AS GOES BIGGIE, so goes the state of intellectual property.
One week ago, a Tennessee jury found that the Notorious B.I.G. used a sample from the Ohio Players song “Singing in the Morning” on his 1994 debut album, Ready to Die. Biggie, who was murdered in 1997, had not bothered to obtain a license to use that sample. As a result, the jury awarded Westbound and Bridgeport, the companies that hold the rights to the Ohio Players song, $4.2 million. The judge believed that even this sum wasn’t steep enough, so, in order to “vindicate the integrity of the copyright law,” he ordered a halt to all sales, everywhere, of Ready to Die.
For all practical purposes, one of the great rap albums of all time has now been airbrushed from history. Poor Biggie, persecuted by The Man right to the very end. Yet what seems like a straightforward intellectual property dispute–sampling is stealing another’s work, right?–is anything but.
Armen Boladian owns both Westbound and Bridgeport, the plaintiff companies in the case, and his fight against Biggie was only one small skirmish in his wider war against the practice of sampling. In May 2001, Boladian filed a 500-count suit against 800 defendants, mostly record and film companies, which he alleged had used intellectual property he owned without first receiving a license. The complaint was nearly 1,000 pages long. The case would become known as Bridgeport v. Dimension.
Boladian was fighting against the legal concept of de minimis use. The de minimis standard, elucidated in cases such as 1998’s Sandoval v. New Line, held that some uses of intellectual property were so small as to be beneath consideration. For example, in Sandoval, the court held that the fleeting appearance of a copyrighted photograph in the context of the movie Se7en did not rise to violation of the photographer’s intellectual property.
The nub of Boladian’s argument was that this legal standard simply should not exist, because, well, just because. The trial court found against Boladian in the most definitive terms, noting that his complaint was “replete with diatribes against the music industry, but lack[ed] concrete facts directed at specific defendants” and that he “took every opportunity to inundate the court with paperwork, yet many of these motions were hastily prepared and often lacked sufficient legal or factual support.”
Boladian and his attorneys were engaged not in a principled fight for intellectual property, but in a massive bit of nuisance litigation, figuring that most of the big companies they were suing would simply settle out of court. They were right: The majority of the 800 defendants settled.
But in the process of this shakedown, Boladian received an unexpected bonus. The U.S. Court of Appeals for the Sixth Circuit decided to hear an appeal of Bridgeport v. Dimension, which centered on the sampling of three notes of a George Clinton song. In April 2004, the Sixth Circuit reversed the lower court, found for Boladian, and established a new test for sampling that eliminated the de minimis standard. They announced a simple and endearingly concise “bright line”: “Get a license or do not sample.”
Like good judicial activists, the Sixth Circuit admitted in its decision that “we realize we are announcing a new rule” and that, of course, in making up this rule “we followed no existing judicial precedent.”
Two years later, this airtight legal reasoning would be used to decide the fate of Ready to Die.
William Patry, a copyright lawyer and law professor, wryly observed that “while finding that a sampling of three notes was infringement, the court demurred on whether sampling one note would be.” Patry also noted the absurdity of the new bright-line test, asking why it should not extend to “You want to parody a work, get a license; you want to write a book review, get a license; you want to quote three words from a poem in a movie, get a license.”
Mind you, intellectual property is serious stuff. It’s the only right enshrined in the body of the Constitution. But to show the slipperiness of the issue, consider that the Recording Industry Association of America–the scourge of Napster and champion of artists’ rights–filed an amicus brief in Bridgeport in favor of sampling.
Even if you’re not a devotee of the Notorious B.I.G.–and believe me, it’s your loss if you aren’t–sampling is just the tip of the digital-intellectual-property iceberg. Lurking beneath the water’s surface is the big question: digital file sharing.
As it stands today, copyright law is reasonably clear that digital file sharing can be illegal. But law follows morality, which is shaped in response to technology. The fight over how to protect intellectual property didn’t start with the Internet. As Walter Benjamin made clear in his 1935 essay “The Work of Art in the Age of Mechanical Reproduction,” each new medium forces us to readjust our stance toward the rights of the creator–from the lithograph to the photograph to the phonograph to the MP3.
In every instance, the old regime tries desperately to cling to its status by hobbling the new technology. And in every case so far, technology has won out. Eventually, the law will follow the popular mores, and sampling and file sharing and other forms of digital manipulation will become ordinary parts of the cultural landscape, the way magnetic tape, celluloid, TV, and radio did.
And, hopefully, when that day comes, Ready to Die will reemerge from the legal mists.
Jonathan V. Last is online editor of The Weekly Standard and a weekly op-ed contributor to the Philadelphia Inquirer. This essay originally appeared in the March 26, 2006 edition of the Philadelphia Inquirer.
