Sampling and Appropriation

Most of the discussion of sampling and appropriation in the news and in courtrooms is focused on copyright infringement that’s already happened and the fair-use defense or other defenses that artists raise in court.  For example, the collage artist Shepard Fairey faced a copyright lawsuit from the Associated Press based on the photograph he manipulated to create his iconic Obama Hope poster.  Fair use is an important part of copyright that facilitates the creation of new works, but litigation like this can be quite costly.  Many potential conflicts are avoided if artists work out licensing arrangements for the sampled material beforehand or obtain their material from the public domain or under Creative Commons licenses.

Under the Digital Millennium Copyright Act (DMCA), a copyright holder may issue a takedown notice for infringing content appearing online to an Internet or online service provider. The DMCA provides a “safe harbor” to service providers who promptly remove the material (while giving notice to the poster). The DMCA allows the party who posted the allegedly infringing material to issue a counter-notice if the think their content is noninfriging. Misuse of the DMCA’s notice-and-takedown process can lead to liability for the party issuing takedown notices.

In rare cases involving company logos, sampling and appropriation may lead to a suit over trademarks, which have additional protections beyond copyright.

Copyright Infringement

A copyright holder has to meet two basic requirements to bring an infringement lawsuit against you: 1) she or he has to own the copyright to the work in question, and 2) she or he has to point to a specific instance where you’ve copied or modified the work without permission.

Proving ownership of the copyright is relatively easy in cases where a song has already been recorded or a picture has already been published. The owner of the original work need not comply with any formalities to receive copyright protection (although some formalities, such as registering the work with the Copyright Office, may affect matters like the damages available for infringement).

Proving copying is also fairly straightforward – even if you’ve re-recorded the music yourself, re-painted a picture (or cast it in a different medium), or made minor changes, it can still be considered a copy so long as a court determines that your work is “substantially similar” to the original.

The “substantial similarity” requirement offers artists protection, in some cases, for small amounts of copying. However, there is no hard and fast rule on how much is too much, and at least one court has ruled that any digital copying of music, no matter how small, could be copyright infringement.

Fair Use

The fair-use defense is built into copyright law to allow creative people to build on others’ work without having to obtain permission.  This defense is complicated because a court is required to consider four separate factors on a case-by-case basis to decide whether a particular use is fair, meaning that it may be difficult to predict the outcome of a case ahead of time.  One of the factors could weigh strongly toward one side, while the other three weighed mildly on the other, and the court could decide the case either way.

Despite the lack of uniform instructions on how to compare these factors, courts usually rely most on the first factor (“the purpose and character of the use”) and the fourth factor (“the effect of the use upon the potential market for or value of the copyright”).

The four factors, and some discussion of how courts evaluate each one, are outlined below:

• “The purpose and character of the use.”  Copyright law specifically grants more leeway to nonprofit or educational uses, but even commercial uses can be fair. One of the key questions that artists will usually face is whether their work is transformative.  “Transformative” means more than simply taking another piece of work and casting it in a new medium; it requires using it for a different purpose or to view the original in a different light. Parody has often proven to be a successful fair-use defense, and it requires a critique of the specific, original work.  Use of the work as a more general satire has received less protection under the fair-use test.
• “The nature of the copyrighted work.”  One factor to consider is whether the work has been previously published: if not, then copying is less likely to be found fair. Additionally, some aspects of a work may be more protected than others.  For example, a photographer’s composition, angles, and lighting may be more protected by copyright than her or his subject.  Finally, a literary or artistic work, compared to a collection of factual information, is likely to be more protected because the creativity at stake is closer to the core concerns of copyright. Use of less protected works or parts of a work is more likely to be permitted.
• “The amount and substantiality of the portion used in relation to the copyrighted work as a whole.”  This factor is tricky, because in some cases it may be fair to copy the entire copyrighted work.  This question is really about whether the right proportion is used in relation to the purpose and character of the use.  A good parody or critique may require borrowing a substantial portion of the original so that it can conjure up the original in the minds of the audience. For musical sampling, however, even very short samples often fail to be fair under this factor.
• “The effect of the use upon the potential market for or value of the copyrighted work.”  One question that courts ask is whether the consumer audience will substitute the new work for the original. If not, the use may be fair.  Another that courts will ask is whether this sort of copying harms the original artist’s ability to license the work.  Bear in mind that certain kinds of harm to the market for the original can still be fair, like the reduction in sales that may result from a scathing criticism or parody.

