Legal Pad: Mashups in the Modern Copyright Era

The popularity of sampling and mashups is challenging the existing framework of copyright law and has ignited a fierce debate as to whether “transformative” or “de minimis” use of another’s work is legal under U.S. Copyright Law.

Unauthorized sampling is traditionally considered infringement: Sampling is the mining of clips from existing recordings and incorporating them in the composition of a newly recorded work.  Original recordings are protected by copyright and if sampled without permission, there is an infringement of both the sound recording and the underlying composition. As such, authorized use involves either licensing the sample from the copyright holder or bearing the consequences of legal action.  The U.S. Constitution (which authorizes copyright protection) and the Copyright Act were created well before the advent of digital sampling and, therefore, sampling is not specifically prohibited by law, only in context as stated above.

Challenging conventional copyright paradigms: Artists are proactively employing legal theories to protect themselves against legal threats, arguing that their use is protected under the copyright law, by way of “transformative” or “de minimis” use.

Transformative Use: Transformative use plays a role in “fair use,” a well-established part of traditional copyright law.  Fair use allows use of copyrighted material in a reasonable manner without a copyright owner’s consent. Some have argued that the fair use defense is a flexible doctrine to accommodate rapid technological change, such as sampling.  In determining fair use, several factors are analyzed, including: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion taken, and (4) the effect of the use upon the potential market.

Part of the fair use analysis allows artists to reuse source material if the work created is “transformative.”  Considerations as to what constitutes transformative use include whether there are new expressions in the work, alternative meanings, different aesthetics, insights and the degree to which the character of the work has changed.  Certainly the most prominent artist to emerge in the world of mashups and the transformative use defense is Girl Talk (aka Gregg Gillis).  Gillis meticulously samples dozens of recordings in creating his “new” composition.  His style is to edit and cut notes, pitch-bend samples and altogether re-contextualize the source material.  His basis for protection against infringement relies on assertion that the new work is so unique in character that it surpasses the original elements of the underlying compositions. Further, it can be argued that there is no economic impact on the source material and any alleged infringement does not affect the potential buying market of the copyrighted work (it would be hard to argue that someone who purchases a mashup featuring the bass line from The Beatles “Taxman” does so instead of purchasing Revolver).  However, there are those who do not agree with this principle, arguing that fair use does not allow an artist to substitute someone else’s creativity for their own.

De Minimis Use

The term “de minimis” is a Latin expression meaning “about minimal things” (i.e. something that is too small to be concerned with).  The theory here is that a sample taken from a recording is an independent fixation of music apart from the original work and that it is small enough to be de minimis. While the copyright code is strict and narrowly construed against certain kinds of piracy, there is no concrete number of notes, seconds or beats that constitutes infringement.  Therefore, the line between infringement and de minimis use is very gray.  For a work to be copyrightable, it must result from a series of sounds.  The implication here is that a single note or sound cannot be copyrighted and therefore sampling a single note cannot be infringement. Some argue that the smallest recognizable sample by a listener familiar with the original is the limit of what could be protected by a de minimis defense.

However, until the law changes, sampling remains illegal under the traditional theory of copyright protection.  An artist’s remedy for infringement is an injunction against further copying, actual damages and recovery of the infringer’s profits, and/or statutory damages. The Copyright Act states that any person who infringes a copyright willfully and for purposes of commercial advantage or private financial gain has committed a criminal offense.  In addition, most record contracts contain provisions whereby the artist guarantees that all of the album material is original, and agrees to reimburse the label for all of its costs and legal expenses if an infringement suit arises.

Adam Barnosky is a practicing attorney and writer specializing in entertainment law and business development. He has worked with musicians, actors, and playwrights in Boston and New York City. Contact him at [email protected].