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The State of Sampling: The Landscape of Sampling and Copyright Law in 2023

/ Washington Journal of Law, Technology & Arts / 1 Comment

By: Cooper Cuene

De La Soul’s 1989 album 3 Feet High and Rising is a classic and hugely influential record that Rolling Stone recently described as “a landmark of the genre” when ranking it as the 33rd best rap album of all time. Until recently, however, a listener eager to give the album a listen would have quickly realized that it is difficult to find: Despite its classic status, until just last month, 3 Feet High and Rising was not available on any streaming platforms. This is because the album is densely packed with chopped up samples of other artists’ music that until recently either had not been or could not be cleared. Alas, the mere fact that sampling has been around since the dawn of rap music has not meant that the legal structure of the practice has improved for artists today. In a recent high-profile case, the late rapper Juice WRLD was forced to pay Sting 85% of the royalties for his song Lucid Dreams which sampled Sting’s Shape of My Heart. While it remains difficult (and expensive) for artists to use samples of existing music in new tracks, the state of sampling in 2023 is ripe for change. Multiple academics are eager to propose new regimes to regulate the sampling of other artist’s tracks, especially in a day and age where digital tools make the use of samples easier than ever.

The origins of the severe restrictions on the ability of producers to sample music can be traced back to Grand Upright Music v. Warner Bros, Inc., a 1991 decision by the Southern District of New York. This case set early precedent in its full-throated prohibition on sampling in music. The decision invoked the ten commandments in reminding the defendants “thou shalt not steal,” without contemplating that sampling could be a legitimate use of a copyrighted work. At issue was a sample on Biz Markie’s album I Need a Haircut, and the ruling immediately stunted the use of sampling throughout the music industry. As Pitchfork noted in their retrospective review of Public Enemy’s Fear of a Black Planet, following Grand Upright Music it became “forbiddingly difficult and expensive to incorporate even a handful of samples” into a new work. Unfortunately, later developments in the case law would be no kinder to the practice of sampling.

Later significant decisions concerning sampling were handed down in the 2000s and continued to be  unambiguous in their prohibition of the practice. Bridgeport Music, Inc. v. Dimension Films is a prime example of the way that courts have approached sampling over the last few decades. In that 2005 case, the defendant released a movie with a soundtrack containing a track that sampled a short portion of a song called Get Off Your Ass and Jam. The film contained only a four second section of a guitar riff from the original song that had been slowed and stretched to extend to a sixteen-bar loop. Despite the defendant’s argument that the small amount of the original track used was de minimis, the Sixth Circuit still found for the plaintiffs. Their opinion was resounding, commanding artists to simply “[g]et a license or do not sample.” Despite the inflexibility of this standard, it remains valid law today.

Bridgeport’s standard and its rigidity has unsurprisingly sparked calls for reform from musicians and academics alike. A common thread among calls for reform is that a reformed legal regime governing licensing should aspire to more actively promote the Constitution’s grant of power to Congress to “promote the progress of . . . useful arts.” One leading alternative regime is the idea that works that make use of samples include a clear attribution to the original song in their title, much like songs do with featured artists already. John Ehrett is a prominent supporter of this alternative, arguing in his 2011 paper “Fair Use and an Attribution-Oriented Approach to Music Sampling” that the music industry should take up citation standards for samples akin to the specialized citation styles present in other industries. Under Ehrett’s proposal, songs that include samples would include an indication in their titles that they do so, such as “Song A (samp. Song B).” This would ensure that the original work gets the necessary recognition while also providing a smoother sampling process for the artist behind the new work. Others have proposed a sliding licensing scale that requires artists to pay less for a license the more they transform the work. In either case, it has become clear to many artists and academics that the current regulatory regime governing samples is untenable and should be reformed to better enable new artists to create with existing works.

The Importance of Artwork Authentication in the Digital Era

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Photo by Steve Johnson on Pexels.com

By: Lauren Liu

The digital era has gifted the art world with new mediums, increased access to audiences, and innovative platforms for art exhibitions and transactions. For artists, the internet has provided  greater  access to the art marketplace and modern tools for bolder digital creation. However, some may also consider these changes troublesome. One of the biggest concerns in the art world is the threat of forgery. Although forgeries existed long before the digital era, modern technology has given art forgers and those who sell their products more temptation and opportunities to create and sell their forged works.

