Guest post by Mark Edward Blankenship Jr.

In creating the album “Hip-Hop Is Dead”, Nasir Jones, better known by his stage name Nas, postulated that hip-hop artists can help rebuild America by having more control in their music in response to a dying culture and a decline in innovation and political outreach. Yet, in subsequent interviews leading up to the album’s release, the title’s meaning began to shift and change as he responded differently at various junctures, eventually concluding in 2016 that “hip-hop is in a “better” place than it was a decade prior. Yet during that same year, the United States would end up facing a circuit split regarding the legality of digital sampling, which is still currently up for debate.

Back in 2005, the Sixth Circuit in Bridgeport Music, Inc. v. Dimension Films applied a per se infringement standard for sound recordings and digital sampling which many scholars criticized as being the death of hip-hop. Although the district court held that the sample was de minimis and “not ris[ing] to the level of a legally cognizable appropriation,” the Sixth Circuit refused to undertake the substantial similarity and de minimis inquiries when a defendant undisputedly samples a copyrighted sound recording. Even in light of the advances in technology, the growth of hip-hop, and the fact that legislation at the time had not taken the practice of digital sampling into consideration, the Court simply declared, “Get a license or do not sample. We do not see this stifling creativity in any significant way.” Over a decade later, the Ninth Circuit in VMG Salsoul however applied a de minimis standard to works where the “average audience would not recognize the appropriation” or, in other words, only if “ordinary observations would cause [the sample] to be recognized as having been taken from the work of another.”

The de minimis defense is neither a novel nor recondite concept of copyright law, especially outside of the United States. In Kraftwerk v. Pelham (also known as Metall auf Metall), Germany’s Federal Constitutional Court [hereinafter BverfG] applied a similar standard for sound recordings two days before VMG Salsoul. The BverfG deemed the practice of sampling as a fundamental right of the freedom of artistic expression, and that artists have a fundamental right to use publicly available works as an artistic basis for future works and that such right shall not be overruled or hindered by the sound recording producer’s exploitation interests. This was due in part to Bushido v. Dark Sanctuary (also known as Goldrapper), which stated that infringement may only occur if the music sample is the result of a creative activity and that the used portion reaches the minimum threshold relating to the protection of intellectual creations. Kraftwerk’s holding is currently up for debate by the CJEU, which is the highest court in Europe.

It must be noted that in addition to Germany having a similar copyright law system to that of the United States, the two nations have had many ties throughout music history. For instance, classical music in America had alternately imitated European models and liberated themselves from them. And two world wars deprived most of Germany’s own musical identity, especially when it came to German opera and Neoclassicism. Fortunately, postwar developments in technology led to the creation of such electronic music that would eventually lead to hip-hop’s genesis. Although German hip-hop managed to discover some of its own cultural identity, it nevertheless retained some of the aspects of American hip-hop, since the genre’s migration to Germany around the 1980s. But over time, German hip-hop began to individualize itself through the textual patterns of German lyricism and the influx of Turkish, Moroccan, and Macedonian immigrants.

Whether Germany’s stance toward de minimis and preserving the genre of hip-hop was influenced by their own history of struggles and severe losses in musical expression and creativity or influenced by American precedent, such as Bridgeport, the similarities between Kraftwerk and VMG Salsoul seem more than coincidental. Thus, the application of de minimis in sound recordings would overall give a better respect to hip-hop and its origins, not only as an “American” genre that has burgeoned internationally, but as an art form and a culture. Some scholars believe that the Supreme Court would most likely rule against Bridgeport due to the nation’s unyielding stance on the validity and importance of the de minimis defense and the Court’s aversion of bright line tests in intellectual property law. Though if the Court does happen to apply a bright-line test in digital sampling, then it is quite possible that the genre could slowly die out. Although admitting that the execution of what he tried to convey with his album had missed the mark, Nas’ warning about the potential death of hip–hop may be valid, just not the way he imagined.

Mark Edward Blankenship Jr. is a 3L at The University of Kentucky College of Law, where he currently serves as Operations Manager for Volume 107 of the Kentucky Law Journal. This past summer, her interned with the Arts & Business Council of Greater Nashville’s Volunteer Lawyers and Professionals for the Arts. Prior to attending law school, he graduated magna cum laude at Georgia Southern University with a B.A. in Music.

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