The email newsletter Five Useful Articles, sent out by the amazing Sarah Jeong & Parker Higgins, has some pithy coverage of the TufAmerica v. WB Music Corp case.
The following is an excerpt from “The Grinch Who Stole ©hristmas: 5 Useful Articles — Vol. 2 Issue 10” December 11, 2014
Run This Takedown
Jay Z has managed to brush off a copyright suit concerning a “loudly shouted, buoyantly exuberant ‘Oh!'” that was sampled 42 times for the song “Run This Town.” (See our previous coverage here). The Oh! was originally from a funk record now owned by TufAmerica, which has made a nice little business out of buying up the rights to old sound recordings and then suing people.
As far as hustles go, it’s a pretty smart one. TufAmerica has managed to shake down several artists, including Kanye West for the very same Oh! in a different track. And the case law isn’t great for artists who sample, even if the sample is very short and distorted. The big one, of course, is Bridgeport Music v. Dimension Films, which was over a two second sample that had been modulated and distorted until it was unrecognizable. “Get a license or do not sample. We do not see this as stifling creativity in any significant way.”
In contrast, TufAmerica v. WB Music Corp. is a nice change of pace. The issue isn’t exactly the same (although the de minimis doctrine—the defense that the copying is so small that it’s not infringement—is mentioned on page 13). But it’s a big difference from “Get a license or do not sample.” It didn’t matter if the sample had been literally copied from the record (which, to be clear, was always a contested fact). It had been changed so much that no “copy” was made for the purposes of the copyright—it was just too different to find any infringement. Judge Kaplan had some serious shade to throw in that regard: “We are concerned here with an alleged sample of a single syllable that is, at best, barely perceptible in the allegedly infringing works and that at best has only the most dubious claim to qualitative significance with respect to the allegedly infringed work.”
(Ohhhhh!)
The following is an excerpt from “Sorry For Partying: 5 Useful Articles – Vol. 2 Issue 1” September 18, 2014.
In other music litigation news, Jay Z is not a trainwreck, and might be on track to undoing Bridgeport Music v. Dimension Films (the case that found that 2 seconds of sampling is long enough to be infringing).
Seems reasonable enough to us. Mike Masnick at TechDirt suggests that this case has the potential to become one of the important cases on music samples. Maybe Hova’s tendency to make timeless classics will also extend to the courts.