Permission and Licenses

One way to avoid a copyright battle is to obtain permission beforehand, because a licensed use is protected from an infringement suit.  There are several possible difficulties that an artist may face in obtaining a license: licenses usually cost money, copyright owners may be difficult to locate and have no obligation to respond to requests, and copyright ownership for certain works may be ambiguous because of the number of contracts that have been made behind the scenes, like those that musicians often sign with record companies.

The difficulty of obtaining permission will depend on who you’re dealing with and what you plan to do with your work: obtaining permission to sample a local artist’s song for your own local performances will be easier than obtaining permission to copy a professional photographer’s prints in a painting that you intend to sell for thousands of dollars. Sometimes the greatest challenge will be in finding the owner of the copyright in the work. Certain works are considered “orphans” because the rightsholder cannot be found.

When you’re working out a license, it’s also important to pay attention to the terms of the agreement, because a copyright holder can allow certain forms of copying or adaptation while refusing others.  You need to have permission to do the specific kind of work you plan to do.

A particular complication that sampling artists may run into is that many musical works have two separate copyrights, one held by the composer of the score and another by the studio that distributes the recording.

Public Domain and Creative Commons

Some works are pre-licensed for artists to use in sampling and appropriation.  Anything published before 1923 is in the public domain – and thus free to use – as is any work created by the U.S. government.  Artists can also specifically release their content into the public domain, or offer special licenses such as those drafted by Creative Commons, to allow others to freely copy or use their work under certain specified conditions.

DMCA Takedown Notice

Congress passed the Digital Millennium Copyright Act (DMCA) in 1998 to make a number of changes to copyright law, including a new set of “notice and takedown” procedures that give copyright holders a quicker means of removing unauthorized content from the Internet than an infringement lawsuit.

Under the DMCA, copyright holders who believe their work is being infringed online can send a notice to a service provider (like YouTube or deviantART) with information on the asserted unauthorized use of their materials.  The service provider may elect to comply with the request and maintain its “safe harbor,” protecting itself from monetary damages, injunctive or equitable relief if it “responds expeditiously” and notifies the poster. Alternatively, the service provider may decline to comply with the request, but risks defending a lawsuit.  Because service providers don’t want to be sued, they will often comply.  While having the material taken down often satisfies the copyright holder, the copyright holder still has the legal right to sue the individual who posted the material.

Even if a copyright owner requests that your work be taken down under the DMCA, you can provide a counter notification requesting that it be put back up if you believe you have the right to post it. In order to qualify, your counter notification must contain four parts:

• Your physical or electronic signature;
• Identification of the materials that were removed or disabled, and their location;
• A statement under penalty of perjury that you have a good faith belief “that the material was removed or disabled as a result of mistake or misidentification”;
• Your name, address, phone number, and consent to the jurisdiction of the Federal Court for the area where your address is located (or, if the address is outside the United States, consent to the jurisdiction of any judicial district in which the service provider to whom you’re writing can be found), and consent to accept service of process from the copyright owner.

The language of the DMCA, requiring “a statement under penalty of perjury,” and its particular requirement of “mistake or misidentification,” sounds intimidating. However, the Electronic Frontier Foundation (EFF) and other free speech advocates have persuasively argued that a copyright holder is “mistaken” if she or he fails to consider fair use.  For example, in the famous “dancing baby” case involving a Prince song, the court agreed with EFF and explicitly stated that “[a] good faith consideration of whether a particular use is fair is consistent with the purpose of the statute,” meaning that it is a mistake for a copyright owner to issue a takedown notice without considering whether the use of the work qualifies as fair use.

If you have a strong enough fair-use claim or other right to post the material, you may even be able to bring a suit against the copyright holder for misrepresenting that your material was infringing.

However, be aware that filing counter notice ups the ante, as the next step required of the copyright holder, if she or he insists that the work should be taken down, is to go to court to seek a restraining order against posting the material.  The copyright holder might also be more inclined to file an infringement suit once someone has stepped forward to oppose the takedown.

Trademark Infringement

Trademark law may also interfere with sampling and appropriation.  Trademark law has special provisions to protect against “dilution” of the brand.  While parody can be a strong defense against copyright suit, and while a fair-use exception for parody is built into trademark law, case law does not specify how far these protections extend to parody of a trademarked name or logo.  A corporate jingle might receive similar protection in the context of sampling.

Issues Particular to Sampling Music

Sampling is complicated by the existence of two layers of copyright over each song.  One is over the composition itself, and artists often retain these copyrights. Another is over the recording that the studio distributes, and studios or license clearinghouses usually hold these.  To be safe from infringement suits, you would want to obtain a license from both copyright holders before sampling a given recording.  Alternatively, you could re-record the music yourself, in which case you would only need to obtain a license from whomever owned the copyright over the composition.

