Jay-Z A single syllable could hold major implications for the future of music sampling.

The disputed syllable, “oh,” is the subject of a recent lawsuit filed against rapper Jay-Z, Atlantic Records, and Roc-a-fella. The suit alleges that Jay-Z took the micro-sample from bluesman Eddie Bo’s “Hook & Sling Part I” for use on the hit song, “Run This Town.” In a motion to dismiss filed September 9th, the defendants argue the alleged sample does not infringe copyright law. They contend the use is too insignificant to violate a copyright. They employ two defenses to support this point. First, they argue that no infringement occurred because the disputed lyric is too unoriginal to warrant protection. Second, they argue the sampling is de minimus because it lasts for less than a second. Such fleeting use does not deserve protection because of its negligible nature. They do not argue whether the sound actually derived from the song alleged.

The lawsuit touches a cultural nerve. In the 1980s, music sampling pervaded the hip-hop genre. Artists could stitch hundreds of beats together to form complex music tracks. But a series of lawsuits in the 1990s virtually halted this practice. Artists can no longer snip samples from different songs without obtaining permission for every one of them.

In addition to these legal obstacles, “sample trolls” now burden the music industry. As their name suggests, sample trolls are the music industry’s analog to notorious “patent trolls.” TufAmerica, the plaintiff in the Jay-Z lawsuit, is one such example. These companies acquire portfolios of old music rights. Then they employ aggressive litigation to extract millions in settlements from musicians for alleged infringement of copyrighted notes.

Jay-Z’s lawsuit enters a tenuous legal landscape for digital sampling. Some courts have deemed the short musical sampling of phrases insignificant to the original song and thus unprotected by copyright. But the Sixth Circuit disregarded that de minimus analysis in its landmark Bridgeport Music v. Dimension Films ruling. Here, the defendants looped a single chord from George Clinton’s “Get off Your Ass and Jam” in the background of their song. The Sixth Circuit held any sampling regardless of how minimal constitutes copyright infringement. Further, the court told the defendants to “get a license or do not sample. We do not see this as stifling creativity in any significant way.”

Yet studies suggest otherwise. Establishing legal and logistical hurdles to sampling deters artists from trying. Without the fluidity and accessibility to explore a vast library of sounds, the art of remixing has chilled. Indeed, the minute nature of the disputed sound seems a compelling reason to grant the dismissal. However, focus on the sound’s length and generic nature ignores other implications. If Jay-Z embedded this snippet from another artist, the use suggests a textual or nostalgic purpose behind the appropriation. If that is the case, then the note, while perhaps not quantitatively “significant,” constitutes a deliberate point in the song’s constellation of beats. Regardless, the case highlights copyright law’s unsatisfying answers to balancing creative expression with protecting creative expression.

Kelsey Zottnick

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One Response to Jay-Z Fights One-Syllable Infringement Lawsuit

  1. Dustin Kovacic says:

    Great post Kelsey. I find it very interesting that the 6th Circuit takes a differing view than that of the 9th Circuit. You would think that California being the predominate site of the entertainment industry would guide other courts throughout the country, but I guess that isn’t so here. I wonder if the 9th Circuit is in the process of making changes towards de minimis infringement.