Welcome back! Yesterday I began a post about music sampling, and some ways to determine if you have infringed someone’s rights by sampling. Today I wanted to follow up with the traditional test and the fair use elements.

The traditional test is also two part and focuses on quantitative and qualitative aspects of both songs. The quantitative test asks, how much of the original was taken. This is similar to the 9th circuits extrinsic test, where the person attempting to protect their copyright must dissect both songs and prove that parts or elements were taken from the original. This is called fragmented literal similarity, which means broken down pieces of the song literally match up in both songs. Most cases even loop the songs together to be played in court, like a mash-up, to show the similarities.

Next, the qualitative test asks, how important was the samples to the original song. If the sample was a main part or theme, or was a hook or predominant line in the first song, then the sampling looks more like infringement. This is similar to the 9th circuit’s intrinsic test, where courts focus on the heart or theme of the original song, and whether the second song recreates that theme.

If the court finds that the second song took enough parts from the original and that the parts sampled where very important to the first song, then the accused has infringed someone’s rights in their song and owe them compensation. If the court finds the sample to be small and unimportant, then the sample is not infringing. Beastie Boys once got sued for using three notes from a flute soloist, but the court found that it was a de minimus sample, which means it was far too small to infringe.

Now, I would like to talk about fair use. Fair use limits people’s ability to claim infringement, by permitting certain use of copyrighted works without permission. One way to get to fair use, is by parody, or to imitate an artist with humor and exaggeration for comic effect. However, parody requires the second creator to refer back to the original work as much as possible, like to intentionally infringe as many parts of the original as you can. Parody should be based on the first song, otherwise the second artist is just making a funny substitute, and won’t be protected. Some artist struggle with the parody protection, and others like SNL and weird Al make millions  doing it.

The other way to fair use is based on what samples were used and how were they used in the second work, similar to the unlawful appropriation tests we talked about before. However, this test also asks about the economics and income of an original song having a infringing look-a-like. Fair use has four elements, that each have their own sliding scale. Each element has a comparison between two opposing characteristics, one leaning towards infringement and one leaning away. The court will use all of these characteristics together to determine if the second work is fair use or infringing.

The first element is the purpose and character of the use, which means how did the accused infringer use the samples. The sliding scale is between commercial use and non-profit use. Here, the court wants to know why the artist created a song that infringes. If it is for non-profit, than it looks more like fair use, because the infringer wasn’t trying to make money. If the infringer wasn’t trying to make money,what money did the original creator lose? The courts use this element to protect things like education and the promotion of sciences and art, most of which would be considered non-profit ventures.

The second element is the nature of the original work, or the value of the samples used. (Just to clarify, the first element focused on the second song that used the samples, this element focuses on the first song and the value of the samples taken.) The sliding scale is between whether the work was original and whether the work was public domain or unprotectable. This element makes sure the samples were protectable, and that the samples had value to the original artist. In literature, this would be the difference between fiction and non-fiction. Fiction would be your own creative baby, and your idea would have lots of value to yourself. Non-fiction would be like a historical event, that anyone could talk about without needing permission.

The third element focuses on the amount taken from the first song. This is like the different tests I have talked about before, where the court wants to see how much was taken and how important that sample was to the original song. The more that is sampled, and the more important those samples are to the original song, the more it looks like infringement.

The last element is the second song’s effect on the potential market of the first song. This is like my replacement test, I mentioned in the 9th circuits extrinsic/intrinsic tests. The sliding scale is between whether the second song was a substitution to the first or something completely different. The courts look to see how the first song was marketed and determine if the second song was trying to enter the same market. Different markets look more like fair use, whereas similar markets look like infringement. I always say, you can make your own money, but you can’t make someone else’s money.

Warning: some courts have found sampling to be illegal…always. In a 6th circuit case(New jersey), a judge compared intellectual property to physical property and said that sampling is like slowly taking an inch or two from my neighbors land and keeping it for myself. I have to think this guy doesn’t listen to new music very much, or just assume that he is that type of person. I bet he routes for the up-tight parents when watching Footloose.

In wrapping up, sampling is possible! However, not understanding what and how you are sampling can get you in trouble. A little paranoia goes a long way in avoiding lawsuits, but keep your wits, DJs, and the beat will go on.