A De Minimis Victory in Hip Hop

BridgeportWasDeminimisLong story short: unauthorized sampling in hip hop has been illegal since 1991 when a district court ruled that sampling constituted copyright infringement no matter how small the sample (Grand Upright Music, Ltd. v. Warner Bros. Records Inc.).  This ruling was reaffirmed in 2005 by the 6th Circuit Court of Appeals in Bridgeport Music, Inc. v. Dimension Films. These two court cases, each of which ruled against the hip hop artist defendant dramatically changed the course of hip hop. The original way hip hop music was made was deemed illegal by the judicial system.

Generally in copyright cases there is something called a De Minimis defense, which allows the defendent to argue that that piece of the original work that they ‘borrowed’ is so small and insignificant that copyright law does not apply. However the rulings in the two cases mentioned above demonstrated that in practice there is no De Minis defense for hip hop music made via sampling.

*Listen to the two songs at issue in the famous Bridgeport case. Can you even hear the sample? If this isn’t De Minimis then nothing is.

However! This week we saw the first sign the courts may moving away from that interpreation. On December 8th 2014 Judge Lewis A. Kapland dismissed a case by Tuf America against Jay-Z’s  2009 single “Run this Town featuring Rihanna and Kanye West”. The case focused on an ‘oh’ sound in the backgorund of “Run this Town” that Tuf America alleged was a sample from Eddie Bo’s 1969 song “Kook and Sling – part 1”. Stangley enough, Tuf Ameria previously sued Kanye West in 2009 for using the same sample in two of his songs (“Lost in the World” and “Who Will Survive in America”). Kanye West paid to settle that case out of court, but now Jay-Z has gone to court andd received a ruling in favor of lososening restrictions around hip hop sampling.

albumscoversWhether this case is a narrow exception given to Jay-Z because he’s Jay-Z, or a precedent setting case that marks the beginningof a sea change in the decriminalization of hip hop sampling remains to be seen. My guess it that it’s somewhere in between, but any shift in the legal system toward acknowledging the validity of remix culture (especially hip hop) is good news.

 

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Notes

*This post was originally posted at The Copyright and Hip Hop Project