Two Seconds and a Circuit Split

In 1990 N.W.A. released a track that used two seconds of a Funkadelic record: a three-note arpeggiated guitar figure, pitched down, looped, appearing at a handful of points. It is the kind of thing a casual listener would not identify and a producer would regard as raw material.

Bridgeport Music, which held rights in the Funkadelic recording, sued. A district court found no infringement, drawing a line between recognisable and unrecognisable fragments. In 2005 the Sixth Circuit reversed, threw out that distinction, and announced a rule of its own in six words: get a licence or do not sample.

The reasoning rested on the sound recording provision of the Copyright Act. The court read it as giving the owner of a recording the exclusive right to make copies that duplicate the actual sounds, and concluded that taking anything short of the whole thing was still taking something, so there was no threshold below which copying was too small to be actionable.

That reasoning has been heavily criticised, including by people who think the outcome might be defensible on other grounds. But the practical effect was immediate and large, because the music industry does not operate circuit by circuit. For a decade the working assumption everywhere was that any identifiable fragment of any recording required a licence, and clearance departments behaved accordingly.

Then, in 2016, the Ninth Circuit decided a case about a quarter-second horn blast in Madonna's Vogue, taken from a record called Love Break.

A quarter of a second. The court held that it was de minimis: too trivial for a general audience to recognise, and therefore not actionable. De minimis is an ordinary principle of copyright law, applied across the whole field, and the court's point was that nothing in the sound recording provision displaces it.

And the Ninth Circuit said, in terms, that it was disagreeing with the Sixth. Courts do not usually advertise this. Creating a circuit split deliberately is a signal that the judges think the other circuit is wrong and that somebody above them should say so.

Nobody has. The Supreme Court has not taken it up and Congress has not legislated. So both rules are law, in different parts of the United States, and whether a given sample is actionable can depend on where a plaintiff chooses to file.

Here is the part that is actually useful to a working musician, and it follows from the previous lesson rather than from either case.

Both of these disputes are about the sound recording: the particular captured performance. So if you play those three notes yourself, on a similar guitar, through a similar amplifier, and record it, the sound recording claim vanishes entirely. You have copied nobody's recording.

You may still have a composition problem, because three notes of somebody's riff might be a taking of the musical work. That is a different owner, a different licence and a completely different legal test, and it is where the next lesson goes.

Replaying rather than sampling is the standard workaround and it is not a loophole. It is a direct consequence of the fact that there are two properties, and it is the clearest practical demonstration that the split is real.