Miles Kim
February 7, 2024 would have been the fiftieth birthday of James Dewitt Yancey, better known as “J Dilla.” It was also the eighteenth birthday of J Dilla’s influential hip hop masterpiece, Donuts, regarded as one of the greatest albums of all time.[1] Three days later, many in the hip hop community mourned the eighteenth anniversary of J Dilla’s tragic death.[2]
During his short career, J Dilla was a hot commodity among hip hop royalty, producing songs for A Tribe Called Quest, Common, D’Angelo, and countless others.[3] He worked until his untimely death. His friends brought J Dilla his Boss SP-303 sampler and a record player to the hospital, where he would mix and match records into the musical collage that is J Dilla’s Donuts.[4]
One of the records he would sample from his hospital bed was a song by 10cc called “The Worst Band in the World.”[5] Fourteen years after the release of Donuts, 10cc filed suit against the deceased J Dilla, alleging a copyright infringement for using the unauthorized sample.[6] Similar lawsuits have been filed against many artists, including Biz Markie, Jay Z, and Kanye West.[7]
Sampling “involves taking part of an existing sound recording and incorporating it into a new work.”[8] Sampling has been present throughout the history of hip hop.[9] Today, an estimated 20-25% of songs on today’s Billboard Hot 100 contains a sample.[10]
Generally, the use of an unlicensed sample can infringe upon two rights protected by U.S. copyright law—copyright in the sound recording, and copyright in the composition.[11] In order to demonstrate noninfringement, musicians can allege that their use of an unlicensed sample was de minimis, or too small or minor to qualify as infringing.
There is little dispute as to whether the de minimis doctrine can apply to the composition copyright, which protects the notes on the page and the accompanying words of a given musical work.[12] In Newton v. Diamond, the Ninth Circuit held that the Beastie Boys’ sample of James Newton’s “Choir” was a de minimis taking. Notably, the Beastie Boys had a license to the sound recording.[13]
The Sixth and Ninth Circuits are split as to whether the de minimis doctrine can apply to the sound recording copyright, which protects the fixation of performances.[14] In Bridgeport Music, Inc. v. Dimension Films, the Sixth Circuit found that N.W.A.'s unlicensed two-second sample of a Funkadelic track was infringing. The court held that the de minimis doctrine can never apply to the sound recording copyright. In doing so, the court wrote: “Get a license or do not sample. We do not see this as stifling creativity in any way.”[15]
In VMG Salsoul, LLC v. Ciccone, the Ninth Circuit found that Madonna’s use of a 0.26-second horn blast from a Salsoul Orchestra song was non-infringing.[16] In doing so, the Ninth Circuit split with the Sixth Circuit, holding that the de minimis doctrine could apply to the sound recording copyright.[17]
Which interpretation of copyright law is preferable? My bias should be clear from my introductory three-paragraph ode to J Dilla. There are consequences to awarding monopolies over such tiny segments of musical works. The Sixth Circuit’s decision led to the emergence of “sample trolls,” who accumulate copyrights for the purpose of filing suits against successful musicians. The plaintiff in Bridgeport Music has shown itself to be one of the first sample trolls in the industry.[18]
The Sixth Circuit’s ruling makes it difficult to create sample-based instrumental hip hop. While some established artists can afford to pay the $10,000-35,000 licensing fee to clear a sample, newer artists are effectively deprived of the tool entirely. It is hard not to worry that the Sixth Circuit greatly diminishes the possible world of hip hop. In other words, it is difficult to see how the Sixth Circuit’s decision works to “promote the Progress of Science and the useful Arts.”[19]
Of course, the Sixth Circuit’s reasoning is not meritless. The court weighs considerations on both sides, ultimately ruling against sampling under their literal statutory interpretation.[20] However, it is difficult for me to stomach a decision that makes a genre of music artificially impossible to make for all but the wealthiest. As a lawsuit against J Dilla remains pending eighteen years after his death, I worry about how difficult it would be to create an album like Donuts given the current state of copyright law. I want the law to adapt so that the next J Dilla can emerge and continue J Dilla’s musical legacy.
[1] See The 500 Greatest Albums of All Time, Rolling Stone (Dec. 31, 2023), https://www.rollingstone.com/music/music-lists/best-albums-of-all-time-1062063/ [https://perma.cc/8E36-L79J] [https://web.archive.org/web/20240208212140/https://www.rollingstone.com/music/music-lists/best-albums-of-all-time-1062063/].
[2]Remembering J Dilla Today on What Would Have Been His 50th Birthday (Born 2/7/74), Albumism (Feb. 7, 2024), https://albumism.com/celebrations/happy-birthday-j-dilla [https://perma.cc/3SGN-BARA] [https://web.archive.org/web/20240207053837/https://albumism.com/celebrations/happy-birthday-j-dilla].
[3] Andrew Barber, The 50 Best J Dilla Songs, Complex (Feb. 7, 2012), https://www.complex.com/music/a/andrew-barber/the-50-best-dilla-songs [https://perma.cc/E55Q-FEGL] [https://web.archive.org/web/20240207053519/https://www.complex.com/music/a/andrew-barber/the-50-best-dilla-songs].
[4] J Dilla, Your Favorite Producer’s Favorite Producer, May Have Passed On, But His Musical Legacy Will Never Fade Away, Stones Throw (Apr. 5, 2006), https://www.stonesthrow.com/news/fantastic-voyage/ [https://perma.cc/M6NL-TKQ9] [https://web.archive.org/web/20240207053431/https://www.stonesthrow.com/news/fantastic-voyage/].
