Abstract

Excerpted From: Mariah Johnson, Beyond an “Average Audience”: Critical Race IP as a Justification for De Minimis Music Samples, 112 Georgetown Law Journal Online 1 (2024) (144 Footnotes) (Full Document)

In their song “Talkin' All That Jazz,” hip-hop group Stetsasonic issued the following response to those who think digital music sampling, or incorporating a section of a preexisting sound recording into a new song, is not an art form:

A sample is a tactic

A portion of my method, a tool

In fact it's only of importance when I make it a priority

And what we sample's loved by the majority.

Unlike Stetsasonic, U.S. courts are of different minds about whether sampling is always legally significant. More specifically, the Sixth and Ninth Circuit Courts of Appeals are split on whether a de minimis exception applies to using unauthorized samples of copyrighted sound recordings. The de minimis exception protects use of unauthorized samples that courts deem trivial from infringement claims, figuring that “nobody would recognize the [sample] at all.” In Bridgeport Music, Inc. v. Dimension Films, the Sixth Circuit reasoned that uses of samples are always important, holding that unauthorized samples are copyright infringement no matter the sample's triviality. The court stated that artists must “[g]et a license or do not sample,” a precedent with which the Ninth Circuit wholly disagreed. In VMG Salsoul, LLC v. Ciccone, the Ninth Circuit held that the de minimis exception does apply to unauthorized samples of copyrighted sound recordings. A circuit split now lies in the wake of the decisions in Bridgeport and VMG, forcing copyright holders and musicians to forum shop, filing a lawsuit in whichever circuit best favors their opinion about whether the de minimis exception should apply to sound recordings.

This Note supports the Ninth Circuit's holding that the de minimis exception applies to unauthorized samples and that this exception is justified by the economically motivated “average audience” test. This test dictates that when average audience members do not recognize samples of sound recordings, those samples are de minimis and thus not actionable copyright infringement. Additionally, this Note argues that the de minimis exception should also apply to sound recordings based on a Critical Race Intellectual Property (IP) framework.

A Critical Race IP framework is particularly apt for evaluating this circuit split due to the racial dynamics underlying both cases. Bridgeport involved defendant N.W.A., a Black “vocally anti-authoritarian” group sampling music by George Clinton, another Black artist. Record label Westbound Records owned Clinton's sound recording copyright; consequently, the case was an unorthodox Black rap group defending itself against an established record company. Contrastingly, VMG involved defendant Madonna, a white pop star sampling Black soul musicians' work. While the Black musicians' label represented them in court, the dynamic of their suit--being against a famous and influential white artist--differed significantly from Bridgeport's. Professors Anjali Vats and Deidre A. Keller, noticing the racial difference between the cases, remarked that the defendants in both cases were using similarly unauthorized samples, but the white, more powerful artist's use in VMG was protected because the Ninth Circuit applied the de minimis exception to sound recordings. Conversely, the Sixth Circuit denied the de minimis exception to the Black artists in Bridgeport for doing virtually the same thing.

While these racial dynamics may be purely coincidental, consideration of their significance recalls sampling's inherently Black history. This Note argues that sampling's inherent Blackness implicates Critical Race IP as a useful framework for understanding Bridgeport and VMG's impact on Black artists who sample and for revealing how the de minimis exception can aid Black artistry. Part I of this Note will provide key background information on the history of the de minimis exception, sampling's significance within the Black community, and Critical Race IP's core tenets. Part II will explain Bridgeport and VMG's holdings, rationales, and impacts. Part III will argue that the de minimis exception should apply to sound recordings because it can encourage Black artistry by (1) allowing Black artists to continue their collective approach via sampling without additional expenses and bureaucracy that stifle their creativity and (2) inducing Black artists to create new works, which supports copyright law's core purpose: promoting progress.

[. . .]

In the circuit split between Bridgeport and VMG, the Ninth Circuit court decided VMG correctly because it applied a de minimis exception to unauthorized copyrighted sound recordings, specifically unauthorized digital music samples. The exception has primarily been justified by the “average audience” test's economic rationale, but arguably it is also justified from a Critical Race IP perspective. A Critical Race IP perspective illustrates that the de minimis exception should apply to unauthorized digital music samples because the exception encourages Black artistry by supporting sampling's collective nature; the de minimis exception as applied to this situation lessens artists' legal fees, creates access to the trial-and-error creative process, provides Black artists the opportunity to engage in historically Black modes of operation like signifyin', and allows Black artists to have vital economic support from record labels. The de minimis exception also encourages Black artistry by prompting Black artists to create new works, which is one of copyright law's core goals.

While this Note views applying the de minimis exception as encouraging Black artistry and culture, this argument has potentially harmful implications. One can argue that using the de minimis exception to encourage Black cultural production associates a historically Black artform with being reliant on the use of insignificant “trifles” and thus disregards sampling as a complex and brilliant practice. But sampling is far from being insignificant or trivial. From a Critical Race IP viewpoint, the de minimis exception has the capacity to support and encourage Black artistry, and thus, it is a successful, albeit imperfect, tool for achieving these ends. Though associating Black art with legal triviality is harmful, this harm is arguably outweighed by the de minimis exception's power to help Black art thrive under copyright protection.

The importance of this harm also lessens when considering that the de minimis exception not only encourages Black art but also acknowledges and honors its brilliance. Historically, “unequal copyright protection” has allowed the music industry to deny Black artists compensation and recognition for their work, disregarding Black music's brilliance. In using the de minimis exception to help Black artists continue that brilliance through sampling, the legal community is using copyright law to honor this artistry. Doing so is a small but necessary step toward undoing the harm the music industry has caused Black artists and creating a more liberated world where Black artists and their contributions are compensated, championed, and celebrated.

Georgetown University Law Center, J.D. 2024; Georgetown University, B.A. 2021. © 2024, Mariah Johnson.