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Sampling Litigation in the Limelight 

Sugarman, Robert G., 3/16/92 N.Y. L.J. 1 (1992)

Two significant cases involving “sampling” – the practice of using a portion of a previous sound recording in a new recording – shared the limelight at the federal district courthouse in New York City. In one (Grand Upright), a federal judge rendered the judge rendered the first decision in a sampling lawsuit. In the other (Tuff ‘N’ Rumble Management), allegations against a premier rap artist may have opened yet a new chapter in the continuing saga of sampling litigation.

In Grand Upright, the court ruled that the entire controversy could be reduced to a single issue: who owns the copyrights to the underlying composition and the master recording from which the sample was derived? Since the plaintiff owned valid copyrights to both the song and the master recordings at issue, the court found that the Defendant had was guilty of copyright infringement. Furthermore, since the Defendant knew they were copying, sterner measures were called for – in this case, a criminal proceeding pursuant to section 506(a) of the Copyright Act. However, the case was settled out of court before the criminal action was filed.

Tuff ‘N’ Rumble Management involved the unauthorized use of a drum track sample. While clearances for samples containing music passages have been secured as a matter of practice, the same has not always been true of drum performances. Given the technology, it is often difficult to discern whether a particular drum track is “live,” sequenced, or sampled. A successful plaintiff must adduce proof that the performance or sample in question was undoubtedly his work and that defendant had access to it.

Both Grand Upright and Tuff ‘N’ Rumble Management will have far reaching implications on the artistic decisions that go into the creation of rap music, the manner in which rap records are produced and whether or not licenses for sample of pre-existing works are secured. While the music industry has responded by creating licensing scenarios and mechanisms to ensure compliance with the copyright laws, these 2 cases serve as a reminder of what may await artists and labels that do not plan ahead and secure all necessary approvals prior to the release of an album.

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