In this episode of the Power of Pro Bono podcast, Berkeley Law students and AIR members Brooke Henderson, Dallin Johnson, and Plakshi Jain speak with special guests Sandy Wilbur, a forensic musicologist, and Josh Schroeder, an attorney with the California and Oregon Bar. This episode explores the legal framework around music and copyright by diving into compositions by artists like the Beatles, Slide, Robin Thicke, and more.
Brooke Henderson (BH): Hey everybody! It’s Brooke Henderson,
Plakshi Jain (PJ): Plakshi Jain,
Dallin Johnson (DJ): and Dallin Johnson.
BH: We’ve teamed up with California Lawyers for the Arts to bring you an episode on music copyright and the legalities of music sampling. Joining us today are special guests Sandy Wilbur, a forensic musicologist, and Josh Schroeder, an attorney with the California and Oregon Bar.
Music: “I Feel Fine” by the Beatles
DJ: When the Beatles released “I Feel Fine” as the A-side of their eighth single in 1964, they became one of the first bands to incorporate guitar feedback into a recording. John Lennon even insisted in 1980 that they were the first. “I defy anybody to find a record,” he said, “unless it’s some old blues record in 1922—that used feedback in that way . . . I claim for The Beatles—before Hendrix, before The Who, before anybody—the first feedback on any record.”
And there may be something to this. EMI Sound Engineer Geoff Emerick, who was in the studio with John and Paul McCartney when they serendipitously discovered the feedback technique, highlighted that John “was determined to immortalize the sound . . . years before Jimi Hendrix ever started doing it.” (From here) Regardless, the guitar feedback that opens “I Feel Fine” was the first of John’s revolutionary experimentation with recording techniques that would transform popular music for decades to come.
Music: “I Feel Fine” by the Beatles
DJ: A couple of years later in 1966, the Beatles recorded what music journalist Steve Turner describes as “one of the most extraordinary songs of their career,” “Tomorrow Never Knows.” Contrasting with previous Beatles records that fit more squarely with popular music of the time, Turner highlights that they recorded “a track evoking the experience of an LSD trip, drawing indirectly on a text of Tibetan Buddhism, incorporating random tape recordings played backward, and distorting the vocal to sound like the chanting of an Eastern Monk.”
Music: “Tomorrow Never Knows” by the Beatles
DJ: John pushed the envelope even further in 1968 with the recording of “Revolution 9.”
Music: “Revolution 9” by the Beatles
DJ: “Revolution 9” incorporates sound effects and tape loops with music and themes far more sophisticated and complex than their earlier recordings. Among the sounds is Vaughan Williams’s choral piece O Clap Your Hands, which John wanted played backwards.
Music: “Revolution 9” by the Beatles
DJ: “I suppose it might not have made much sense to have a choral setting going forward,” music critic Allan Kozinn quipped. John incorporated sounds from many sources, and Kozinn emphasized that “[t]hey talk about using the EMI library, but there’s nothing to say that he didn’t bring in things from home, too.”
Music: “Revolution 9” by the Beatles
DJ: The Beatles enjoyed the ability to splice and loop recordings freely in the 1960s, but had John recorded “Revolution 9” in an era with more sophisticated copyright laws, that would not necessarily have been the case. Congress passed the first Copyright Act in 1790, but it would be more than a century later in 1909 before the Act would be amended to protect musical compositions, and 1971 before it would be amended to protect sound recordings—and even then, “only for the sound recordings fixed on or after February 15, 1972.” [See Skidmore v. Led Zeppelin, 952 F.3d 1051, 1062.] To illustrate this, the band Spirit sued Led Zeppelin in 2014, alleging that “Stairway to Heaven” ripped off their song “Taurus,” but “only the one-page Taurus deposit copy, and not a sound recording, could be used” as evidence in the case since the song was recorded in 1967. [Id. at 1058.]
Whereas John, Paul, and other artists with access to multi-track recording equipment in the 1960s were relatively uninhibited in the legal limits of their recording, that is not the case for artists today. California Lawyers for the Arts has previously covered what legal issues artists should be aware of as they’re sampling music for their recordings, but what about when they’re incorporating other types of sound recordings?
