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Going Gaga for Music Samples

Written by Beth Hutchens
Hutchens Law Office, PLLC
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Posted: January 28, 2013 @ 12:30 pm
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Love her or hate her, Lady Gaga certainly provides good fodder for news stories and blog topics.  For some reason, an infringement suit against her that started back in 2011 is now the copyright topic du jour.  A Chicago musician called Rebecca Francescatti says that Mother Monster stole part of her song  “Juda” for the hit song “Judas”.  More specifically, the complaint alleges that a particular portion of “Judas” violates Francescatti’s exclusive rights of reproduction, distribution, performance, and preparation of a derivative work.  But before we get to that, we’ll need to wade through a bit of a semantics morass.

This suit is being couched in terms of plagiarism. This is incorrect.  Plagiarism is taking someone else’s work or ideas and passing them off as your own. While the term may be linguistically correct, it is not the appropriate way to frame the issues here.  The actual basis for the suit is copyright infringement so let’s be sure to call it what it is.   While each allegation merits its own separate analysis, the biggie here is whether the accused portion of Gaga’s song is substantially similar to the relevant portion of Francescatti’s song. Sweet!  Today we get to talk about sampling- my musician friends are going to be all over this one.

Music sampling – simply put – is taking a portion of another person’s song and using it in your own without permission.  It’s not exactly a new thing; sampling in one form or another has been around since at least the 1960s.  But the practice really took off with the advent of hip hop and rap music in the 1980s.  In fact, Acuff Rose v. Campbell, (the fair use case to end all fair use cases) stemmed from a sampling issue.  While music sampling is now accepted as an established musical practice, it remains a highly contentious legal issue.  Sampling is a double whammy in terms of infringement because the Copyright Act (17 U.S.C. et seq.) gives music two separate protections- one for the composition itself  (the music and lyrics) and the other for the actual sound records.  Thus, sampling a song without permission can find a defendant defending all sorts of causes of action — as is the case in the Lady Gaga suit.  For good reason, most sampling cases – even really popular songs like “Super Freak /U Can’t Touch This” and “Under Pressure /Ice Ice Baby” – settle out of court.  But guidance on the issue isn’t completely lacking, and as we’ll see yet again, the law is kind of a mess.  Scratch that — it’s really a mess.

To prove up a copyright infringement claim, the plaintiff has to show ownership of the work, that the defendant had access to it, and that there is substantial similarity between the original work and the allegedly infringing work.  The ownership issue in this case is easy — Francescatti registered  “Juda” back in 1999.   The big inquiry here is if the  “Juda” and “Judas” are substantially similar.   Substantial similarity is a judicially created doctrine that attempts to provide guidance in determining if infringement has occurred.  It is an analysis that is done as a matter of course in sampling cases.  Unfortunately, there is absolutely no jurisdictional congruency whatsoever and to call it a complex analysis is putting it lightly.  Substantial similarity has been described as a doctrinal mess and this is not far off the mark.  There are entire journal articles and book chapters dedicated to this subject alone, so today we’ll just focus on what the Seventh Circuit does because that’s where the Gaga case is being heard.

With respect to copyright infringement, a plaintiff generally needs to show that the defendant had access to the work and that the works are “substantially similar”. The split among the jurisdictions is how to determine either.  “Access” in the Seventh Circuit really means “opportunity to copy”.  It is a fact dependent inquiry that is proven with evidence.  This is likely why Francescatti’s former bass player Brian Gaynor is named in the complaint (he’s now employed by a music company that wrote 17 songs on Gaga’s “Born This Way” album).  Francescatti has to show that Gaga had access to the work and it appears that she is attempting to do this by demonstrating Gaga’s relationship with Mr. Gaynor.   But the work isn’t done yet.  If Francescatti can show that Lady Gaga could have copied “Juda”, she will still have to show that Lady Gaga did copy “Juda”.  The Seventh Circuit’s traditional approach to this was to require the plaintiff to show that the defendant had access to the original work and that the two works were “substantially similar”. Previously, the Seventh Circuit would apply an “ordinary observer” test to determine substantial similarity.  This meant that the court would compare the works side-by-side and ask if random folk on the street would think that the defendant misappropriated plaintiff’s work by “taking material of substance and value.”  But that all went out the window in August 2012 with the Kayne West case Peters v. West, where the Court of Appeals for the Seventh Circuit court rejected the previous notion that if there is strong proof of access, a plaintiff only has to show weak similarity.

