Bright line or bum rap? The Sixth Circuit holds that digital sampling infringes the Copyright Act.(Bridgeport Music, Inc. v. Dimension Films)

Musical compositions have always been protected by federal copyright. But sound recordings, the embodiment of those compositions in a recorded performance, were not given federal copyright protection until the 1971 amendments to the Copyright Act which granted protection to sound recordings fixed and first published on or after February 15, 1972. This amendment granted the owner of the recording very specific rights that are not coextensive with the rights that authors of other works enjoy under the act.

In many respects, the protection granted by the copyright in a sound recording is more limited than the protection that the Copyright Act confers on other works. For example, the only exclusive public performance right that sound recordings enjoy is the right to perform the work publicly by means of a digital audio transmission (e.g., internet streaming). This is why radio stations can broadcast sound recordings without seeking permission or paying a royalty to the owners of the recordings (as opposed to the owners of the underlying compositions who are compensated through the blanket licenses that performing rights societies such as ASCAP and BMI administer).

The right to control the preparation of derivative works based on a sound recording is specifically limited by Section 114(b) of the Copyright Act to "the right to prepare a derivative work in which the actual sounds fixed in the sound recording are rearranged, remixed, or otherwise altered in sequence or quality." [17 U.S.C. [section] 114(b).] In a decision that some may find ironic, this very specific limitation on the exclusive right to prepare derivative works caused the Sixth Circuit Court of Appeals, in a case of first impression, to adopt a "bright line" rule that digital sampling, a technique that is widely used in rap, hip hop and other genres of popular music, violates the …