In this episode, we’re going to give a brief overview of how music copyright is treated by the law in the United States, we’ll dive into a few examples of the de minimis exception in copyright infringement cases, and we’ll tell you what this all means for artists and producers. What is the de minimis exception? How do different circuits treat it? And if an artist wants to use 0.23 seconds of another artist’s horn sounds, what must they do?
Music: “Taurus” by Spirit
DJ: Defining ownership is fundamental to these concepts. Attorney Joshua Schroeder explains.
Joshua Schroeder (JS): At the beginning of class, my teacher talked about planting apples, and you would own the tree because you did all the work to plant the apple and then you would own all the apples if you pick them all, because you add your labor into that.
PJ: Poet Phillis Wheatley relied on that theory to free herself in 1775. Schroeder, informed by Lydia Pallas’s article called “Untangling the Web of Music Copyright,” wrote an article with Fam-you Law Review vindicating Wheatley’s copyright as the source from which the modern Patent & Copyright Clause, and its limit, derives.
JS: The first author owned copyright in the West was Phillis Wheatley’s copyright, which arose alongside her friend, William Billings’s, earlier argument that if you were not granted copyright as author, that others would reap where you have sown. And that’s an argument that was made in 1772, before the American Revolution.
And it created an extreme shift in copyright in the entire Western world. It’s really complicated because the American Revolution happened, so how that all worked out, and there’s a Black woman named Phillis Wheatley involved, and it’s really complicated, and it involves race, and it involves gender, but the result was that copyright forever shifted after that to author-owned copyrights, instead of proprietor-owned copyrights.
The theory behind the proprietor and copyright, which existed before this was that the property–and that’s closely tied to physical property rights–property is owned by the king, and that any property rights that we all own as normal people, as subjects, is granted from the Crown, from the regal authority.
So, the idea of an artist’s labor labor vs. an artist’s expression actually leads us to the same conclusion, that it’s author-owned, that it comes from the author, that any of these rights–these hundreds of millions of dollars, sometimes billions of dollars, of rights–flowing into these record companies come from the author.
DJ: Artists, your music copyrights can fall in either of two buckets: musical composition and sound recording. Music composition protects an artist’s lyrics and music– essentially the song itself–but sound recordings copyrights, which historically have been unprotected, shield one particular recording of a musical work. If you own your recording copyright, you are free to reproduce the sound over and over. But having the musical composition copyright allows you to perform those songs publicly.
BH: However, as artists draw inspiration from each other and old beats get new lives on new songs, determining ownership can get a little fuzzy. Courts can struggle to identify an original work— or a copy.
DJ: To learn more about the process behind determining copyright infringement in sound recordings, we spoke with Sandy Wilbur, a forensic musicologist who testifies as an expert witness in infringement cases. Sandy has a rich background in music.
Sandy Wilbur (SW): First of all, I grew up learning how to play classical music. And I was also a folk singer as a teenager. I went to Sarah Lawrence college. I did graduate work, actually, at UC Berkeley, in the music department in composition. Then I went to UCLA and got a master’s in ethnomusicology.
DJ: Sandy’s role as forensic musicologist helps judges and juries make sense of the issues they’re dealing with.
SW: What do you want to do as a forensic musicologist is to show and teach people in a jury, for instance, how to hear the music and so that they can make informed decisions.
In terms of the forensic side of things, if I’m doing a sample analysis, for instance, I look for fingerprints, those similar elements, and I’ll discuss how I do that.
I actually recreate the sample from the source, from which the sample was supposedly taken for the potential infringement, you know, and then I compare them very closely and see whether they came from the same source.
But, who would need a musicologist?
If someone has been asked to create a musical work and get as close as possible to another reference track, that’s a red flag. That’s often a time that people will contact me.
If a work sounds like another work to somebody listening to it. They say, “oh, that sounds awfully close to that song,” then they would call me.
If they have secured a license–for instance, a sync license–to use a song in a recording, but not the recording or the sound of the artist’s voice, which are obviously other rights, that’s where I can add a great deal of value.
