Hip-Hop Observes its Golden Anniversary, Part 2

HOW A “NICHE MOVEMENT” INFLUENCED THE LAW AND CHANGED THE WORLD

Part 2: Some Copyright Concerns

By ileta! A. Sumner

Part I of this Series discussed the origins and development of Hip-Hop. Part II now discusses some of the copyright concerns that Hip-Hop generated.

Copyright Law As It Is Usually Applied

It would be nearly impossible for the average listener to divine from whence Public Enemy found their sources for the samples they used, due to the invention of technology to convert the original sound and the tiny clips they used in rapid-fire succession. Nonetheless, music made in that manner can never come to pass in this day and age, given the present climate in which copyright law is applied to hip-hop music. Normally, there is a series of necessary steps for deciding if the party claiming an infringement is, indeed, entitled to copyright protection. Upon such a finding, the infringing user(s) of the matter in question can raise affirmative defenses that would confer the right to claim an exception to the otherwise absolute proprietary copyright. However, in the case of hip-hop, the majority of circuit courts have thrown the copyright rules out of the window, deciding that—in this genre—copyright law, as it has been enforced for over a century, simply does not apply.

The De Minimis Rule. Copyright protection is extended to “original works of authorship fixed in any tangible medium of expression . . . from which they can be perceived, reproduced, or otherwise communicated either directly or with the aid of a machine or device.” While copyrights are not intended to just reward the creator of the original work, but are also intended to encourage public benefits, they do explicitly cover both “musical works, including any accompanying words,” as well as any “sound recordings” of those works. Hence, there are two distinct copyrightable components in digital sampling cases: (1) the sound recording; and (2) the original musical composition itself. For a plaintiff to prove there has been an infringement of his or her copyright under the Copyright Act of 1976, three essential elements must first be met: (1) ownership of a valid copyright; (2) a copying; and (3) a copying of constituent elements of the work of the original.

However, to prove that there has been a legally significant copyright infringement, a core test—the substantial similarity test, which dates back to the 19th century—must be applied. This similarity must be both quantitative and qualitative. If the public cannot recognize the appropriation, then the copier has not benefitted from the original artist’s expressive content. Thus, there would be no quantitative or qualitative similarity, and the court may dismiss the case as de minimis, which stems from “de minimis non curate lex”—basically, the law does not concern itself with trifles. In other words, trivial copying should not constitute actionable infringement under elementary copyright standards. Historically, the de minimis test has been successfully used by defendants to argue that their copying was not legally significant enough to be actionable. Interestingly, in hip-hop cases, the courts have been unwillingly to apply this traditional concept.

The Affirmative Defense of “Fair Use.” Even if a substantial similarity is proven—and the de minimis rule is inapplicable—standard copyright law allows the defendant to make an affirmative claim of “fair use.” Usually, a court resorts to a four-prong test to determine whether there has been a fair use, considering: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for, or value of, the copyrighted work. Under this test, where an unauthorized sampling is substantial and clearly recognizable to the listener, an infringement will be found (as was the case with Vanilla Ice and MC Hammer, discussed in Part I of this series). It is important to note, though, that original copyrights are there to protect the entire body of the recording itself, not merely small pieces of it. Furthermore, a copyright holder cannot control downstream creativity. If that were true, Congress would not have rethought copyright law a century ago to allow “covers” of original musical compositions that made a major portion of the recordings produced in the 20th century possible. An example that has been given is that the Beatles may not have been happy with William Shatner’s rendition of “Lucy in the Sky with Diamonds”; nevertheless, because of the “elbow room” created by Congress, there was little stopping it.

Copyright Law as Applied in Hip-Hop Cases

As the continued use of previously recorded music to underscore new rap recordings escalated, so did the lawsuits by the creators of the past music. It did not take the courts long not only to voice their disdain for such practice, but also to deviate from long-established norms and procedures of recognizing the rights of copyright holders and those who desired to use their original creations. In the process, hip-hop has changed applicable law, in essence obliterating the time-honored steps that made further use of previous releases permissible—and thus, stifling the creativity of today’s poets—by imposing new, almost insurmountable hindrances.

One of the areas inherent in hip-hop music that has become problematic is the use of modern technology that can transform samples of already released songs into infinite variations, making the original work almost unidentifiable. The questions then become, how much of the new work was truly dependent upon the former work, and how much compensation, if any, is owed to the prior originator. In Grand Upright Music v. Warner Bros Records, Inc., 780 F. Supp. 182 (S.D. N.Y. 1991), the court considered just how use much of a prior work constitutes an infringement. Significantly, the Grand Upright Music court did not use any of the traditional means of determining if there was, indeed, a valid copyright and a de minimis use; and it did not apply a fair use analysis, either.

In this instance, hip-hop artist Biz Markie had looped three words and a portion of “Alone Again (Naturally)” by Gilbert O’Sullivan into his 1991 release, “I Need a Haircut.” Although he asked permission to use the sample, he was denied. Anyway, Biz went ahead and used the small sample, and O’Sullivan sued. The judge determined that O’Sullivan held a copyright on the used material, and without applying any de minimis or fair use analyses whatsoever, literally declared, “Thou shalt not steal.” The court granted injunctive relief to the plaintiff, forcing Biz to withdraw his album from the market. While the decision was largely disregarded and criticized, it set the precedent that one must either get a license for the music he wants to use or create his own original music en toto, thereby crimping the style of hip-hop artists throughout the industry.

