After this video, you'll be able to discuss some of the issues related to sampling in copyright law, how some of this is in flux, and where this could end up. I want to begin by talking about two cases, one was in district court in Tennessee, the Middle District of Tennessee. It would involve the music of George Clinton. Sound recording of his called, Get Off Your Ass and Jam, and it's well-known recording. The group NWA have a song called 100 Miles and Runnin' and NWA were sued by George Clinton. That song, that copyright sued NWA. When people hear the music, they hear the sound recording Get Off Your Ass and Jam and they hear 100 Miles and Runnin', no one has ever been able to hear, oh, I hear that sample from George Clinton. It's this part of George Clinton and it's in this part of NWA. No one has been able to hear that but there is a sample. NWA did take something from George Clinton and it gets significant because copyright is defined as copyright protection subsistent original works of authorship fixed. We've talked about that, but also from which the sounds can be perceived, reproduced or otherwise communicated. So, if they couldn't be perceived, was it really copyright infringement? You can say a fair use of it. Well, it's so minimal you can't even hear it. So, how could it be infringement? I'll cut to the chase tell you what it was. It's the opening of George Clinton's Get Off Your Ass and Jam, is this little three note figure in a guitar squealing, it sounds almost like a siren. It's loud and frenzied and blurs together. So, it's the top note of the scale, the flat seven, and the five. It's those three notes, repeated over and over and it goes away, it only lasts for a few seconds and you don't hear from it again. Now, go up to NWA's 100 Miles and Runnin'. It's in a film called I Got the Hook-Up, it's near the end of the movie. So, not only can you not hear it in the sound recording, throw that sound recording into a movie with everything else going on and no one ever detected it. It had to be done by algorithm but they take that guitar solo and they changed it a bunch and it made very, very quiet. It's introduce about 48 seconds into the rap and it's in the background and it's panned. It's really interesting goes from this speaker to that speaker a few times, but you really need to have everything quiet, you have to listen incredibly quietly, and understand how much they transformed it. So, in terms of a fair use, you could say what they took was not original those three notes in terms of a composition, that's unoriginal. They took that, the sound recording, they took it and they stuck in their song but they changed it a lot. It can't even be heard so of course it's not going to affect the market value. A fair use analysis, I think would side with NWA. In fact what happened in the district court in Tennessee was Judge Higgins agreed that NWA had not infringed the recording of George Clinton. He said, Judge Higgins said, "The sample does not rise to the level of a legally cognizable appropriation." He said, "Even fans of George Clinton's music couldn't hear this." And he ruled it was not copyright infringement. So, what happened was that the losing side, if you lose at the district court, you can apply in appeal say, "Please listen to our appeal." You say that to the Circuit Court. The Circuit Court said, "Okay, we'll listen to it." The Circuit Court reversed the decision. They end up saying, "Well, it's a sample. If you want to sample get a license." Which is really a radically different interpretation of the law. The law is supposed to provide for fair use. Like they took it, it's hardly detectable, doesn't affect the market, they again transformed a value to it. A lot of the music world and the Copyright Law world was really shocked by this which many of us considered, I for one, considered a terrible decision of the Sixth Circuit. So, in the Sixth Circuit that means a circuit court, we have the Supreme Court then Circuit, then district. What the circuit says applies to the whole district, all the states there in that area. Now, go to California, a really similar case, really similar set of facts. Salsoul Orchestra has a song called Love Break. Let's take a love break. You hear a horn hit. They say let's take a love break. So, you hit one horn hit after love break then you hear two horn hits after they say it again. A horn hit I mean, tap, tap. So, it's a very brief note. It's very clear, you can hear that it's chord. You can hear some horns are playing it Sachs trumpet and you can hear that chord. You heard it once, you heard it twice, you heard it a third time. Unlike the George Clinton, where you couldn't hear it, you needed a microscopic ears, you had to study it quietly and get lucky to hear it, this you hear it clearly. So, that was Salsoul Orchestra song Love Break. Madonna came along, wrote a song has a song she recorded called Vogue and in Vogue, she takes that horn hit, the exact horn hit from Love Break, and place at once. It's softer but there it is. It's got some sound filtering going on, then place it two more times like what Salsoul Orchestra did. So, again she did not ask permission and she took Love Break, those three horn hits. She took them and stack them in her song. You can very clearly here okay, there it is, one, two, three, one, two, three little different rhythm but you hear what they are. So, in the district court, the judge in the court ruled that that's not copyright infringement. Madonna copied the three horn hits, sampled them, took the composition of the horn hits and the sound recording of that horn hit. She took the three stuck in her song, everyone heard it, and the court sided with her. She denies permission. They said that it was not original that the horn hit, the little as a composition it's just one brief attack. That's not copyrightable even doing it three times and even the sound recording which has more copyright value because there's more in it than just the composition is the sound of it that the court made it very clear that the composition is not copyrightable and the sound recording is not. They felt awful. They said but look at the Sixth Circuit in Tennessee. They overturned it, they said, "If you want a sample, get a license." Now the Salsoul Orchestra said they're going to appeal to the Ninth Circuit and they are using the reasoning from that other circuit saying, " Hey, she took it. We know she did, get a license." The Ninth Circuit didn't care. They said, "In this circuit, we still think that's fair use. That it's not original expression that was taken." So, here we have a really interesting issue. In Tennessee, in the Sixth Circuit it starts natural as a district court, the Circuit Court happens to be in Cincinnati that's not that important but there it is. Cincinnati said this and in California they came up with the opposite conclusion. In Cincinnati they said, "There's no such thing as fair use when it applies to samples. If you want to sample anything no matter the length, you get a license." California said, "Let's use common sense. Let's consider this fair use. You don't need a license." So, that's a really interesting dilemma we're in right now. You can really cannot jump ahead and say, "If you want to sample and you have a more liberal interpretation of fair use, then you should be recording it in California." Because that Ninth Circuit ruling applies to the Ninth Circuit which is California, Oregon, Washington, Nevada, Montana, Idaho, Arizona, Hawaii, Alaska, and Guam. It's a big, big thing. So, if you want to sample that's where you're more likely to sample as a creative person. You should be sampling in the West and if you want to sue a sampler, you sue them in Nashville because the Sixth Circuit ruling will rule over Michigan, Ohio, Kentucky, and Tennessee. So, that's a strange dilemma we have right now it's called the circuit split. Same set of facts, very close to the same set of facts with opposite conclusions and when circuit split the next level is the Supreme Court. This could end up in the Supreme Court.