[5] Samantha Hissong, J Dilla Died in 2006. He’s Now Being Sued for Using a 1974 Rock Sample, Rolling Stone (Sep. 1, 2020), https://www.rollingstone.com/pro/news/j-dilla-10cc-sample-lawsuit-workinonit-1053913/ [https://perma.cc/6CUX-BP3W] [https://web.archive.org/web/20240207053226/https://www.rollingstone.com/pro/news/j-dilla-10cc-sample-lawsuit-workinonit-1053913/].
[6] Id.
[7] Douglas Markowitz, The 10 Most Controversial Samples in Hip-Hop History, Grammy Awards (Aug. 10, 2023), https://www.grammy.com/news/10-most-controversial-hip-hop-samples-history-lawsuits-videos [https://perma.cc/6QXG-H6CW] [https://web.archive.org/web/20240207053051/https://www.tiktok.com/embed/v2/7332172358335139104?lang=en-US&referrer=https%3A%2F%2Fwww.grammy.com%2Fnews%2F10-most-controversial-hip-hop-samples-history-lawsuits-videos&embedFrom=oembed].
[8] Sampling, Interpolations, Beat Stores and More: An Introduction for Musicians Using Preexisting Music, U.S. Copyright Office (Dec. 2021), https://www.copyright.gov/music-modernization/educational-materials/Sampling-Interpolations-Beat-Stores-and-More-An-Introduction-for-Musicians-Using-Preexisting.pdf [https://perma.cc/AA2S-PQU9] [https://web.archive.org/web/20240207053001/https://www.copyright.gov/music-modernization/educational-materials/Sampling-Interpolations-Beat-Stores-and-More-An-Introduction-for-Musicians-Using-Preexisting.pdf].
[9] Elias Chavez, The Evolution of Sampling in Hip-Hop, from the Sugarhill Gang to a Tribe Called Quest, Bus. Insider (Sept. 8, 2023), https://www.businessinsider.com/history-music-sampling-hip-hop-2023-8#the-sugarhill-gangs-famous-song-apache-is-built-from-hercs-breakbeat-2 [https://perma.cc/8FZZ-SG3X] [https://web.archive.org/web/20240207052812/https://www.businessinsider.com/history-music-sampling-hip-hop-2023-8#the-song-has-been-sampled-in-some-of-the-most-popular-hip-hop-songs-including-fight-the-power-by-public-enemy-the-theme-music-from-the-1989-film-do-the-right-thing-directed-by-spike-lee-6].
[10] Insanul Ahmed, Same Old Song: Hip-Hop Sampling in 2023, Complex (Nov. 13, 2023), https://www.complex.com/music/a/insanulahmed/hip-hop-sampling-2023-interview [https://perma.cc/RZ7T-TAY6] [https://web.archive.org/web/20240207052629/https://www.complex.com/music/a/insanulahmed/hip-hop-sampling-2023-interview].
[11] Ben Challis, The Song Remains the Same: A Review of the Legalities of Music Sampling, Wipo Mag. (Nov. 2009), https://www.wipo.int/wipo_magazine/en/2009/06/article_0006.html [https://perma.cc/6HAQ-K6MU] [https://web.archive.org/save/https://www.wipo.int/wipo_magazine/en/2009/06/article_0006.html].
[12] U.S. Cᴏᴘʏʀɪɢʜᴛ Oғғɪᴄᴇ, Cᴏᴘʏʀɪɢʜᴛ Rᴇɢɪsᴛʀᴀᴛɪᴏɴ ᴏғ Mᴜsɪᴄᴀʟ Cᴏᴍᴘᴏsɪᴛɪᴏɴs ᴀɴᴅ Sᴏᴜɴᴅ Rᴇᴄᴏʀᴅɪɴɢs, https://www.copyright.gov/register/pa-sr.html [https://perma.cc/B6K7-CH4U] [https://web.archive.org/web/20240207052249/https://www.copyright.gov/register/pa-sr.html].
[13] Newton v. Diamond, 388 F.3d 1189, 1190 (9th Cir. 2003).
[14] U.S. Cᴏᴘʏʀɪɢʜᴛ Oғғɪᴄᴇ, Cᴏᴘʏʀɪɢʜᴛ Rᴇɢɪsᴛʀᴀᴛɪᴏɴ ᴏғ Mᴜsɪᴄᴀʟ Cᴏᴍᴘᴏsɪᴛɪᴏɴs ᴀɴᴅ Sᴏᴜɴᴅ Rᴇᴄᴏʀᴅɪɴɢs, https://www.copyright.gov/register/pa-sr.html [https://perma.cc/B6K7-CH4U] [https://web.archive.org/web/20240207052249/https://www.copyright.gov/register/pa-sr.html].
[15] Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 801 (6th Cir. 2005).
[16] VMG Salsoul, LLC v. Ciccone, 824 F.3d 871 (9th Cir. 2016)
[17] Id. at 887.
[18] Tim Wu, Jay-Z Versus the Sample Troll, Slate (Nov. 16, 2006, 1:50 PM), https://slate.com/culture/2006/11/the-shady-one-man-corporation-that-s-destroying-hip-hop.html [https://perma.cc/BS3N-EWG9] [https://web.archive.org/web/20240207052100/https://slate.com/culture/2006/11/the-shady-one-man-corporation-that-s-destroying-hip-hop.html].
[19] U.S. Const. art. I, § 8, cl. 8.
[20] See Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005).