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When it comes to unlicensed samples, New York federal judge Lewis Kaplan has limits. On Monday, he dismissed TufAmerica’s lawsuit claiming that Jay Z and his record companies violated copyright by sampling an “oh” on the song, “Run This Town,” released on the album The Blueprint 3.
Yes, that’s right. One syllable.
The plaintiff alleged that the “oh” came from an older sound recording entitled “Hook & Sling Part 1.”
In Judge Kaplan’s ruling, he steps over the question of whether “oh” deserves copyright protection.
“The word ‘oh’ is a single and commonplace word,” writes the judge. “Standing alone, it likely is not deserving of copyright protection. … As this motion may be resolved on other grounds, however, the Court need not decide whether the word ‘oh,’ as it appears the Composition, is protectible.”
But oh, that doesn’t mean that the judge is letting the plaintiff off the hook on claiming infringement from a single syllable. That’s because there’s still the issue of whether Jay Z’s “Run This Town” is substantially similar to the prior song, and as part of the analysis, the judge takes on the quantitative significance of “oh” in the plaintiff’s work.
“Were the Court to find ‘oh’ quantitatively significant to Hook & Sling Part I or to Eddie Bo’s performance thereof, it in effect would read the quantitative significance element out of the substantial similarity test,” continues the judge. “This the Court will not do.”
The same goes for qualitative significance.
“Plaintiff’s tautological argument that ‘oh’ must be qualitatively significant to Hook & Sling Part I and to the Hook & Sling Master because defendants’ sampled it more than 40 times in Run This Town misunderstands copyright law generally and the substantial similarity test in particular,” writes the judge, later adding, “If the original recording has been sampled at all … the fact of the matter is that the samples appear only faintly in the background of Run This Town and are, at best, only barely perceptible to the average listener.”
Although the judge doesn’t put down any bright lines, the ruling should be compared to a 2006 ruling involving a N.W.A. rap song that sampled a Funkadelic riff. In that case, Bridgeport Music v. Dimension Films, the 6th Circuit Court of Appeals wouldn’t tolerate the sampling and looping of a two-second guitar chord. An appeals court wrote at the time, “Get a license or do not sample. We do not see this as stifling creativity in any significant way.”
Here, the judge shrugged off TufAmerica’s argument to set the bar low in order to protect “impecunious artists” from the “unlicensed use” of their work by “successful artists and increasingly-large record labels and music publishers.”
Judge Kaplan writes that every case is fact specific and not every copying of a part of another artists work is infringement. In the judge’s own words, “plaintiff improperly conflates factual copying and actionable copying.”
This, by the way, is turning into a good week for Jay Z on the legal front. Not only did he win this lawsuit, but in another intellectual property claim over whether he stole the logo for his record label, a magistrate decided he wouldn’t be forced to give a deposition. The only rub is that he is precluded from testifying at trial. In other words, he won’t be able win the jury’s hearts with his charisma.
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