Last week, a mysterious company, Bridgeport Music Inc., sued hip-hop mogul Jay-Z, accusing him of breaking the law when he recorded his 2003 single "Justify My Thug." The song is an obvious nod to Madonna's "Justify My Love," but she is not the plaintiff. Instead, Bridgeport is suing because Jay-Z did something that is normal in hip-hop: sampling. He took a few notes, looped them in the background, and produced the tune. Bridgeport claims to own those notes, and is demanding a fortune in damages and a permanent ban on the distribution of the song.
Bridgeport is an unwelcome addition to the music world: the "sample troll." Similar to its cousins the patent trolls, Bridgeport and companies like it hold portfolios of old rights (sometimes accumulated in dubious fashion) and use lawsuits to extort money from successful music artists for routine sampling, no matter how minimal or unnoticeable. The sample trolls have already leveraged their position into millions in settlements and court damages, but that's not the real problem. The trolls are turning copyright into the foe rather than the friend of musical innovation. They are bad for everyone in the industry—including the major labels. The sample trolls need to be stopped, either by Congress or by court rulings that establish sampling as a boon, not a burden, to creativity.
Bridgeport is a one-man corporation formed in 1969 and owned by a former music producer named Armen Boladian. It has no employees and no reported assets other than copyrights. Technically, Bridgeport is a "catalog company." Most catalog companies are in the relatively quiet business of licensing rights for television commercials, cover songs, and selling sheet music to interested fans. But Bridgeport has figured out a far more lucrative business model—trolling for sampling cash.
George Clinton is otherwise known as the King of Interplanetary Funk and, along with the late Rick James, the world's most famous funk musician. In the 1970s, Boladian and Bridgeport managed to seize most of the copyrights to Clinton's songs. How exactly they did so is highly disputed. However, in at least a few cases, Boladian assigned the copyrights to Bridgeport by writing a contract and then faking Clinton's signature (as described here). As Clinton put it in this interview, "he just stole 'em."
Bridgeport, if a thief, stole the winning ticket. The Clinton sounds it acquired went on to be among the most widely sampled in the rap music of the 1980s and 1990s. Sampling is as elemental to the genre as beats, beefs, or bragging, and Clinton's sonic creations were a major part of Public Enemy's debut, and were also used heavily by N.W.A., Dr. Dre, Biggie Smalls, and other rap pioneers. Often the sampling is virtually impossible to detect—listen to this sample in this N.W.A song. *
The rise of rap presented a golden opportunity for Bridgeport. After years of demanding fees, in 2001, Bridgeport launched nearly 500 counts of copyright infringement against more than 800 artists and labels. The company, suing in Nashville, Tenn., located every sample of Clinton or other owned copyrights it could find. It took the legal position that any sampling of a sound recording, no matter how minimal or unnoticeable, is still a violation of federal law. Imagine that the copyright owner of TheLord of the Rings had sued every fantasy book or magazine that dared used the words elf, orc, or troll. That gives you an idea of the magnitude of Bridgeport's campaign.
Since 2001, Bridgeport's shotgun approach has led to many dismissals and settlements, but also two major victories. First, in 2005, Bridgeport convinced Nashville's federal appellate court to buy into its copyright theory. In that case, Bridgeport Music v. Dimension Films, the defendants sampled a single chord from the George Clinton tune "Get Off Your Ass and Jam," changed the pitch, and looped the sound in the background. (The result is almost completely unrecognizable—you can listen to it here). The Sixth Circuit created a rule: that any sampling, no matter how minimal or undetectable, is a copyright infringement. Said the court in Bridgeport, "Get a license or do not sample. We do not see this as stifling creativity in any significant way."
Then, in March of this year, Bridgeport cashed in. It convinced a court to enjoin the sales of the best-selling Notorious B.I.G. album Ready to Die for illegal sampling. A jury awarded Bridgeport more than $4 million in damages.
These troll lawsuits may sound unattractive. But is Bridgeport perhaps serving the goals of copyright—fostering creativity—in some less obvious way? One idea is that Bridgeport is more Robin Hood than troll, stealing from lazy, rich rappers like Jay-Z to channel money back to deserving artists like George Clinton. That argument would make some sense if making rap music were easy, or if Clinton or other artists were in some way the beneficiary of the lawsuits. But neither is true. Bridgeport and other trolls do take from the rich. But they keep the money.
If the benefits are abstract, the costs imposed are obvious. Sample trolls have already changed the face of hip-hop. Early rap, like Public Enemy, combined and mixed thousands of sounds in a single album. That makes sense musically, but it doesn't make sense legally. Thousands or even hundreds of samples, under the Bridgeport theory, mean thousands of copyright clearances and licenses. Today, Public Enemy's breakout album, It Takes a Nation of Millions to Hold Us Back, would cost millions to produce or, more likely, would never have been made at all. *