Rapper Chocolate Ice’s new release Golfin’ Wit My Glock is a smash hit with nearly 400,000 digital downloads in its first week. The success of the song has not escaped the notice of recording artist Bill Board, who believes that Ice has ripped off five notes from his 1980’s country hit single, “Now That We’re Both Miserable, I Hope You’re Happy.” When confronted about the obvious similarity between the two songs, Ice claims the bassline riff is “different” and, even if they are the same, there’s nothing illegal about copying five notes. Board disagrees and files a lawsuit alleging a copyright violation. Who wins?
“Sampling” is using portions of a prior recording and incorporating them into a new song. The practice has become commonplace in the music industry. While there is no set number of music notes that one can use without permission, it is believed that if a musician samples four notes or less, they may be protected under what’s known as the “fair use” doctrine. This speculation is derived from a case in which the Beastie Boys sampled a 6 second segment of jazz flutist James Newton’s composition entitled, “Choir.” In that case, the appellate court upheld the trial court’s dismissal of Newton’s infringement claim holding that the use of “three notes separated by a half-step over a background C note” was not enough to uphold Newton’s claim. However, the same court noted that “one note is enough to land you in court where the true test of infringement is whether the sampled portion of the music is substantially similar to the original. Fair use is merely a defense once you get there.” Based on the facts above, Ice is likely going to have to share in the riches from his new hit single.
Tilting the Scales in Your Favor:
Always obtain permission from the copyright owner. In connection with a music copyright claim that will usually involve obtaining a license from the song writer/publisher as well as the record company/recording artist. And, in case you’re curious, Vanilla Ice’s sampling of David Bowie and Queen’s song “Under Pressure” resulted in a large out of court settlement.
Newton v. Diamond, 349 F.3d 591 (9th Cir. 2003).