fair use when it comes to sound recordings.

Subsequent case law has also not dealt squarely with the fair use issue. Although the Sixth Circuit has decided a slew of additional disputes involving litigation by Bridgeport Music, it has never decided whether sampling is protected by fair use. Another federal court could disagree with the Sixth Circuit and find that the de minimis doctrine applies to sampling. A different court could also find that sampling is protected by fair use. But Bridgeport has cast a wide shadow, and rather than go before a (different) court to test the legality of sampling, producers have instead opted to obtain sampling licenses. While courts have held that fair use applies to compositions, courts have provided no guidance on when sampling from an existing sound recording constitutes fair use. Says Philo T. Farnsworth, the owner of a label that releases sampled recordings, “We’d love to see a court case or legislation recognize transformative sampling as fair use. As of this moment it seems to exist in a very gray area.”
The industry seems to have shaped itself around Bridgeport, and though most sampling on free mixtapes goes ignored (though 50 Cent was recently sued over one) all commercial stuff gets licensed. Thankfully, as you say, and as Mazzone says, there are still plenty of ways that fair use could be re-asserted in the courts - but at the moment, thanks to the far-reaching implications of Bridgeport, it is effectively toothless when it comes to sampling.
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