©2017. Published in Landslide, Vol. 9, No. 5, May/June 2017, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.
In the middle of 2016, the Ninth Circuit Court of Appeals muddied the waters on the legality of digital sampling of sound recordings through its opinion in VMG Salsoul, LLC v. Ciccone.1 There, for the first time, an appellate court held that the rule of de minimis non curat lex applied to digital sampling, in direct conflict with the ruling of the Sixth Circuit Court of Appeals on precisely the same point.2 The Sixth Circuit, in Bridgeport Music, Inc. v. Dimension Films, had adopted a bright-line rule: “Get a license or do not sample.”3 Notably the ruling of the Sixth Circuit (which covers Nashville) had been on the books for over 10 years, without causing undue disruption for the rather large music industry within the court’s jurisdiction. Now the landscape for the practicing attorney in advising clients in the music business has shifted. The answer to the question of “can I sample this?” will depend in large part on where you live (or where you’re sued) and how likely your court of appeals is going to follow the reasoning on either side.
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