‘The case of TV Independent News Service v. Yashraj Films, concerned the use of a musical and sound recording sample of three seconds by a cable network channel. The court cited the Bridgeport case in holding that even if the sample was of a short duration it consisted of a direct lifting of a sound recording and also held the defendant guilty of infringement of the musical copyright. Accepting an appeal the di minimis argument was upheld, the court stated that the Bridgeport case gave no reason to eliminate the di minimis principle in totality as this would encourage forms of innovation and protect cases where the violations were “trivial” in nature. The court also laid down a set of principles in accordance with applying the principle. The scope of the damage was to be considered, the adjudication charges that would accrue, the effect the action would have on third parties involved, and the extent of the harm done. The court using the same held that the same constituted a trivial defence and hence the di minimis principle applied.’
Sampling sound recordings without prior permission from the artist and record label may be seen as a violation of copyright law however a defined appropriation for the precise amount required to bring a copying claim is uncertain and continues to develop from case to case and jurisdiction to jurisdiction. Hence it is most common for cases to end at a cease –and- desist, where credit is given and royalties are shared between the artists.
Stephen R. Wilson, Music Sampling Lawsuits: Does Looping Music Samples Defeat the De Minimis Defense? 2002, 1 J. High Tech. L. 179, Copyright (c) 2002 Journal of High Technology Law
Conclusion
On one hand we have economic motives of the copyright holder of either the musical or sound recording rights. Allowing unlimited access would mean the holder of the copyright loses out on exercising his control over the same. On the other hand the sampling artist’s creative motives, to borrow from the past as in all great art forms and provide a unique spin of the same.
The issue of approving a license for each and every sound recording is not practical as new artists may find it difficult to get these grants approved and hence will block any commercial applicability of the track until the same is cleared. This would result in artists labouring over their music and not being allowed to enjoy the fruit of their success, which is an integral part of the copyright regime.
Jennifer R.R, All Mixed Up: Brigeport Music v. Dimension Films and De Minimis Digital Sampling; Mueller,. 81 Ind. L.J. 437 (2006)
The Bridgeport case sets a poor precedent as even if the sound recording was directly sampled, it was not an integral or noticeable part of the song as it was highly enveloped in various other frequencies and a reasonable man could not decipher a “substantial similarity” between both the tracks. The di minimis policy should have applied to the case. In circumstances where only a couple of bars of music are being borrowed, a license should not be retrieved as this is a painful exercise for the artists consuming both time and money. However from a policy point of view, it is compulsory to credit the artist and disclose in the tracks discription if any samples, either, sound recording or musical work are used. This is why most contracts between record labels and artists require a full disclosure of any samples used in the work. There are countless royality free samples which can be used without being declared, it is also common practice that grooves, percussive or drum eements cannot enjoy the rights confired under musical copyright works, as the criterion for the same is a change in pitch and does not consider rythym or time signatures to be of uniquie significance to avail the rights. However lifting from the sound recording straight could be considered an infringement of the mechanical rights.
