This past September, a three-judge panel of the 6th Circuit Court of Appeals in Cincinnati ruled that recording artists must clear each and every sample they use in their productions--even if that sample is minor or unrecognizable. What prompted this ruling was an appeal by Bridgeport Music and Westbound Records of an earlier lower court ruling on a lawsuit brought by the two companies against rapper Master P’s film company, No Limit Films, and its use of a sample owned by the two companies.

In 1998, No Limit Films released I Got the Hook-Up which featured a song by NWA called “100 Miles and Runnin’”. This song contained a 3-note guitar riff  approximately 2 seconds in length from a Funkadelic tune written by George Clinton called “Get Off Your Ass and Jam” that was sampled and looped by NWA into a 16 bar pattern. Bridgeport Music, the publisher of the tune, and Westbound Records, which owned the sound recording of the tune, sued No Limit Films for copyright infringement. No Limit successfully argued in court that, even though there was an acknowledgement that the song was indeed comprised of the Funkadelic sample, the new usage of the song rendered its identity unrecognizable. The new version, No Limit’s attorney argued, had the guitar riff pitched down in tone and extended beyond its brief appearance in the original recording. The new recording therefore was not an infringement on the Clinton work. The court agreed and ruled in No Limit’s favor, saying that the new song “did not rise to the level of legally recognizable appropriation”.  Bridgeport and Westbound appealed, prompting the federal appeals court’s ruling.

In their ruling, the appeals court said that NWA had freely acknowledged they sampled Clinton’s work and this rendered moot whether or not copying of the song was done. What is at issue, the court stated, was rather the small portion of the Clinton song enjoyed legal copyright protection as did the entire song. No Limit’s lawyers had argued to the lower court that the small section did not have legal protection since it was unrecognizable from the original, a distinction which has allowed many a rapper to legally use someone else’s work in their musical productions.

The appeals court ruled that since it is illegal to pirate an entire composition, it is therefore logical to assume that pirating even a portion of the song is illegal as well--no matter how unrecognizable the lifted portion may be. Those wishing to sample someone else’s work need to get legal permission to do so, or face the consequences of their actions if they do not, the court ruled.

Through their ruling, the appeals court has eliminated such a distinction, thereby giving protection to any and ALL parts of a song, no matter how small, unrecognizable, or altered they may have become.

This ruling is expected to have far-reaching implications on the hundreds of lawsuits filed by music publishers and record labels against the many composers, producers, and artists who have used portions of their compositions without permission. This ruling has the added impact of encouraging the filing of similar lawsuits all around the country, and could prove financially devastating to those artists--especially rappers--who have built a career on sampling music for their productions.

The penalties for copyright infringement range from compensating the copyright holder for the amount of money that should have been paid if permission had been sought and granted; punitive damages from $750 to $150,000 PER incident; an injunction against further selling or distributing the work, and if the work is already publicly available, forcing the infringer to physically remove the work from store shelves nationwide; destroying the material in which the infringed work is present; band jail time.

Those seeking to incorporate samples of copyrighted material in their work would be well-advised to seek out the many clearance firms which have been founded in recent years to address such issues. These companies will, for a fee, negotiate rates with music publishers, record labels, and other copyright holders to allow their compositions to be sampled. Unlike doing a re-make or “cover” of a song which is covered under Copyright law as to how much a copyright holder can charge a user to do a production of his tune, sampling rates are entirely negotiable, with the market dictating what is or is not an acceptable price. This simply means that a copyright holder will try to get as much money for his composition as possible, and is not obligated to anyone to sell for less than expected.

If your production contains or will contain a sample, it is advisable to begin negotiations for their inclusion on your CD as EARLY as possible since the price you may have to pay may be more than you are willing to pay--or can afford. It would be a crying shame to realize this AFTER you have recorded, mixed, master, and pressed up several thousand copies of your CD.