After Peters, an infringement plaintiff must still prove the defendant had the opportunity to copy the work but now must also provide evidence of similarity e.g., if  “two works share enough unique features to give rise to the breach of duty not to copy another’s work”.  Basically, the Seventh Circuit now requires a plaintiff to show that the defendant actually copied the work by pointing out the similarities. Plus, it appears that comparing two works side by side in their entireties is no longer how it’s going to be done in the Seventh Circuit.  It looks like an infringement plaintiff can now trot out experts and dissect the works to create a hodge-podge of isolated similarities that could theoretically amount to a breach.  Some may argue that just comparing the titles of “Juda” and “Judas” is sufficient evidence because they only differ by one letter, but this is normally not enough.  A title may be a start, but there is much more to a song — the lyrics, tempo, tune, and arrangement must also be compared. The “enough unique features” standard from the Peters opinion theoretically permits cumulating the title and any other individual similarities between “Juda” and “Judas” to show infringement as opposed to a “total concept and feel” approach. This could be great news for Francescatti because – I’ll admit it – I don’t see how the songs in their entireties are even remotely close, but then, I’m not a music expert and neither song is in a genre I find even slightly tolerable.

As a final thought, remember that we’ve only talked about the way the Seventh Circuit does an infringement analysis with music sampling.  There would be an entirely different approach and potentially an entirely different outcome in another circuit.  Are we beginning to see why most of these cases settle? I think we are. Will the Gaga/Francescatti case settle?  Magic 8 Ball says that they will fight this one out to the bitter end. So now after all that, and now that we’re all experts on the substantial similarity test in the Seventh Circuit, let’s have some fun. Have a listen to “Juda” and “Judas.  What do you think?  Do they have enough similarities (cumulative or otherwise) such that Mother Monster is toast?    Even though they’re both long gone, what would you think if you had to judge the similarity between these two songs?  Or these?  Good luck getting either of those earworm-y riffs out of your head. You’re welcome.

I’ll leave you with this.  Even though neither really applies here, there are two notable defenses to accusations of copyright infringement in music sampling cases- fair use and de minimis.  We’ve touched on fair use before with our discussion of Olympic Parody and the 2 Live Crew.  De minimis, in addition to being yet another cool Latin phrase lawyers like to throw around, derives from “de minimis non curat lex” – the law does not concern itself with trifles.  If a sample is used in such an insignificant matter or if the violation is so trivial, then theoretically, a defendant can escape liability.  De minimis can also come up where the amount copying is so small that a substantial similarity test is difficult to apply.  I’ve recently seen some weird theories that say you can use any music as long as it’s less than seven seconds, or if it’s less than 10% of the whole work, or if the use is no more than four notes of the original.  No. No, no, no!  These all likely derive from the de minimus defense and they are all wrong.  The defense is a multifactor analysis that is heavily fact and jurisdiction dependent.  Presuming your use qualifies under de minimus or fair use can get you in serious trouble.  Case in point – the Sixth Circuit jettisoned de minimus as a defense and found a defendant liable for using two seconds of another’s work.  Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005).  Naturally, the music industry is having kittens over this one.   The take home lesson for musicians is do not, repeat, DO NOT assume your use is defensible without at least asking a lawyer first.  Chances are it isn’t.   Just lifting a track (no matter how short) is an extraordinarily bad idea and a likely ticket for a ride on the infringement expressway. Just get permission, pay for the license, find something under creative commons, or use something else.  I can assure you those options are much, much cheaper than lawyer’s fees and the damages you’ll get smacked with.

Ear worms!


About the Author

Beth is an Intellectual Property attorney licensed to practice before the United States Patent and Trademark Office and the State Bar of Arizona. She received her B.S. in Biological Sciences from CSU, Sacramento and her J.D. from Whittier College School of Law, where she earned a Certificate in Intellectual Property. She enjoys being a solo practitioner in Phoenix, Arizona.

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