Now, more than ever, emerging artists need to protect themselves from forgeries, making the authentication of artworks increasingly crucial.

One important aspect of authenticating artwork is also known as provenance, or the documentation that outlines a particular art piece’s creator and history. A signed certificate of authenticity is one of the most common forms of provenance. For such documentation to establish authenticity, it should include the work’s title, date it was made, mediums, dimensions, and appraisal value. For example, a provenance could list an individual as the owner of the particular work of art in question in a museum exhibit catalog. This would constitute valid provenance. Most of the time, only names of previous owners do not constitute valid provenance. For art purchasers, they should consider getting full names and contact information for the current and previous owners to ensure the authenticity of the artwork in question. A “good provenance” is often taken as an indication of authenticity, because the longer the chain of ownership, the more likely that the artwork is authentic. Prominent or well-attended exhibitions of a picture are also taken as not only indications of value but also some evidence of authenticity and ownership, the logic being that an artwork would not be frequently displayed if its authenticity was questionable or if there was a dispute as to ownership. Provenance, even if not usable in court as evidence of authenticity or ownership, may still be admissible to oppose a new claim of ownership on the legal doctrine of laches (prejudice caused by undue delay by a claimant in coming forth with a claim).

Another popular method of authentication is the examination of the artist’s signature. Technology now allows fairly easy investigation of artworks and signatures via computerized databases and photographs to gather large samples of an artist’s works and signature for comparison. When creating signatures, artists should consider using a hand signature that is different from their legal signatures and is legible. Such a signature can later be thought of as a brand logo that makes artwork recognizable, and handwriting it makes it harder for forgers to replicate. Furthermore, artists should consider signing all works upon completion, preferably before the paint dries. By doing this, the artist essentially embeds the signature into the work. Artists should also use the same medium as the art to prevent the suspicion that the signature is forged or added by another person later. 

Authenticating art is important and worthwhile, especially for any artist who wants to build a recognizable brand and protect their reputation and livelihood. Understandably, the prevalence of digital art theft, fakes, forgeries, art scams, fraudulent art sales, and falsified certificates of authenticity can be discouraging. However, methods of authentication can help prevent the likelihood of such violations. While art thieves, plagiarists, and scammers continue to evolve as quickly as technology does, artists can also protect themselves using their own creativity and following legal advice on authentication.

Duped or Duplicated? The Difference Between A Counterfeit And An Accessible Homage

/ Washington Journal of Law, Technology & Arts / 1 Comment

By: HR Fitzmorris

Even non-legally versed consumers know that counterfeit or fraudulent products are illegal. In fact, some may have even experienced the euphoria of getting what they thought was a steal on a new designer product only to find out that it was a different type of ‘steal’ altogether. 

But what about “dupes”?

Unlike counterfeit products, which are copies of trademarked consumer goods meant to be passed off as the real thing, dupes (short for duplicate or duplication) are products that mimic other companies’ popular products without seeking to trick the consumer into thinking it’s the real deal. Dupes usually mimic high-end, in-demand goods and are sold at a much lower price-point—essentially the Gen Z version of a “knock-off.” Dupes have become extremely popular with the rise of social media advertising aimed at younger demographics. Teens that may not be able to afford a wildly trendy Cartier ring ($2,995) certainly may be able to scrounge up the change for the Amazon dupe ($12.99, with free next day shipping!).

The “Real” Fakes

To the everyday consumer the distinction between a counterfeit and a dupe may seem dubious, but in legal terms it’s significant. Counterfeiting is a concept used to “indicate an infringement of intellectual property rights, namely acts (use, manufacturing, or sale, for example) carried out without the consent of the intellectual property right holder.” “Counterfeiting” is the “act of making or selling fake products with the intent to deceive consumers. In the United States, it is illegal to produce, distribute, or sell counterfeit goods.” 

There are more issues with counterfeit goods outside of intellectual property infringement and their morally dubious nature. There are also possible health and safety issues with fake products that flout FDA or consumer protection standards.  There’s of course, the economic harm to legitimate businesses that lose money when their customers are lured away. The ever-present environmental harms associated with the flood of mass-produced, easily discarded items lurk behind the scenes. There’s even concern that counterfeit goods play a role in funding broader criminal enterprises.

