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In Bridgeport Music v. Dimension Films, the Sixth Circuit sets forth a bright-line rule for digital sampling: “Get a license or do not sample.”

In the usual copyright infringement analysis, one of the threshhold questions is whether the copying was de minimis — so small and trifling that it’s a waste of time to fight about it. If I copy three or four notes from your song into my song, a court would probably find that, while I have infringed, my infringement is de minimis and I’ll prevail if you sue me.

The Sixth Circuit holds that in the context of digital sampling, there’s no such thing as a small or trifling sample. Why?

[E]ven when a small part of a sound recording is sampled, the part taken is something of value. No further proof of that is necessary than the fact that the producer of the record or the artist on the record intentionally sampled because it would (1) save costs, or (2) add something to the new recording, or (3) both.

When considering the effects of their new rule on creativity, the court has this to say:

We do not see this as stifling creativity in any significant way. It must be remembered that if an artist wants to incorporate a “riff” from another work in his or her recording, he is free to duplicate the sound of that “riff” in the studio. Second, the market will control the license price and keep it within bounds. The sound recording copyright holder cannot exact a license fee greater than what it would cost the person seeking the license to just duplicate the sample in the course of making the new recording. Third, sampling is never accidental. It is not like the case of a composer who has a melody in his head, perhaps not even realizing that the reason he hears this melody is that it is the work of another which he had heard before. When you sample a sound recording you know you are taking another’s work product.
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[T]o pursue further the subject of stifling creativity, many artists and record companies have sought licenses as a matter of course. Since there is no record of those instances of sampling that either go unnoticed or are ignored, one cannot come up with precise figures, but it is clear that a significant number of persons and companies have elected to go the licensing route. Also there is a large body of pre-1971 sound recordings that is not protected and is up for grabs as far as sampling is concerned.

We have thus moved from a misunderstanding of the structure of the music industry (little guys can’t afford licenses) to a material misstatement of the applicable law. You can’t just sample pre-1971 sound recordings at will; while they’re not protected by federal copyright law, they are protected by various overlapping state law provisions. The last time someone sampled freely from a pre-1971 sound recording, we all know what happened.

This is a really scary opinion written by a court relying too heavily for my comfort on law review articles published when sampling was in its infancy. The justification for the de minimis analysis does not go away when the copying is not only teeny tiny, but also intentional. The law does not concern itself with trifling infringements not because those infringements are likely to be accidental, but because it simply isn’t worth the trouble, in an efficient dispute-resolution system, to spend years in litigation over a three-note guitar arpeggio. This dispute demonstrates the inefficiency in the system; the plaintiffs went ahead with litigation over this one sample in order to establish a reputation as a tough bargainer and to try to establish a precedent useful to them in later litigation. Their prayers were answered by the Sixth Circuit, which gave them a strict bright-line rule that fails to adequately consider the structure of the music industry and of musical creativity.