Fair Use : Factor Three
(3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole;
This third factor is probably the most important of the enumerated fair use factors in a digital sampling analysis. The statute provides that the court consider "the amount and substantiality of the portion used in relation to the copyrighted work as a whole." I believe that along with the transformative use, this is the threshold question in a sampling analysis. Samples may be so de minimis that they do not constitute infringement. In essence, the de minimis analysis states that where the portion of the copyrighted work sampled is so small or trivial its use would neither diminish the original's value nor displace the original's market.
It
is under this exception that most samplists make their strongest case
for fair use. Fragmentary appropriation of numerous and varied sources
of audio formed in a collage simply cannot displace the original's place
in the market.
Courts commonly employ a quantitative use analysis when the appropriation is not obviously de minimis. The quantitative analysis compares the percentage of the copyrighted work appropriated by the user to the copyrighted work as a whole. The percentage is never dispositive and ultimately clouds the copyright law. There is no bright-line rule, like the infamous musician lore of "six notes or more means theft". This is an urban myth. In most cases of audio collage, the sample may only sample two seconds of the original work, but looped consistently for minutes throughout the new work. Other times, in order to successfully parody or comment upon the original work, more appropriation is needed. There is no way to determine what is an acceptable legal quantity under the present law. This ambiguity and the fear of prosecution serve to hinder the artistic use of samples.
It is important to note that the Recording Industry Association of America has used the Copyright Act to combat downloading, piracy, bootlegging, and counterfeiting of records. I believe the Copyright Act should apply to these practices only and not fragmentary appropriation. But that is an idealistic fantasy. Court's should recognize, however, that the Copyright Act is better used to dash pure theft by forgers as opposed to appropriation by artists.
In effect, society does not receive the benefit of samplist compositions because samplists do not know how much they can use. Nobody has ever decided that definitively because each case is different. Again, in Newton v. Diamond, where the issue of recording infringement was nullified by license, the court found that the 3 notes sampled were de minimis in terms of composition infringement.
However,
in Bridgeport Music v. Dimension
Films the 6th Circuit held that "[E]ven when a small part
of a sound recording is sampled, the part taken is something of value.
No further proof of that is necessary than the fact that the producer
of the record or the artist on the record intentionally sampled because
it would (1) save costs, or (2) add something to the new recording, or
(3) both...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…
[T]o pursue further the subject of stifling creativity, many artists and
record companies have sought licenses as a matter of course. 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-1971 sound recordings
that is not protected and is up for grabs as far as sampling is concerned."
This last contention of the court regarding pre-1971 recordings is actually incorrect as a matter of law and fact. There are no known recordings in the public domain. Speaking of the public domain, it should also be noted that Courts will not uphold copyright on modified public domain material if the changes are deemed to be de minimis.
Another example, in the motion picture "Seven", several copyrighted photographs appeared in the film, prompting the copyright owner of the photographs to sue the producer of the movie. The court held that the photos "appear fleetingly and are obscured, severely out of focus, and virtually unidentifiable." The court excused the use of the photographs as de minimis and a fair use analysis was not required. Sandoval v. New Line Cinema Corp., 147 F.3d 215 (2d Cir. 1998).
As with fair use, there is no bright line test for determining a de minimis use. In another case, it was determined that the use of a copyrighted poster that appeared in the background of the TV show, "Roc" for 27 seconds was not de minimis. What's the difference between "Roc" and "Seven"? The court stated that the poster was clearly visible and recognizable with sufficient observable detail for the "average lay observer " to view the artist's imagery and colorful style. Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70 (2d Cir. 1997).
and (4) The effect of the use upon the potential market for or value of
the copyrighted work.
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Footnotes:
TV
and Film:
The modern samplist frequently samples dialogue from film and television
programs. In all of my legal research, I could not find one documented
case where the copyright owner of a film or television program has sued
a musician for copyright infringement for lifting a dialogue sample. Dialogue
in musical works seems to be perceived by both appropriator and copyright
owner as being so de minimis, the use is rendered unactionable. Example:
Dimitri from Paris, "Sacre Bleu" (Atlantic 1998) contains dialogue from
the film "Breakfast at Tiffany's." "Une Very Stylish Fille", a single
from that album, was licensed by Volvo for a television commercial but
the original dialogue was cut from the commercial. The dialogue on the
album version of the song depicted Audrey Hepburn saying, "I am a very
stylish girl", and George Peppard replying, "I must say I'm amazed." The
version of the song that appeared in the commercial contained the same
dialogue, but it was re-recorded by other actors. Other examples include
The Chemical Brothers, "Brother's Gonna Work it Out" (Astralwerks 1998)
which contains dialogue from the film "The Mack."
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Related Links :
Suffolk
Law School: Does
looping samples defeat the de minimis defense?
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