Dupes: Duplication or Duplicity?

One of the important elements of counterfeiting is the “intent to deceive,” and this element is a significant piece of what separates dupes from counterfeits. Dupes do not claim to be the real-deal. In fact, part of their allure is that purchasers are getting the same or similar quality and functionality of the original without the original’s branding (and the associated price mark-up). As Claire Kane put it in her article for online publication MIC: 

While “fake” is a dirty word in fashion and “counterfeit” sounds unethical, the more neutral-sounding “dupe” suggests making savvy purchases and “somehow cheat[ing] the system” to get the look for less.

Companies hoping to crack down on dupes and knockoffs face an uphill battle in court. Without distinctive, trademarked branding that makes counterfeits fall within the reach of traditional trademark infringement, brands find little sympathy in the law. The current state of U.S. copyright law as it pertains to clothing and accessories has significant gaps. U.S. copyright law does not fully protect items defined as useful articles, which are “objects having an intrinsic utilitarian function” and “clothing” is the very first example of what counts. So, without the direct, obvious infringement on the branding, companies are unlikely to prevail.

Can You  Smell the Difference?

An especially interesting sector of dupes gaining popularity are designer fragrance dupes. Most dupes, like a certain handbag or shoe dupe, the knockoff brand doesn’t need (or want) to explicitly refer to the original product—it relies on the consumer to ‘get’ the reference. Not so with replica fragrance brands such as Oakcha, Dossier, or ALT Fragrances, which directly rely on references to their designer counterparts in their marketing. In fact, they often list the fragrance they were “inspired by” right on the bottle, or in the product description. So, what makes fragrance such a fertile ground for direct and blatant knockoffs without running afoul of trademark or copyright law? 

The answer is a combination of technology and law. First, new technological developments have made it extremely easy to reverse engineer specific fragrance formulations. Also, while the branding or packaging of a perfume may be eligible for copyright protection, a perfume’s scent is not because the scent serves as the “functional purpose of the product.” This makes it, under trademark law, ineligible for registration with the USPTO (functionality is a bar to registration). Perfumers can look to other avenues of protection such as obtaining a patent over the perfume formula, or trade secret protection, but these protections are difficult and costly to obtain and have drawbacks like disclosure. 

The legal landscape concerning dupes is unique and developing. It is inconsistent across products and complicated across industries. Whether you think dupes are simply knockoffs with a moral makeover or a legitimate industry that provides consumers with accessible choices, the law is unlikely to be the force that stems the tide.

Fan Creativity in Gaming and IP Infringement

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By: Yixin Bao

Gaming is known to be a big and rapidly growing industry. In recent years, the COVID-19 pandemic has contributed to a surge in gaming activity and revenue. Many people turn to gaming as a form of entertainment during their time at home. According to The NPD Group, the average time people spent on gaming rose from 12.7 hours per week in 2019 to 14.8 hours per week in 2020 and to 16.5 hours per week in 2021. Statista data further shows that the estimated global gaming market will increase to $268.8 billion annually in 2025 from $155.89 billion in 2020. 

There are many different types of gaming. The most commonly recognized ones include mobile gaming, console gaming, and PC gaming. In addition, new categories have emerged, such as esports and virtual reality gaming. With the increasing popularity of gaming and the increasing number of players, the gaming industry is expected to continue to grow in the future. 

As popularity of the gaming industry is on the rise, so are related intellectual property infringement issues. Intellectual property can include inventions, artistic works, designs, and names that are used in commerce. Normally, IP infringement includes patent infringement, copyright infringement, or trademark infringement. IP infringement can result in legal action taken by the owner against the infringing party, including but not limited to injunctions and monitary damages. 

A “fan” or “fanatic” is defined as someone who exhibits intense admiration and enthusiasm for something or somebody. Without a doubt, the gaming industry has its own fans. In fact, this number can be huge. For example, League of Legends (“LoL”) is known to be one of the most popular online games in the whole world. It is said that there are currently 180 million League of Legends players right now in 2023. Esports also heavily influenced the growth of the game’s popularity. Each year, the World Championship is organized so that teams from all different countries gather together and compete for the best team. In 2018, 99.6 million unique viewers watched the World Championship. Although it can be difficult to accuralty measure how many fans a game has, as some will not identify themselves as fans, it is reasonable to assume LoL’s fanbase is enormous. 

