Kanye West and Others Sued Over Sound Sampling
By: Anny Mok
Earlier this month, family members of the late David Pryor filed a lawsuit against Kanye West and others for copyright infringement. The plaintiffs claim that Kanye West’s song “Gold Digger” was an unauthorized sampling of several songs in a 1974 recording of Pryor’s. Other defendants include other record labels that allegedly copied David Pryor’s sound recordings. Such unauthorized copying is an infringement on Pryor’s right to reproduce his work.
One of a copyright owner’s exclusive rights is the right of reproduction. Section 114 of the Copyright Act gives a copyright holder the exclusive right over exact reproductions and works where “the actual sounds fixed are rearranged, remixed, or otherwise altered in sequence or quality.” It also expressly states that a copyright owner of a sound recording is protected against recordings that “directly or indirectly recapture the actual sounds fixed in the recording.” This means that copyright infringement can occur when the actual fixed sounds in a protected sound recording is re-recorded in a new record without the copyright owner’s permission.
Sound sampling is an example of recapturing a sound recording’s fixed sounds. This practice involves the exact duplication of portions of a sound recording and including these portions in a new recording. Sound sampling is particularly popular in the hip-hop industry where clips of previous songs are remixed into new ones.
Courts have varied on how substantial the copying has to be in order to constitute infringement. Where the duplication is de minimis, courts are sometimes reluctant to find that the similarity is substantial enough. These are instances where the sample only played a small part in creating an entirely new song. Other courts, such as the Sixth Circuit, have imposed a bright line rule. In Bridgeport Music v. Dimension Films, the Sixth Circuit held that there is infringement regardless of how little of the recording is copied. It found that sound sampling is different from infringement of musical compositions and that the substantial similarity test is precluded in such circumstances. Any unauthorized sample is an infringement. The Court explained that if someone wants to use a sample, then a license should be obtained from the copyright owner.
The inconsistencies of courts make it difficult to predict what the California court will find in Trena Steward, et al v. Kanye West, et al. David Pryor’s voice can allegedly be heard for about thirteen seconds into “Gold Digger” and then throughout the record, especially when “get down” plays in the song. If that is the case, perhaps the court will find that there is enough substantial similarity. Alternatively, if it imposes a bright line rule like the Bridgeport court, then the unauthorized use itself will constitute infringement.