I also consult with attorneys, film, TV, gaming, internet companies, labels, music, publishers, ad agencies, artists, and music producers.
And I usually, as an expert, want to be very neutral. I come in, I do a methodology, I determine whether there is an infringement, and if there’s not, then I won’t go forward. If there is, then I do go forward and do a preliminary analysis and go further.
DJ: Sandy was called to be an expert witness in a case that has famously become known as the “Blurred Lines” case.
SW: I was called by the law firm. I said, don’t tell me what side you’re on. I listened to the two pieces of music. I wrote my opinion. And then, you know, it turned out that my opinion was the same as theirs. And I did not feel that these pieces of music were at all close. And I felt that this was something I was prepared to go forward with.
DJ: Sandy testified that “there are no substantial similarities between the melodies, rhythms, harmonies, structures, and lyrics of ‘Blurred Lines’ [by Robin Thicke] and ‘Got To Give It Up’” by Marvin Gaye. Williams v. Gaye. [885 F.3d 1150, 1161 (9th Cir. 2018).] When the court ruled that Robin Thicke, T.I., and Pharrell had indeed infringed Marvin Gaye’s copyright, the holding sent shockwaves through the legal community because of the broad protection it seemingly gave to the style or “groove” of a song.
Music: “Blurred Lines” by Robin Thicke
DJ: And when the line between inspiration and infringement got blurry, it raised serious legal issues. When can an artist uphold an exclusive right in common chord progressions? When do influences turn into appropriation? What aspects of a song will the jury find are protected by copyright?
Sandy helps shed some light on some key takeaways from the “Blurred Lines” case.
SW: One of the things that’s very difficult in some of these cases is that there are emotional elements that play in too, so that the facts aren’t the only things that are considered. And so, in many ways, a jury trial is a crapshoot. You have no idea. Um, it’s incredibly unpredictable. You have no idea how the result is going to happen. And, in this case, there were several takeaways that were important.
I think that–and again, these are my own opinions and these are only my assumptions, but they might very much apply–I felt that the jury didn’t like Robin Thicke, that they felt that the video was sexist, that they might’ve felt that there was some arrogance there.
The other thing that was important was that Robin Thicke, who actually had not written the song– Pharrell had written the song–but Robin had said that he wanted to make a song to the press– he told the press that he wanted to make a song like the Marvin Gaye song. And I think that the jury heard this and I think that intent, or influence, or inspiration, is sometimes considered a guilty plea.
So that is certainly one of the takeaways is that people do not give their influences anymore, even though obviously we’re all very much influenced by the music that we hear, and music plays a very big role.
And of course the other part of this is that the way we learn music in this culture is through imitation. Music has a dramatic effect on who we are, particularly the songs that you hear when you’re an adolescent and a young adult. They can very much help define the age that you’ve grown up in.
The other takeaway with the “Blurred Lines” case is that it elevated sound-alike. In this case, the only sound-alike element was the groove, or the feel, and that raised that particular aspect up to the level of copyright infringement. I think that’s extremely problematic and this is why the case was so controversial.
DJ: However, if the “Blurred Lines” case scared artists, the tide may be changing now. Have the courts been able to strike a balance or only add more confusion? Let’s see how the Ninth Circuit responded in an infringement case involving Madonna in 2016.
De minimis non curat lex, meaning “the law does not concern itself with trifles,” is a legal doctrine by which the court refuses to consider trivial matters. We all know there is nothing de minimis about Madonna, but how did this doctrine help her avoid liability in a music sampling dispute in California?
Music: “Vogue” by Madonna
DJ: This case is about Madonna’s song Vogue, which was released in 1990. VMG Salsoul claimed that Vogue copied a 0.23-second segment of horns from earlier song “Ooh, I Love It,” also known as “Love Break.” The court determined that the sound from “Love Break” was indeed physically copied to “Vogue,” but the Ninth Circuit Court applied the de minimis rule to sound recordings, holding that to succeed in such a claim it must be shown that the copying was greater than de minimis, or more than minimal.