Many fans of the gaming industry make their own content. This includes, for example, creating new characters or inventing new storylines based on the original characters and artworks. On one hand, this benefits the gaming industry because fans give free promotion for the games. On the other hand, however, this is when the fan creativity ends, and IP infringement occurs. Kostya Lobov, a partner at a United Kingdom (“UK”) law firm, discussed the balance between fan creativity and IP infringement. Lobov admitted that companies didn’t want to alienate genuine fans, but some bad actors tried to profit from making use of the others’ IP rights. This might lead to trademark and copyright infringement. This also happens in the United States. 

Gaming companies often issue take-down requests in response to content created using their intellectual property. While some companies have a zero-tolerance policy and remove most potentially infringing content, others are more lenient and only take action when the content is being used for commercial purposes. Although fair use may allow for some creative use of copyrighted material without permission, it is important for fans to be cautious. Non-commercial use may support a fair use argument, but it is not definitive. Other factors, such as the nature of the copyrighted material, may also play a significant role. Overall, as long as one creates something that uses the gaming company’s IP rights, he or she bears a degree of risk of infringement. 

In conclusion, the companies in the gaming industry should consider carefully how to set up their line between fan creativity and IP infringement. There can be thousands of potential content that can technically infringe on the gaming companies’ IP rights. Enforcement can be infinite and difficult if the line is too blurry. The legal actions might also “promote” their games in a negative way. In the end, the gaming industry should learn how to coexist with fan creativity and learn to profit from the efforts of fans while at the same time protecting its own rights.

AI Art: Infringement is Not the Answer

/ Washington Journal of Law, Technology & Arts / 1 Comment
Photo by tom balabaud on Pexels.com

By: Jacob Alhadeff

In the early 2000s, courts determined that the emerging technology of peer-to-peer “file-sharing” was massively infringing and categorically abolished its use. Here, the Ninth Circuit and Supreme Court found that Napster, Aimster, and Grokster were secondarily liable for the reproductions of their users. Each of these companies facilitated or instructed their users on how to share verbatim copies of media files with millions of other people online. In this nascent internet, users were able to download each other’s music and movies virtually for free. In response, the courts held these companies liable for the infringements of their users. In so doing, they functionally destroyed that form of peer-to-peer “file-sharing.” File-sharing and AI are in not analogous, but multiple recent lawsuits present a similarly existential question for AI art companies. Courts should not find AI art companies massively infringing and risk fundamentally undermining these text-to-art AIs.

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Text-to-art AI, aka generative art or AI art, allows users to type in a simple phrase, such as “a happy lawyer,” and the AI will generate a nightmarish representation of this law student’s desired future. 

Currently, this AI art functions only because (1) billions of original human authors throughout history have created art that has been posted online, (2) companies such as Stability AI (“Stable Diffusion”) or Open AI (“Dall-E”) download/copy these images to train their AI, and (3) end-users prompt the AI, which then generates an image that corresponds to the input text. Due to the large data requirements, all three of these steps are necessary for the technology, and finding either the second or third steps generally infringing poses and existential threat to AI Art. 

In a recent class action filed against Stability AI, et al (“Stable Diffusion”), plaintiffs allege that Stable Diffusion directly and vicariously infringed on the artist’s copyright through both the training of the AI and the generation of derivative images, i.e., steps 2 and 3 above. Answering each of these claims requires complex legal analyses. However, functionally, a finding of infringement on any of these counts threatens to fundamentally undermine the viability of text-to-art AI technology. Therefore, regardless of the legal analysis (which likely points in the same direction anyways) courts should not find Stable Diffusion liable for infringement because doing so would contravene the constitutionally enumerated purpose of copyright—to incentivize the progress of the arts. 

In general, artists have potential copyright infringement claims against AI Art companies (1) for downloading their art to train their AI and (2) for the AI’s substantially similar generations that the end-user prompts. In the conventional text-to-art AI context, these AI art companies should not be found liable for infringement in either instance because doing so would undermine the progress of the arts. However, a finding of non-infringement leaves conventional artists with unaddressed cognizable harms. Neither of these two potential outcomes are ideal. 

