Have you ever noticed that, in re-recording her catalog, Taylor Swift did not use the snare beat from her original recordings, say, from “Red”? And why is Danger Mouse’s The Grey Album not on Spotify? Is sampled music being censored? Consider the Danger Mouse example. He spent 100 hours making The Grey Album, a mash-up of The Beatles’ “White Album” and Jay-Z’s Black Album, and although he released it online, it is nowhere to be found. Why can’t anyone listen to The Grey Album?
Music sampling law protects the copyright owner of the sound recording and composition at the expense of the sampling artists and their listeners. The Beatles sent cease and desist letters and Danger Mouse’s album was blacklisted. Both the Ninth and Sixth Circuits would agree that without a license, Danger Mouse’s mashup sampling was unlawful. But what if he had only used a snippet of The Beatles’ album?
This Comment argues that Congress should amend Section 114(b) of the Copyright Act to make clear that a de minimis defense is permitted for digital music sampling pursuant to the Ninth Circuit’s ruling in VMG Salsoul, LLC v. Ciccone, in which the court held that a de minimis defense is available in a music infringement lawsuit over a sampled split-second horn hit. The Sixth Circuit’s bright-line rule in Bridgeport Music, Inc. v. Dimension Films of no de minimis defense, by contrast, (1) is out of sync with copyright law; (2) reinforces structural racism; and (3) stifles artists’ creative sampling of music. This Comment will explore how the Sixth Circuit wrongly jettisoned the de minimis defense in sound recording infringement cases and why Congress should adopt the Ninth Circuit’s reading of the copyright statute permitting the de minimis defense for digital sampling.