The test is whether a reasonable juror can conclude that the average audience would be able to recognize the appropriation or not. Interestingly, VMG’s primary expert, a highly trained musician, originally misidentified the copied part which the court used in its reasoning to hold that an average audience would not be able to recognize the appropriation either. The standard became that if the public cannot recognize the appropriation, then the copier has not benefited from the original artist’s expressive content. Accordingly, only substantial copying constitutes copyright infringement.
Josh breaks down why this can be problematic.
JS: The court imported a de minimis limit, that’s used in the context of other copyright cases, into a sound recording sampling case, which is awkward. And the most obvious reason it is awkward is, was in judge Silverman’s descent, where he noted that for sound recordings, the issue is identical copying, um, not substantial copying.
And so, I think that’s kind of the crux of the awkwardness, is that you’re dealing with an identical copy of sound recording, and they’re applying a substantial copying test.
The issue of labor gets brought up because the copyright owner wants to internalize all of the value that they’ve put into creating this copyright. And so they’re giving this theory that the fact that I put in so much labor means I should get so much out of my investment of labor in this product. And that’s kind of the theory behind the case, behind this distinction.
And, over the years, especially from the 1970s on, when we have our modern Copyright Act, the U S Supreme Court has kind of weighed in and said copyright is limited to the expressions, to expressive work, because that’s what we care about in copyright. We care that new expressive culture is being created, valuable to the whole society. So, anything that’s beyond that expression is really not that valuable. It’s just extra.
DJ: In the multi-billion dollar music industry, this desire to encourage creativity and accessibility for new artists can conflict with the record label’s bottom line. While well-known and well-funded artists can afford to protect their work in court, up and comers may not be able to protect their original work at all.
JS: Sound recording right is almost always owned by the record company. So like, as in the case we’re discussing with Madonna, it’s a record company suing her and her record company, because the sound recording is usually transferred to the record company if you have a record deal.
So, the theory that protecting that right absolutely is going to help artists is kind of attenuated. A good example– there are some fun examples you can come up with, like Taylor Swift tried to get her sound recording rights back, and they are now owned by Shamrock Holdings, which is an American equity company owned by Disney, I believe. And, they bought it for hundreds of millions of dollars. So, any amount of sampling or whatever that Taylor Swift the artist is going to benefit from–getting royalties from that–would have to be secured through the contracts and not through absolute protection of sound recording rights.
BH: I feel like we’ve talked a little bit about record companies, potential harm on the artist. Does the artist have any potential harms that they should be concerned about perpetuating, or any infringements or overstepping that they should be aware of?
JS: VMG Salsoul was a case decided in 2016 about a song that was originally released in 1990, heavily inspired by the ball culture developed by trans and queer people of color in the 1980s. It was also decided before the first episode of the hit show Pose was released in 2018, about the 1980s and 1990s trans, queer, ball culture that inspired Vogue.
The de minimis test turned on the court’s view of whether a general audience, presumably an audience in 2016, would perceive the copying.
There’s a disagreement among the different characters in Pose about whether it’s good that Madonna took their moves, because if you watch that video, if you go back and watch “Vogue,” there are all these Black, probably queer but you don’t know, but Black people doing the Pose moves, and so there’s a discussion about whether Madonna was appropriating those and stealing them, because she’s a white woman and she’s not a part of the community. And you know, whether that was bad or good—you know, they’re getting exposure, they’re getting seen, you know, like they exist, which is a good thing.
So that discussion goes right hand-in-hand with the discussion of whether having super strong rights is good or having weak rights is good, and in general. So, if you’re the new guy and you haven’t been established yet, you really probably want a weaker system so that you can keep creating and you’re less likely to have a take down notice.
DJ: Joshua wants artists to understand that there there are two sides in this copyright world that seem to exist: the maximalists and the minimalists. And as their career evolves, an artist might find themselves on either side.
JS: There are people who feel strong kinship with the artist and their work that they’ve put into their art, and that their rights should be protected at the very strongest level.
And that’s kind of the Bridgeport case. They decided that every single little sample from a sound recording should be protected, and the theory is that that will protect an artist more, and that that’s really important. The copyright minimalists will disagree and say, actually, protecting an artists’ rights too much can block more art from being made.
