Several high-profile copyright cases have been filed in recent months against major performers, accusing them of taking a portion, or "sample," of one sound recording and reusing it as an instrument or a sound recording in a different song or piece, without authorization.
As
discussed in detail on Wikipedia, sampling was originally developed
by experimental musicians in the 1960's. However, hip hop
music was the first popular music genre based around the art of
sampling - being born from 1970's DJs who experimented with
manipulating vinyl on two turntables.
Sampling
is now most often done today with a computer program. However, vinyl
emulation software may also be used, and turntablists continue
to sample using traditional methods. The inclusion of sampling tools in
modern digital production methods increasingly introduced sampling into many
genres of popular music, as well as genres predating the invention of sampling,
such as classical music, jazz and various forms
of traditional music.
Several recent cases have been filed against established performers, premised on allegations that such activity constitutes a clear form of copyright infringement -- even when the alleged infringement occurred decades ago, and was only recently discovered.
It is likely that sophisticated software tools have allowed performers to go back and analyze musical catalogs to locate potential infringement that may have been harder to audibly detect with the "naked ear."
Jay-Z, Kanye West, Mark Wahlberg, Run D.M.C. and many others face a new copyright infringement lawsuit brought by Twilight Records and Syl-Zel Music which claim that the 1967 song "Different Strokes" that was performed and recorded by Syl Johnson was sampled without permission in a variety of derivative works in the 1990's.
Several recent cases have been filed against established performers, premised on allegations that such activity constitutes a clear form of copyright infringement -- even when the alleged infringement occurred decades ago, and was only recently discovered.
It is likely that sophisticated software tools have allowed performers to go back and analyze musical catalogs to locate potential infringement that may have been harder to audibly detect with the "naked ear."
Jay-Z, Kanye West, Mark Wahlberg, Run D.M.C. and many others face a new copyright infringement lawsuit brought by Twilight Records and Syl-Zel Music which claim that the 1967 song "Different Strokes" that was performed and recorded by Syl Johnson was sampled without permission in a variety of derivative works in the 1990's.
According
to the suit which was filed in federal district court in Chicago, Usher
infringed upon the Different Strokes copyright with his 1993 song "Call Me
a Mack," while Public Enemy allegedly made use of a copyrighted riff
without authorization on multiple hit songs including Fight the Power.
Both Mark
and Donnie Wahlberg are accused of sampling the same tunes on "The Last
Song on Side B." Run D.M.C. faces similar allegations for its songs
"Naughty" and "Beats to the Rhyme." All of the
accused songs were released in the 1990's.
The
Different Strokes melody has previously been the subject of similar litigation
against more recent music performed by Jay-Z and Kanye West. A lawsuit filed in 2011 had claimed that those performers improperly sampled
the tune on their "Watch the Throne" album. That
suit was settled confidentially.
Putting
aside the merits of the factual allegations, the latest cases may face an interesting
legal problem.
The U.S.
Copyright Act imposes a three year statute of limitations on civil copyright infringement claims from when the claim "accrued," barring a copyright owner from seeking damages for infringement that occurred in the past.
However,
where alleged infringement is ongoing, federal courts have split on whether any
bar applies, and whether the more flexible and
equitable "estoppel by laches" defense should apply.
Furthermore, there is some dispute as to when the statute of limitations begins to run, given modern technology. Usher's song "Call Me a Mack" was released in 1993, two decades ago. However, the use of iTunes and cell tone ringtones have created a robust new marketplace for such a song.
Furthermore, there is some dispute as to when the statute of limitations begins to run, given modern technology. Usher's song "Call Me a Mack" was released in 1993, two decades ago. However, the use of iTunes and cell tone ringtones have created a robust new marketplace for such a song.
The Ninth
Circuit Court of Appeals, based in California, ruled in 2012 that an admitted 13-year delay in filing a copyright lawsuit after infringement had been discovered, barred all relief against the defendant.
Other
courts have held that the doctrine does not apply in this context, because
there is nothing in the text or legislative history of the U.S. Copyright Act
that suggests that Congress ever intended for an equitable defense to apply. It is unclear if the Supreme Court
will resolve this split among the federal appeal courts on how to measure a purported delay.
Injunctions against further use of the song by these third parties could present a concern, but equally worrisome to these defendants is the fact that the copyright owner has sought an accounting for all past profits, as well as reimbursement of its' attorneys' fees.
Injunctions against further use of the song by these third parties could present a concern, but equally worrisome to these defendants is the fact that the copyright owner has sought an accounting for all past profits, as well as reimbursement of its' attorneys' fees.
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