A surprising new court ruling could have a profound impact on the use of samples in hip-hop and other recordings.

In a decision that some industry lawyers view as contrary to the law, the U.S. Court of Appeals for the Sixth Circuit in Nashville created what it called a "new rule" in copyright law Sepember 7th.

The court held that a mere two-second, unauthorized sample of a guitar solo from Funkadelic's "Get Off Your Ass and Jam" is enough to constitute copyright infringement of the recording.

The sample was used in N.W.A's "100 Miles and Runnin'," a cut on the soundtrack to the 1998 film I Got the Hook Up, produced by Master P's No Limit Films. Bridgeport Music and Westbound Records claim to own the musical composition and Funkadelic's sound recording copyrights, respectively. They joined other parties in filing lawsuits in May 2001 against about 800 defendants for nearly 500 copyright infringement claims for unauthorized sampling.

Roughly half of the claims have been settled or dismissed; others are pending.

In the "100 Miles" action, a District Court in Nashville granted a summary judgment to No Limit in October 2002 finding that the samples did not infringe the copyright.

The latest decision follows an appeal of the District Court ruling by Bridgeport and Wes tbound.

Prior to the new decision, most copyright practitioners viewed samples as subject to the same infringement standards as other copyrighted works. That is, copyright law only protects "original" creative works, and there is no unlawful infringement for copying a work unless a substantial portion of the work (in quantity or quality) is copied without permission.

While this opinion does not apply to the underlying musical composition since the court held that the song was licensed, it does set a new "test" for infringement cases involving samples of sound recordings.

"This appears to be a very broad ruling that may impact other cases involving samples," says Westbound's attorney, Richard Busch of King & Ballow in Nashville.

The Sixth Circuit Court of Appeals considers cases in four states, including Tennessee. Courts in the other 11 circuits may or may not follow this ruling.

WHAT IS ORIGINAL?

First, the court held that merely recording sounds onto the master recording makes the sounds "original." Next, the court held that any sampling of sounds is an infringement of the sound recording copyright. Since it's unlawful to pirate the whole sound recording, the court reasoned, it's unlawful to sample less than the whole recording without permission.

"Get a license or do not sample," the court wrote. Further, the three-judge panel wrote, if the copyright holder refuses to license the sounds or demands too high a price, copyright law already permits a producer to record a duplicate "sound" with instruments in his own studio.

"This decision is wrong as a matter of law," one attorney says, reflecting the opinions of others who are familiar with the decision.

For hip-hop artists and producers, increasing the royalties they must share with others could have a significant impact on their bank accounts.

But it's not only about the money. Many hip-hop producers are not like traditional record producers who work in a studio and know how to mic-up the instruments and vocals, producer Hi-Tek says (right on picture). Instead, these hip-hop producers only know their own equipment and work in a small space. They rely on samples.

THE ART OF THE SAMPLE

"Sampling is so important. It's the foundation of rap and hip-hop," The Roots' co-manager Shawn Gee says. Early rappers like Grandmaster Flash and Sugarhill Gang rapped their rhymes over existing music; that was the art form. As hip-hop evolved, "samples became an instrument" to create new sounds, he says.

Hi-Tek explains, "To be a hot producer, you have to have an ear for a different vibe."

Samples inspire producers to create a new piece of music. Sometimes they use a sound like a snare or a kick drum that no one else may even notice in a recording. Part of their talent is the ability to find different sounds to sample. Restricting the use of samples, Hi-Tek says, is also "taking away the fun."

Is the appeals court decision a victory for labels and producers who own sound-recording rights? At first glance it appears so. On second glance it's a double-edged sword.

While the decision protects labels whose recordings are sampled, it can turn those companies into defendants if their releases include samples that they did not know about and did not license from the owners. All the major labels were among the original 800 defendants sued.

For the most part, labels prefer to err on the side of caution. Ian Allen, director of sample clearance at Island Def Jam, has licensed thousands of samples in his 10 years with the company.

"My standard rule of thumb is that a sample that brings to mind the song must be cleared," he says. "Any recording of more than a note, you really have to consider licensing the sound recording."

In the case of "100 Miles," N.W.A originally had revealed the presence of the sample but sought only a synch license for the composition.

However, it is sometimes part of a producer's mystique not to reveal the use of a sample. 

 Cam'ron says, "I work with any producer that brings me a hot beat, but you don't always know if it's a sample."

Like most artists, Cam'ron focuses on the music first and worries about getting the rights to use the samples afterward. But problems with getting these rights affected his selection of one producer recently. Since his label was unable to clear a sample the producer used on a previous track, this "bad luck" made him pass on using that producer again.

While producers like Hi-Tek don't believe the court's ruling will have much affect on their work, some business managers disagree.

The decision will have "no impact on creative producers until they're hit with their first lawsuit," Gee says. That is when they'll feel it in their pockets.

With all the bootlegging and piracy that is affecting the industry, it is no surprise to Damon Dash that companies are going to court to collect on samples. As co-founder of Roc-a-Fella Records with Jay-Z, he believes that using samples is an art form. If there are restrictions on their use, however, then producers have to "step up to the game" and become more creative without using samples. "I look for hit records," Dash says, with or without samples.

Meanwhile, the "100 Miles" case has been remanded to the District Court for further proceedings, including a decision of possible damages.

No Limit Films could also seek a reconsideration of the decision or a review by the U.S. Supreme Court. "We've just received the opinion and are conferring with our client to decide what action to take," says attorney Bob Sullivan of Loeb & Loeb in Nashville.

Credits: Reuters