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A recent ruling that was meant to bring clarity to the copyright status of digital “sampling” already has some segments of the music industry warning of disaster. In a case of first impression, a panel of the 6th U.S. Circuit Court of Appeals ruled on Sept. 7 that a musician who copies any part — even as little as two seconds — of an existing recording without permission of the person who owns the copyright to the recording is in violation of the law. Bridgeport Music Inc. v. Dimension Films, No. 02-6521. While earlier decisions have addressed the copyright implications of sampling, they dealt with copyrights to an underlying song (often held by a songwriter or music publisher), not copyrights to the embodiment of a song in a particular recording (often held by a performer or recording company), according to attorney Robert H. Kohn. Kohn, the CEO of comedy recording company Laugh.com, is co-author with his father Al Kohn of the treatise “Kohn on Music Licensing,” a work quoted at length by the 6th Circuit panel. DEATH KNELL FOR HIP-HOP? The panel said that its “bright-line rule” was dictated by federal statute and predicted that it would not “stifl[e] creativity in any significant way” and would reduce disputes over sampling. Others see it differently. “The decision will kill off the art form of hip-hop,” asserted Lawrence E. Feldman of Jenkintown, Pa.’s Feldman & Associates, who represents hip-hop musician Jazzy Jeff and other recording artists. “[T]he panel’s ‘solution’ will cause difficulties far more substantial than any problem it is purportedly addressing,” wrote the Recording Industry Association of America in a Sept. 21 amicus brief filed on its behalf by Paul M. Smith of the Washington office of Jenner & Block. The brief, which asks the 6th Circuit to reconsider the issue en banc, warns of a torrent of lawsuits: “For more than a decade, the music industry has conformed its conduct to the existing rules-obtaining licenses for sampling when appropriate, and relying on de minimus and fair use principles if and where they apply. The panel’s abrupt and dramatic change in the law … creates retroactive liability for anyone who may have properly relied on the previously existing rules.” While the industry may have long assumed that minor or “de minimus” sampling was acceptable, it is debatable whether there were any “previously existing rules” to that effect. What is clear is that de minimus borrowing does not violate the copyright to an underlying song. But it has been an open question whether the same is true of sound recording copyrights, according to Kohn. Kohn said that record companies have probably been reluctant to litigate the issue because they realize that their own artists make extensive use of sampling. Kohn said there are good reasons for the 6th Circuit’s interpretation, both in the text of the Copyright Act and in considerations of policy. The sound recording copyright is so weak that it would be a virtual nullity without control over de minimus sampling, he said. To illustrate its weakness, he noted that the holder of such a copyright can’t prevent a copycat from making an identical-sounding recording as long as it is a re-creation and not a direct copy. The RIAA, on the other hand, argued that another copyright expert supported its position. Its brief quoted David Nimmer, author of Nimmer on Copyright, as saying that the “practice of digitally sampling prior music to use in a new composition should not be subject to any special analysis.” Nimmer, of counsel at Los Angeles’ Irell & Manella, declined to comment. Richard S. Busch of Nashville, Tenn.’s King & Ballow dismissed the warnings of disaster, noting that “each of the major record companies have clearance departments” and that licensing has become common. Busch represents plaintiff Westbound Records Inc., which claimed that defendant No Limit Films violated its sound recording copyright in the version of Get Off Your Ass and Jam recorded by George Clinton and the Funkadelics. A two-second guitar riff from that song was used on a No Limit Films soundtrack. No Limit’s attorney, Robert L. Sullivan of the Nashville office of Loeb & Loeb, filed a petition for rehearing on Sept. 20. He declined to comment.

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