BH: Or, think of it this way: Nashville, vs. LA.
JS: It’s kind of the way Nashville sees music vs., you know—so you can think of how a country music artist isn’t going to see sampling as much of a big deal as someone out in the West Coast, who sees more hip-hop, and more remixing going on.
There’s a lot of people who use samples from sound recordings to create new hip-hop songs and whatnot. And if you protect them too much, then you’re blocking new art from being created, which is against the whole purpose of copyright law.
DJ: Don’t let us or the court make up your minds. Listen for yourself to compare both songs. The original is “Love Break” by the Salsoul Orchestra.
Music: “Love Break” by the Salsoul Orchestra
DJ: Did you hear that pom-pom? That’s the alleged copied horn hit. Now this is “Vogue” by Madonna.
Music: “Vogue” by Madonna
DJ: Pom-pom. Well, I’m no expert but I can’t hear the similarity. What about you? Yes, I don’t either.
SW: I agree with the verdict on this. Um, I agree that it was de minimis. The expert in the case could not identify the horn part that was actually sampled. I think also the sound of that horn was generic. And this is where you have the question of unique vs. generic. Any horn sound of any preset of any instruments, synth or sampling instrument, would have been able to produce a sound equally similar. And so I think that, again, on the scale of unique to a generic, this was a very generic sound. And I think that the opinion was correct.”
This is a huge, large gray area, and I think that that’s the major thing, is the confusion that’s caused in terms of what is de minimis and what is not with samples. Some creators work very hard to create very unique sounds and use lots of effects on those sounds–of compression and EQ and all kinds of other things that will make that sound unique–and if somebody likes that sound and then takes it, they’re taking something that really took a lot of work to do. So, I think that that’s problematic, but that again goes back to the uniqueness of a particular sound and the work that went into it.
On the other hand, you’ve got hip-hop artists, some of whom do not play instruments, and who might be inspired by something, and certainly it’s happened many, many times that first-time artists, knowing full-well that they won’t get permission to use the sample, will go ahead and use it. And if, of course, the record becomes a huge hit, they end up losing almost all of the royalties that they might’ve gotten, because obviously it’s a lot more egregious after the fact. And so very often they lose almost everything that they gained in terms of potential royalties.
Attorneys– from the attorney’s standpoint, are these winnable cases, are these things that should go forward?
DJ: The Ninth Circuit recognized that this decision was in conflict with the Sixth Circuit’s bright-line rule in Bridgeport—a case we’ll discuss shortly—by applying the same copyright infringement standards as other artistic works to sound recordings. 17 U.S.C. §114 (b) is the provision that outlines the scope of exclusive rights in sound recording. The Ninth Circuit interpreted it narrowly by limiting rights of a copyright holder, whereas the Sixth Circuit read the same right more expansively, holding only the owner has exclusive right to sample.
Congress passed the Music Modernization Act in 2018, addressing many technological advancements in the music industry and where they fall under the law, but it does not make any mention of music sampling, thus creating a split between the circuits in terms of the de minimis defense which is yet to be resolved.
So, what happened in the Bridgeport case?
DJ: Rap group NWA produced the soundtrack for the 1998 film “I Got the Hook Up.” For the song “100 Miles and Runnin’,” NWA decided to sample a funky two-second guitar chord from The Prime Minister of Funk himself, George Clinton. Clinton opened Funkadelic’s song “Get Off Your Ass and Jam” with an electric guitar solo, strumming three high-pitched, attention-grabbing notes. When moviegoers heard the same looped, whirring sound in “I Got the Hook Up,” they were hooked, too.
Hear it for yourself.
Music: “100 Miles and Runnin’” by NWA
DJ: And now Clinton on the guitar:
Music: “Get Off Your Ass and Jam” by Funkadelic
DJ: And here’s NWA again:
Music: “100 Miles and Runnin’” by NWA
DJ: If you think that the chords in “100 Miles and Runnin’” are original and creative, congratulations, you and the district court would agree. On appeal, the Sixth Circuit found that NWA’s use of Clinton’s guitar recording is indeed copyright infringement, and it did not permit a de minimis defense. Following the Bridgeport case, the warning for copyrighting sound recordings was no longer “Thou Shall Not Steal.” Instead, musicians have an even stricter guideline to follow from the Sixth Circuit: “Get a license or do not sample.”