Artists could also run into trouble with the anti-circumvention provisions of the DMCA.  If a song was protected from certain forms of copying by technical safeguards, you could face additional claims under the DMCA.

Issues Particular to Appropriating Images

The legal questions around appropriating images have less to do with whether a literal copy was made – in two different cases involving the same artist, literal copying of a photograph has been found “fair” while translating a photograph into a sculpture has been found “unfair” – and more to do with the purpose and character of the use.  Casting an image in a different light is more likely to be protected as fair use than simply casting it in a different medium.

Digital technologies have made the copying of music and art incredibly easy.  This has led to widespread copyright violations, but it has also led to creative repurposing of art to create new art.  Any artist with a home computer can now make a perfect replica of another artist’s work, modify it, and insert it into a new song or painting.  Some artists and scholars think that this development is terrific because it allows for enhanced creativity and greater exposure to the original work.  Some artists and industry representatives think that this development is troubling because artists may not be compensated for their work, reducing their ability to earn a living and their incentive to produce new work.

Sampling and appropriation of copyrighted work always without a comprehensive license brings the risk of an infringement suit, but there are still some things you should keep in mind to increase the chance that your copying will be considered appropriately licensed or fair use.

Get a License, or Utilize the Public Domain or Creative Commons, When It’s Feasible

Artists do not need to license works whose term of copyright protection has expired or are otherwise in the public domain. The public domain and the universe of works subject to Creative Commons licensing can make your work even easier if you can find the image or audio you need from them. Reproduction of works not in the public domain and for which no recognized exception or limitation such as fair use applies, requires a license from the copyright owner. Copyright owners may refuse to give you a license if your work parodies or criticizes theirs, but this doesn’t necessarily mean that you can’t use their work for your art; remember that parodies and criticism have been protected under the fair-use test even though you may have to do battle with the copyright owner’s lawyers.

Consider Whether Your Work Might Be Fair Use

Fair use is complicated, but in general the less you re-use of a particular work and the more you transform it into something new, the more likely you are to succeed.

Remember There Are Two Copyrights Over Sound Recordings

The typical sound recording is protected by both a copyright over the composition (which the songwriter often keeps) and a copyright over the studio recording (which is often held by a record label or license clearinghouse).  To use the recording, you usually need a license from both.  If you cannot obtain a license to the studio recording, you may be able to obtain a license to use the composition to make your own recording.

You Can Submit a “Put-Back” Notice if Your Work Is Taken Down

Even if a copyright owner requests that your work be taken down under the DMCA, you have a right to provide a counter notification requesting that it go back up. Read more about the process in The Basics section.

Copyright Law in Federal Statutes

The four factors of the fair-use test are written into law at 17 U.S.C. § 107.  They include the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the use, and the effect of the use on the market for the original work.

“Dilution by blurring” and “dilution by tarnishment,” issues in trademark infringement, are described by statute at subsection (c) of 22 U.S.C. § 1125.  These statutes codify parody as a fair use defense.

The Digital Millennium Copyright Act describes the procedure for copyright holders to get unauthorized uses of their work taken down from websites.  Even if you’ve received notice from an Internet service provider that your work has been taken down, you have the right to request that it be put back up by giving counter notice as written into law at subsections (g)(2)(C) and (g)(3) of 17 U.S.C. § 512.

If a copyright holder has issued a takedown notice for no good reason, she or he may be liable for misrepresentation under subsection (f) of 17 U.S.C. 512:

The Fair Use Defense

Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569 (1994)

The Supreme Court held that, even though 2 Live Crew’s parody of the Roy Orbison song “Oh, Pretty Woman” was recorded and distributed for a commercial purpose, it could still be protected as fair use.

Since this decision, parody has been a strong argument under the first factor of the fair use test (the purpose and character of the use).  However, the Court also cautioned that you couldn’t just call your work “parody” and then copy freely; your work must meet the definition of parody.  Most importantly, your work should use the earlier work to create something original that sheds new light on the earlier work.

Even though 2 Live Crew had borrowed the “heart” of the song in both the musical elements and lyrics (which is important to consider in determining the amount and substantiality of the portion used in relation to the copyrighted work as a whole, under the third factor of the fair use test), it was allowed to do so because it was necessary to use the heart of the original to communicate an effective parody.

Sampling Music

Jarvis v. A & M Records, 827 F. Supp. 282 (D.N.J. 1993)

To prove copyright infringement, a copyright holder has to be able to show “substantial similarity” between the original work and the copy.  There had been some dispute over whether the sampling of just a few seconds of the song could meet the test, but the court decided in Jarvis v. A & M Records that the sampling of short segments of a song could meet the substantial similarity test.