Albeit a rational decision—that one should pay for what one uses— it is not as easy as one may presume. First of all, one must recall that there are, in fact, two parts of obtaining a license: getting a license for the use of the recording, as well as getting a license for the underlying song on the recording. In some cases, this involves just one person; but, in many case, it can be two different entities. The rationale is that the originator of the first recording needs to be compensated; but is that what truly happens?

In the case of one of the most sampled bits of music ever used, the 1969 release of James Brown’s “Funky Drummer” (it has been sampled in no fewer than 1,855 songs!), neither Mr. Brown, nor the actual drummer, Clyde Stubblefield, holds the copyright for that music. Instead, Mr. Brown’s catalog is owned by a corporation. Thus, if the idea is to compensate the creator for his or her time, effort, and inspiration, how is that accomplished when that artist does not even own the copyright?

In 2005, the Sixth Circuit added another case that made it more difficult for artists to sample pre-recorded music: Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005). Basically, when a rap group sampled two seconds of a three-note combination solo guitar riff that lasted four seconds from George Clinton’s “Get Off Your Ass and Jam,” looped and extended it to sixteen beats, and added it five times within their record, “100 Miles and Runnin,’” the court ruled that the copyright holder for a sound recording has the sole and absolute right to any derivative work made therefrom, with no need to perform a de minimis, substantial similarity, or fair use examination, and that sampling of those works by others was merely a means to save money. Even though the court did make a cursory distinction between the use of the sound recording (not allowed) and the use of the music itself (allowable), the effect was chilling: sampling of musical recordings post-1972 was strictly forbidden. This, presumably, is still the interpretation of the majority of circuit courts to this day.

The exception to this line of decisions has come from the Ninth Circuit. Madonna was sued for using a 0.23-second “horn hit” from the song “Love Break” (1982) in her worldwide hit, “Vogue.” Unlike the courts in Grand Upright and Bridgeport, this time, in VMG Salsoul v. Ciccione, 824 F 3d. 871 (9th Cir. 2016), the court did apply traditional copyright methods for determining if the use was permitted by applying the de minimis rule. In affirming the lower court’s decision—and by defiantly refusing to follow the logic of Bridgeport—the Ninth Circuit decided that the sampled section lacked enough originality to qualify for copyright protection; more importantly, even if the sample were eligible for a copyright, the bit used was de minimis.

While there is a split among the Circuit Courts, with the most recent decision actually following copyright standards, one cannot deny that applying laws developed in the beginning of the last century to an art form that is ever-evolving in the 21st century has cast a pall over the recording industry and has halted the creativity at the very soul of hip-hop unlike any other application of copyright law. Moreover, by refusing to use the rules for fair use of the works of others, the courts are disregarding the possible benefits that could come from sampling. When a hip-hop artist uses a piece of previously recorded music, the sound bite could whet the appetite for art from a bygone era, and this art need not be solely musical in nature—like Richard Martin Lloyd Walters’ (a/k/a Slick Rick) ingenious sample of the theme song from the children’s cartoon “Inspector Gadget” within his bestselling song “The Show” (1985). When done properly, sampling could, in turn, create new avenues of revenue for performers no longer on television, touring, or recording; or merely increase interest in the prior work.

Copyright law was created to allow works of the past to serve as the seeds of innovation for the future, not to choke the means of invention. The time has come for Congress to adjust the laws of copyright, making it easier and affordable for artists to obtain the requisite licenses, while still adhering to the already established standards of the Copyright Act of 1976. It makes sense to compensate those whose works facilitate these new art forms without ignoring the rigors set in place to make just decisions when claims do arise. The law should not be able to hinder artistic freedom with the “bang of a gavel.”

ileta! A. Sumner, Esq.

ileta! A. Sumner, Esq. is a former President of the Bexar County Women’s Bar Association (2002) and the original General Counsel and creator of the legal department of the Battered Women’s and Children Shelter. She has been disabled since 2006. She can be reached at (210) 421-2877 (cell), litig7rij@aol.com.

SELECTED BIBLIOGRAPHY

Education through Music, “A Brief History of Hip-Hop,” etmonline.org, https://etmonline.org/stories/hiphophistory/#.

George Varga, “Hip-hop at 50: It’s global impact has surpassed that of rock ‘n’ roll a generation earlier,” San Diego Union Tribune, August 6, 2023, 6:00 a.m. PT, https://www.sandiegouniontribune.com/entertainment/music/ story/2023-08-06/hip-hop-at-50-global-impact-rivals-that-of-rock-n-roll-ageneration-earlier

“Hip-hop: A Culture of Vision & Voice,” The Kennedy Center, https://www. kennedy-center.org/education/resources-for-educators/classroom-resources/ media-and-interactives/media/hip-hop/hip-hop-a-culture-of-vision-andvoice/

Jonathan Abrams, “Breakers Grapple with Hip-Hop’s Big Olympic Moment,” New York Times, October 10, 2023, https://www.nytimes.com/2023/10/10/ arts/dance/olympics-breaking-dance.html

George Varga, “Hip-hop history: A timeline of key events in the music’s early decades,” San Diego Union Tribune, August 6, 2023, https://www.sandiegouniontribune.com/entertainment/music/story/2023-08-06/hip-hop-history-a-timeline-of-key-events

“Rap music is stylistically & lyrically diverse, representing a range of experiences & worldviews that characterize the multiple & changing voices among African American youth,” Timeline of African American Music – Rap/HipHop, carnegiehall.org, https://timeline.carnegiehall.org/genres/rap-hip-hop

Juana Summers, Kat Lansdorf, Patrick Jarenwattanwnon, “Rapper’s Delight: How hip-hop got its first record deal,” npr, August 8, 2023, 5:23 p.m. ET,