SW: Yes, I think that, unlike the Sixth Circuit that ruled in some of those other cases that taking is stealing, the Sixth Circuit really is saying, “if you take a penny candy out of the store, it’s still stealing. If you go 57 MPH in a 55 zone, that’s still stealing.” I think that the exception that was applied, because certainly these exceptions are applied after it’s already shown that something’s been infringed. And in this case, something was taken from that recording.
But, as I said, it was a generic sound that could have been gotten easily elsewhere. And I think that there has to be room for fair use and for de minimis exceptions.
DJ: Josh, how do you feel about the Ninth Circuit’s decision?
JS: I agree with the Ninth Circuit, but I don’t agree with applying the substantial copying tests directly over to an identical. That’s an identical copy. That’s what we’re dealing with. It could have been inspired by that and then made a new test or something.
And then I also really think it’s a problem to keep citing to Nimmer, as a legal authority. You can cite to him as dicta, that’s great, you know, you can cite to– there’s a bunch of other authors out there that also write on this, so, you can cite to them as well.
But at the end of the day, the court should really stand on its own two feet and say, this is what the Ninth Circuit thinks, not, this what Nimmer thinks, and we like him.
BH: So, how can the split between the Sixth Circuit and the Ninth Circuit be resolved?
JS: A duel to the death? Just kidding. I think if judges noticed that the distinction between artists’ expression and labor is non-sequitur, it would go a long way to coming together on what is really going on.
DJ: So, what does this all mean?
Essentially, a court’s treatment of the de minimis defense in copyright infringement suits depends on the circuit. The First, Second, Third, Fourth, Fifth, Seventh, Eighth, Tenth, and DC Circuits have yet to rule on any cases involving a de minimis defense. The Sixth Circuit applies a bright line standard, whereby “a sound recording owner has the exclusive right to ‘sample’ his own recording,” while the Ninth Circuit has explicitly allowed the de minimis defense when recordings don’t sound substantially similar to the original version. Lower courts in the Second, Fifth, and Eleventh Circuits have generally followed the Ninth Circuit rather than the Sixth Circuit, and that seems to be good news for artists and producers for whom this interpretation of copyright law would benefit.
Artists today don’t enjoy the creative liberty to sample as prolifically without regard to copyright laws that John Lennon did in the 1960s, but they do have the ability to sample some sounds without licenses. As the Bureau of National Affairs Patent, Trademark & Copyright journal warns, though, “Even where the de minimis exception to infringement applies, whether a use is de minimis is not a cut-and-dry analysis. Many artists may err on the side of getting a license whenever possible.“
BH: That was Sandy Wilbur and Josh Schroeder. Thanks for spending time with us!
JS: You know, the internet happens! Something changes that you just can’t foresee. And, and we don’t know what that next thing’s going to be. So, might as well stay humble and remember that we value artists, and that they’re creating a lot of value here and we love them and want them to keep going.
SW: I actually think differently; I think people are desperate to hear something different, not the same thing over and over again. I think that we’re at a point, musically, in the range of popular music, where we got to get away from some of the stuff that we’ve been doing and, you know, open it up and get some really new and cool things happening.
And I really, really, really encourage young people to do that because, because there’s a wealth of sounds and grooves and stuff out there that is absolutely beautiful and interesting. And I just feel like instead of going after the Holy Grail, we just live in such a litigious society and none of this stuff would be an issue if people weren’t making money at it.
I also think that the technology is advancing in such a way that musicians and songwriters are not getting compensated in any way that they should be because the streaming has made a great deal of money for the aggregators–the Spotifys, the YouTubes–and yet it’s really much more difficult now to have a full-time job as a songwriter, as an artist trying to break through all of the noise, and I think coming up with new ways of saying the same thing in different ways and really going in an opposite direction really, I think, would benefit music generally.