COPYCENSE

This story was last updated on Monday, March 20, 2006 at 10:14 hrs. EST.

A federal judge has ordered a stop to all sales of the classic hip hop album Ready To Die after a jury determined that one of its songs contained an illegal sample.

The order from district court judge Todd J. Campbell came late last week, after a federal jury determined that executive producer Sean “Diddy” Combs and his recording label, Bad Boy Entertainment, had not received permission to include a sample of Ohio Players’ “Singing in the Morning” in one of the album’s songs. According to an Associated Press report, the jury in the case awarded $4.2 million in punitive and direct damages on March 19 to Bridgeport Music and Westbound Records, the song’s publisher and record company, respectively.

Judge Campbell’s order reportedly bans sales of the song and the album in any form, both physical and electronic. (As of Monday morning, electronic copies of Ready to Die remained available for sale on Apple’s iTunes music store.) Judge Campbell was appointed to the federal bench by President Clinton on December 27, 1995, after a career that included private practice in Nashville, TN.

Combs and his record label plan to appeal the verdict, according to the Associated Press report. “Singing in the Morning” originally appeared on Pain, an album the Ohio Players released on Westbound Records in 1971. Westbound re-released the track in 1998 on an import Ohio Players compilation entitled Orgasm: The Very Best of the Westbound Years.

The estate of artist Notorious B.I.G. (born Christopher Wallace) was released as a defendant in the middle of the case, said the Associated Press. Wallace, 24, was murdered in Los Angeles in 1997. Before his death, Wallace had established himself as one of the premiere MCs in hip hop, and now is widely regarded as one of the best MCs ever. Ready To Die, Wallace’s first album, was released in September 1994 and has sold more than 2.5 million copies. The album is considered a masterpiece of the genre, and in 2003, Rolling Stone named it one of the 500 greatest albums of all time.

Several of the songs on Ready to Die include credited samples, including “Big Poppa” (sampling the Isley Brothers’ “Between the Sheets”), “Juicy” (sampling Mtume’s “Juicy Fruit”) and “Warning” (sampling a cover of Burt Bacharach’s “Walk On By” as performed by Isaac Hayes and the Bar-Kays). Combs’ musical career has been lauded and criticized for his willingness to use other’s work as the basis for his own compositions; his posthumous musical tribute to Wallace, “I’ll Be Missing You,” is a derivative work based upon The Police’s “Every Breath You Take.”

According to National Public Radio, the offending sample is a three-note horn riff from “Singing” that is included on the album’s title track.

This case is notable for several reasons. First, it follows an unusual Sixth Circuit precedent, which includes federal courts in the states of Tennessee, Kentucky, Ohio, and Michigan. In Bridgeport Music v. Dimension Films, 383 F. 3d 390 (6th Cir. 2004), the court affirmed a 2002 opinion issued by the United States District Court for the Middle District of Tennessee at Nashville that awarded costs and attorney fees to Bridgeport and Westbound for the unlicensed use and inclusion of George Clinton and the Funkadelics’ “Get Off Your Ass and Jam” in the song “100 Miles and Runnin’.” The song and sample were included in a film entitled I Got the Hook Up.

In affirming Bridgeport’s and Westbound’s exclusive rights, Judge Ralph B. Guy rejected de minimis and fair use sampling. “Get a license or do not sample. We do not see this as stifling creativity in any significant way,” wrote Guy. “It must be remembered that if an artist wants to incorporate a ‘riff’ from another work in his or her recording, he is free to duplicate the sound of that ‘riff’ in the studio.”

In December 2004, the Sixth Circuit later reheard portions of the Bridgeport case; in June 2005, the Sixth Circuit reaffirmed its ruling that de minimis copying does not apply to sound recordings. Copyright attorney and scholar William Patry criticized the reaffirmed ruling shortly after it was released, saying

Bridgeport is policy making wrapped up in a truncated view of law and economics, shorn of analysis of all the public interest factors and harm to derivative creators that nuanced exponents, such as Judge Posner, engage in. It is also bad for record companies on two fronts (and I think it important to note that this is not an RIAA suit). First, it adds fuel to the fire for those who believe record companies are engaged in an effort to prohibit any and all unauthorized copying (I think this is not an accurate view, by the way). Second, it harms record companies by forcing them (at least in the 6th Circuit) to engage in a retroactive process of determining who they may have to pay off for past, unpaid samples and well as possibly requiring them to institute extremely restrictive future policies.

But in the end, it is creators of new sound recordings who build, transformatively on the works of predecessors who will suffer the most, and thereby all of us. Hopefully cert. will be granted, and the 6th Circuit reversed.