Bridgeport Music, Inc. v. Dimension Films, 401 F.3d 647 (6th Cir. 2004)

The court presiding over this case ruled that any sampling of an audio recording, no matter how small or unrecognizable in relation to the original, creates a substantially similar copy. This ruling (which is only binding in the federal Sixth Circuit (Kentucky, Michigan, Ohio, and Tennessee) for now, though other courts could choose to follow it) eliminates any defense that may have existed under the “de minimus” test for the copying of short audio segments.

Newton v. Diamond, 388 F.3d 1189 (9th Cir. 2004)

The court presiding over this case affirmed that, at least in the federal Ninth Circuit, the de minimus test still applies to musical compositions.  The Beastie Boys sampled a brief segment from a recording after obtaining a license only for the recording and not for the underlying composition; normally, you would be expected to get a license for both in order to sample without infringing a copyright.  However, the court said that the use of the notes as written in the composition was too insubstantial for the Beastie Boys to be sued by the composer.  The Ninth Circuit covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, the U.S. Territory of Guam, and the Commonwealth of the Northern Mariana Islands.

Appropriation v. Fair Use

Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992)

In this case, the court rejected a fair-use defense after an artist created a satirical sculpture meant to replicate a photograph.

Jeff Koons purchased a postcard at a museum gift shop of a man and woman holding several German shepherd puppies.  He thought the image was a good fit for his series on banality, so he removed the copyright notice from the picture and then sent it to a workshop in Europe and gave very explicit instructions for the workshop to create a wooden sculpture of a man and woman holding puppies just like in the photograph.

The original photographer sued after the sculpture went on display, and Jeff Koons claimed the work was a parody.  Despite the change in medium from photography to wood, the court disagreed with the fair use claim because there was no discernable parody of the photograph itself, just a general satire of this genre of photography.  The court also worried that this sculpture, or photographs of the sculpture, would unfairly substitute for sales of the original postcard.

Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006)

Jeff Koons came back in front of the same court many years later, but this time the court ruled in his favor, finding that a particular use of a photograph in a collage was fair use.

Koons appropriated a picture of a woman’s legs and feet, clad in Gucci sandals, from a fashion magazine and used them, along with a number of other legs, as part of a collage critiquing the marketing of sex and food.  The original photographer sued.  Even though this piece was a satire of marketing and society more generally and not a parody of the specific photo, the court agreed with Koons’s argument that this piece of art was transformative in both presentation and message compared to the original.  The court also found no reason to believe that this collage was interfering with the market to license the original photo.

DMCA Notice-and-Takedown

Lenz v. Universal Music Corp., 801 F.3d 1125 (9th Cir 2015)

In this widely publicized case involving the YouTube video of a baby dancing to “Let’s Go Crazy” by Prince, the court ruled that a copyright owner must consider possible fair-use defenses in its initial decision to issue a takedown notice.  A copyright owner’s failure to do so may open it up to a counter notice requiring the service provider to restore the content, and, in some cases, also to a suit for misrepresentation under the DMCA (although the court in Lens dismissed the misrepresentation claim).

Trademark Dillution

Starbucks v. Dwyer (settled before any opinion made it on record)

Comic book artist Kieron Dwyer took liberties with the Starbucks logo, exposing the mermaid’s breasts, giving her a belly-button ring, and crowning her with a dollar sign, among other changes.  The words on the logo were changed to read “Consumer Whore,” and the artist thought he had a good First Amendment, parody defense to his work.  Starbucks sued him and effectively silenced him under trademark law.  While the court stated in a preliminary order that the art was probably protected as speech, it banned the sale of any item containing the parody and banned any display of the parody on the artist’s website because of the potential of the image to dilute Starbucks’ trademark by tarnishing it.  The case settled before it made it all the way to trial, so no binding ruling was made on how to balance First Amendment rights against trademark dilution.

Dwyer may have had a decent case, since the anti-dilution law grants at least some leeway to “identifying and parodying, criticizing, or commenting” upon famous trademarks, but this case also demonstrates that many artists find it easier to settle out of court than fight against a trademark or copyright owner who has greater legal resources.  You can read more about the dispute here.

Other Resources

First Amendment Center: Arts & First Amendment: Parody & Satire

National Coalition Against Censorship Art Law Library: Copyright and Fair Use

Stanford Copyright & Fair Use – Copyright and Fair Use Overview and Resources

Thomas Jefferson Center: Art On Trial: Copyrights and Artistic Expression