Disclaimer: This is not legal advice and while I may try to generalize areas of the law, I am still a law student and am learning so I may make mistakes. Please do research of your own if you believe you may have a claim for copyright infringement.
Have you ever wondered where the line is drawn for music sampling and copyright infringement in the music industry? Why is Drake sampling Lauryn Hill sampling the Wu Tang Clan sampling Gladys Knight and the Pips not causing an uproar? It can’t just be because Nice for What is a summer hit, can it? How can John Fogerty get sued for copyright infringement of a John Fogerty song?
Of course it’s a little messy, but with my most recent legal writing case being about this very topic, I thought I’d take the opportunity to dive in a little deeper because it’s just genuinely interesting.
It’s pretty easy for someone to claim copyright infringement. It requires a valid copyright and proof that one of your copyright rights were infringed. The purpose of a copyright is to give the creator exclusive rights to the work. That means if someone else wants to use it or reproduce it, etc. they need permission.
So the original creator has brought the case to court, is that it? Do the alleged infringers just lose? Why wouldn’t they get permission?
All hope is not lost for the alleged infringers quite yet. If they can prove that their use was fair use, they’ve asserted an affirmative defense. Think of an affirmative defense as: “Yes, I infringed on your copyright, but I had permission to under fair use.” You’re affirming that you’ve done the thing, but you’re making it a defense, hence affirmative defense.
Fair Use is codified under 17 U.S. Code §107. Courts use four factors to determine whether a work infringed:
- Purpose and Character of the Work: Is your use of the sample transformative? If you can prove transformation, courts look favorably upon a sample being used for fair use. A mere reproduction of a sample may be viewed as the same character of the original song.
- Nature of the Work: Does your new song evoke the same essence as the original? In 2018, the Ninth District Court of Appeals ruled on whether Robin Thicke’s Blurred Lines infringed on Marvin Gaye’s Got to Give It Up. The moods of the two songs feel remarkably similar, yet how much was actually copied? The court found Pharell and Robin Thicke to be guilty of copyright infringement as they claimed the song as inspiration.
- Amount and Substantially of the Portion Used: How much of the song are you using to sample? Just one instrument? The entire beat? The more that’s used, the less justifiable. Some courts take a “not more than necessary” approach, where using only what’s needed is preferable.
- The Market Effect: Does your copyrighted sample harm the market of the original piece? Would your work be a completely separate audience?
Since these are factors, they are all weighed in relation to each other to determine if infringement has occurred. Nothing is cut and dry and everything is done on a case by case basis. That being said, to avoid infringement licensing a sample is always preferable.