Second, the Ready to Die verdict and the law that supports the verdict further establishes the Sixth Circuit as a notable anomaly in copyright jurisprudence. To date, the federal courts in Ohio, Tennessee, Kentucky and Michigan are the only federal courts in the country that clearly reject de minimis digital sampling of pre-recorded music. (Neither the federal courts of the Second Circuit — which includes New York — nor the federal courts of the Ninth Circuit — which includes California — interpret de minimis use of copyrighted music so strictly.) The Sixth Circuit’s ruling represents a clear separation of opinion amongst the judicial circuits, which usually points to an issue that is ripe for analysis by the Supreme Court. But Supreme Court review is uncertain, and likely will not occur before additional adverse judgments are levied against other popular albums that include unlicensed snippets of music from artists whose work is controlled by Bridgeport or Westbound. Until the Supreme Court looks at this issue, the lawsuits will continue.

Finally, the verdict has serious immediate implications for popular music generally, and hip hop in particular. Bridgeport Music and Westbound Records hold copyrights in the musical compositions and sound recordings of several influential soul artists, including George Clinton, Parliament, Funkadelic, and the Ohio Players. The music of these artists has been sampled extensively — overtly and covertly — by contemporary hip hop artists for years. Since royalties are Bridgeport’s and Westbound’s primary source of income, both entities are certain to continue pursuing and litigating all unlicensed uses of their compositions and recordings. And both companies are emboldened to do so by an anomalous, favorable ruling.

Perhaps the one “positive” of the Ready to Die verdict and order is that they halt sales of a critically acclaimed and commercially popular album made by an extremely popular artist. In doing so, the legal actions likely will bring this case (and copyright issues, generally) into the public eye in a way that affects everyday consumers on a direct and personal level. Further, defendant Combs, whose net worth Forbes estimates at more than $250 million, has the money to fund an appeal through the Sixth Circuit, and to the Supreme Court, if necessary. And by virtue of his position in entertainment, Combs can give such an appeal a level of widespread, general publicity that, in comparison, Lawrence Lessig could not muster when he argued Eldred v. Ashcroft before the Supreme Court in October 2002.

While the Eldred case was burdened with an unknown plaintiff and complicated constitutional issues the public could not understand easily, Combs can reduce his case to a simple sound bite: “You can’t hear Biggie at his best because a court said I didn’t get permission to use a sample that lasted less than five seconds. Is that fair?” Given his penchant for the fabulous, it would not be surprising if Combs transformed this issue into a “Free Biggie” campaign. One can debate the tastefulness of such a campaign — particularly given the way Wallace died — but I suspect such an effort would be catchy and effective with the general public and many of the business leaders with whom Combs now rubs elbows.

Often, I have contended that only two factors will change the way this nation’s lawmakers and public policy figures look at copyright: money and public outrage. The content industry has been effective at leveraging its financial clout to define and shape the message that the public and legislators hear about copyright. I believe, however, that the publishing industry’s lawsuits against Google represent one of the first instances in which a defendant in a copyright case is popular enough, and financially fit enough, to challenge the content industry’s message in Congress and before the judiciary.

If Combs appeals this case, which many experts agree was wrongly decided, it will foster enough public outrage and awareness about copyright that legislators and the judiciary will begin to hear another message about copyright, regardless of how this particular case is resolved.

See also:

Allison Keyes. Judge Halts Sales of Landmark Recording ‘Ready to Die.’ National Public Radio. March 20, 2006.

BBC News. Judge Blocks Notorious B.I.G. Album. March 19, 2006.

Associated Press. Judge Halts Notorious B.I.G. Album Sales. MercuryNews.com. March 18, 2006.

K. Matthew Dames. Demystifying Fair Use. CopyCense. March 2, 2006.

The Patry Copyright Blog. The Unsettled, Unsettling Concept of “Copy.” October 17, 2005.

K. Matthew Dames. Why Google Shouldn’t Punt on Litigation. CopyCense. Oct. 4, 2005.

The Patry Copyright Blog. The Sixth Circuit Reaffirms Controversial Sound Recording Opinion. June 6, 2005.

The Free Expression Policy Project. Appeals Court Reaffirms Its Tone-Deaf Approach to Music Sampling. June 5, 2006.

U.S. Court of Appeals for the Sixth Circuit. Brief of Amici Curiae: Brennan Center for Justice at NYU Law School & the Electronic Frontier Foundation in Support of Appellee No Limit Films LLC. (.pdf) Jan. 20, 2005.

Marjorie Heins. Trashing the Copyright Balance. The Free Expression Policy Project. Sept. 21, 2004.

Billboard. Court Ruling Could Chill Sample Use. MSNBC. Sept. 10, 2004.

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