by Katherine Imp
Cirque du Soleil sued Justin Timberlake last week, alleging that the singer, along with his writers, producers and recording company, “sampled” a portion of Cirque’s song, “Steel Dream” without permission on his 2013 song, “Don’t Hold the Wall”.
Before reading any further, listen to the first 20 seconds of “Steel Dream.” Now listen to Timberlake’s song, beginning at 4:04.
If you were on a jury, would you say that Timberlake and his team used a portion of Cirque’s song in “Don’t Hold the Wall”?
The answer is undoubtedly yes, even if the “Justin Timberlake fan” inside of you is telling you otherwise. Those 15-second tracks are nearly identical.
So can Timberlake and his team get out of this mess?
To answer that question, you first need to understand how “sampling” fits into US copyright law.
“Sampling” occurs when one artist takes a portion of another artist’s song and reuses it in a new song. Note, however, that sampling does not necessarily require use of a pre-existing recording.
Here, Cirque du Soleil has a copyright interest in the composition (codified in 17 U.S.C. § 102(2)) of “Steel Dream” and a second copyright interest in the sound recording (codified in 17 U.S.C. § 102(7)). Thus, even if Timberlake did not use Cirque’s pre-existing recording (that you just listened to on YouTube), he could still be liable for copyright infringement for use of the underlying melody or lyrics.
In the early days of hip hop, no one bothered to get a license to “sample” another artist’s work, but once the music business tanked, publishers and recording companies needed to find more ways to make money. Thus began the trend of requiring a license to “sample” the work of another artist and slapping a copyright infringement claim on anyone who refused to obey.
Under Section 106(2) of Title 17 of the United States Code, the owner of a copyright has the exclusive rights “to prepare derivative works based upon the copyrighted work.” The argument being made by publishers and recording companies (and Cirque du Soleil) is that “sampling” is a derivative work and thus protected under copyright law.
Timberlake now has three arguments he can make:
1. No Copyright Infringement
To establish infringement, Cirque du Soleil must prove that it has a copyright interest in “Steel Dream” and that Timberlake copied elements of the work that were original. “Copying” requires Cirque to prove that Timberlake’s song is “substantially similar” to Cirque’s song and that Timberlake had access to the song.
Timberlake could argue that the similarity is not substantial and that no one from his team saw the show or heard Cirque’s song prior to creating “Don’t Hold the Wall”.
2. Fair Use
17 U.S.C. § 107 allows one artist to use the copyright of another artist without permission in certain, limited situations. In determining whether a particular use is “fair”, courts will consider: the purpose of the use; nature of the copyrighted work; the amount used; and the effect the use has on the copyrighted work’s commercial success.
Timberlake would have to admit to using “Steel Dream” without permission, but could defend himself by arguing that the use was “de minimis” and did not hurt Cirque’s ticket and record sales.
3. De Minimis
Some courts have argued that “de minimis” is available as an alternative to fair use in cases where the violation is “so trivial that the law [should] not impose legal consequences.” Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70 (2d Cir. 1997).
Timberlake could argue that the copyright infringement should be privileged because of the extremely limited use, the lack of harm on Cirque’s sales and the excessive cost of adjudication (a lawsuit like this could cost hundreds of thousands of dollars).
While these may seem like good arguments, courts have been hesitant to side with defendants. In Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005), the court ruled that the defendant’s sampling of a two-second guitar chord constituted copyright infringement.
Getting back to my question above: Can Timberlake and his team get out of this mess? Unlikely.
The legal system around sampling is a complete disaster. According to Variety, Timberlake has had several copyright infringement claims filed against him just in the last year alone.
None of the courts want to be responsible for establishing a bright-line rule, and none of the publishers or recording companies want to force the courts to establish a bright-line rule (e.g., by suing the creator of Girl Talk, whose entire work is made up of sampling) for fear that the resulting rule will not be in their favor. And most artists don’t have the money to fight the legal battle so they pay the license fee or wait to get sued and then settle as quickly as possible.
All I can say is, I’m glad I’m not a musician in 2016.
Katherine Imp is a transactional entertainment attorney at Cummins & Associates, Ltd., specializing in production legal, film finance and intellectual property matters. Contact Katherine at @KatherineImp or firstname.lastname@example.org.
Disclaimer: The information in this column is intended for general information purposes only and should not be construed as legal advice.
To see the original post, and similar articles, check out Katherine Imp’s SCREEN Magazine column, Street Legal.