Today, for all of my DJ friends, I would like to talk about Sampling. First, let’s get some definition. A sound recording is a work that fixes a series of musical, spoken, or other sounds, not coupled with a motion picture or any visual works. So, speeches, poems, phone conversations, and music are included in a copyrightable sound recording. But also note that most sound recordings are a second copyright, a recorded performance of another copyrightable work. A speech on tape is a copyrightable recording of someone reading aloud, a written speech, which is copyrightable under a literary work. A CD of poems being read is a copyrightable sound recording of a copyrightable group of written poems. A song is a copyrightable sound recording of a written musical composition being performed. Any creative work that can be audibly performed and recorded, can possibly have two distinct copyrights. One is on paper, and one is a recorded performance.

Now, Sampling is the act of taking a portion, or sample, of one sound recording, and adapting it to a different sound recording. In these type of infringement cases, usually the injured party sues someone for using their protected sound recording without their permission. The unusual facts of the case are that the accused infringer typically is not arguing that they never copied and used the sample. They admit they took it without permission and used it to make a new sound recording. Instead they argue that what was taken was very small, unimportant, or unprotected.

To prove that someone has infringed or stolen you copyrighted work, you must prove that the act of using samples of your song to make their own song was unlawful and requires the infringer to compensate the first artist for their loss. This is typically called substantial similarity, but the term similarity is used so much for different meanings in these cases and elements, that I prefer to call this unlawful appropriation. But the test is to answer one question: Did they steal enough from the first artist?

The 9th circuit(West Coast) developed a test using extrinsic and intrinsic determinations. First, the extrinsic test requires the injured party to provide a list of specified items, that are the same or similar in both songs. It’s like the court wants to see every thing the second song copied from the first. Most injured parties dissect the song, and list and compare similarities. The more similarities there are, the more it looks unlawful.

Next, the intrinsic test is based on the response of the ordinary reasonable person, and courts focus on the total concept and feel of both songs.  The more the songs feel similar or have matching concepts, the more it looks unlawful.  I think it is more like a replacement test; and I like to say, If you were listening to the first song and it cut out, and the second song came on, would you be listening to a replacement or a new, different song? Combining these test usually finds that if you took enough parts, and your song seems like the original, you infringed upon the original and would be liable to the first artist.

From the 2nd circuit(New York), there is a different test using abstraction and filtration. First, the court breaks down both songs into their smallest structural parts, similar to how most artists sample music. Then the court filters out all the parts of the song that are unimportant or unprotected, like basic ideas and things that are public domain. Then the court compares only the “kernels” or “choice nugs” of creativity to determine whether the infringer actually took and used something protected.

This is running long so I think I’ll pause for today. Most of this information can be found on google scholar under this case, Batiste v. Najm, 28 F. Supp. 3d 595. This was an infringement claim from last year by a New Orlean’s band against the artist T-pain. Tomorrow I want to share the traditional test and how to determine if a sampling is fair use, So, watch that dial, and tune in tomorrow!