How courts answer these questions will shape how AI art and artists function in this brave new world of artistry. However, copyright infringement, the primary mode of redress that copyright protection offers, does not effectively balance the interests of the primary stakeholders. Instead of relying on the courts, Congress should create an AI Copyright Act that protects conventional artistry, ensures AI Art’s viability, and curbs its greatest harms. 

Finding AI Art Infringing Would Undermine the Underlying Technology

A finding of infringement for the underlying training or the outputs undermines AI Art for many reasons: copyright’s large statutory damages, the low bar for granting someone a copyright, that works are retroactively copyrightable, the length of copyright, and the volume of images the AI generates and needs for training.

First, copyright provides statutory damages of $750 to $30,000 and up to $150,000 if the infringement is willful. Determining the statutory value of each infringement is likely moot because of the massive volume of potential infringements. Moreover, it is likely that if infringement is found, AI art companies would be enjoined from functioning, as occurred in the “file-sharing” cases of the early 2000s. 

Second, the threshold for a copyrightable work is incredibly low, so it is likely that many of the billions of images used in Stable Diffusion’s training data are copyrightable. In Feist, the Supreme Court wrote, “the requisite level of creativity is extremely low [to receive copyright]; even a slight amount will suffice. The vast majority of works make the grade quite easily.” This incredibly low bar means that each of us likely creates several copyrightable works every day. 

Third, works are retroactively copyrightable, meaning that the law does not require the plaintiff to have registered their work with the copyright office to receive their exclusive monopoly. Therefore, an author can register their copyright after they are made aware of an infringement and still have a valid claim. If these companies were found liable, then anyone with a marginally creative image in a training set would have a potentially valid claim against a generative art company.

Fourth, the copyright monopoly lasts for 70 years after the death of the author. Therefore, many of the copyrights in the training set have not lapsed. Retroactive copyright registration combined with the extensive duration of copyrightability means that few of the training images are likely in the public domain. In other words, “virtually all datasets that will be created for ML [Machine Learning] will contain copyrighted materials.”

Finally, as discussed earlier, the two bases for infringement claims against the AI art companies are (1) copying to train the AI and (2) copying in the resultant end generation. Each basis would likely result in billions or millions of potential claims, respectively. First, Stable Diffusion is trained on approximately 5.85 billion images which they downloaded from the internet. Given these four characteristics of copyright, it is likely that if infringement were found, many or all of the copyright owners of these images would then have a claim against AI art companies. Second, regarding infringement of end generations, Dall-E has suggested that their AI produces millions of generations every day. If AI art companies were found liable for infringing outputs, then any generation that was found to be substantially similar to an artist’s copyrighted original would be the basis of another claim against Dall-E. This would open them up to innumerable infringement claims every day. 

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At the same time, generative art is highly non-deterministic, meaning that, on its face, it is hard to know what the AI will generate before it is generated. The AI’s emergent properties, combined with the subjective and fact-specific “substantial similarity” analysis of infringement, do not lend themselves to an AI Art company ensuring that end-generations are non-infringing. More simply, from a technical perspective, it would be near-impossible for an AI art company to guarantee that their generations do not infringe on another’s work. 

Finding AI art companies liable for infringement may open them up to trillions of dollars in potential copyright lawsuits or they may simply be enjoined from functioning.

An AI Copyright Act

Instead, Congress should create an AI Copyright Act. Technology forcing a reevaluation of copyright law is not new. In 1998, Congress passed the DMCA (Digital Millennium Copyright Act) to fulfill their WIPO (World Intellectual Property Organization) treaty obligations, reduce piracy, and facilitate e-commerce. While the DMCA’s overly broad application may have stifled research and free speech, it does provide an example of Congress recognizing copyright’s limitations in addressing technological change and responding legislatively. What was true in 1998 is true today. 

Finding infringement for a necessary aspect of text-to-art AI may fundamentally undermine the technology and run counter to the constitutionally enumerated purpose of copyright—“to promote the progress of science and useful arts.” On the other hand, finding no infringement leaves these cognizably harmed artists without remedy. Therefore, Congress should enact an AI Copyright Act that balances the interests of conventional artists, technological development, and the public. This legislation should aim to curb the greatest harms posed by text-to-art AI through a safe harbor system like that in the DMCA.