A federal appeals court has ruled that rap artists should pay for every musical sample included in their work -- even minor, unrecognizable snippets of music.
Lower courts had ruled that artists must pay when they sample other artists' work. But it has been legal to use musical snippets -- a note here, a chord there -- as long as they weren't identifiable.
The decision Tuesday by a three-judge panel of the 6th Circuit Court of Appeals in Cincinnati gets rid of that distinction. The court said federal laws aimed at stopping piracy of recordings apply to digital sampling, and it ordered the case back to a lower court for rehearing.
"If you cannot pirate the whole sound recording, can you 'lift' or 'sample' something less than the whole? Our answer to that question is in the negative," the court said.
"Get a license or do not sample. We do not see this as stifling creativity in any significant way."
Some observers questioned whether the court's opinion is too restrictive, especially for rap and hip-hop artists who often rhyme over samples of music taken from older recordings.
"It seems a little extreme to me," said James Van Hook, dean of Belmont University's Mike Curb College of Entertainment and Music Business. "When something is identifiable, that is the key."
The case is one of at least 800 lawsuits filed over lifting snippets of music from older recordings for new music.
The case centers on the NWA song "100 Miles and Runnin'," which samples a three-note guitar riff from "Get Off Your Ass and Jam" by '70s funk-master George Clinton and Funkadelic.
In the two-second sample, the guitar pitch has been lowered, and the copied piece was "looped" and extended to 16 beats. The sample appears five times in the newer song.
NWA's song was included in the 1998 movie "I Got the Hook Up," starring Master P and produced by his movie company, No Limit Films.
No Limit Films has argued that the sample was not protected by copyright law. Bridgeport Music and Westbound Records, which claim to own the copyrights for the Funkadelic song, appealed the lower court's judgment in favor of No Limit Films.
The lower court in 2002 said the riff in Clinton's song was entitled to copyright protection, but the sampling "did not rise to the level of legally cognizable appropriation."
The appeals court disagreed, saying a recording artist who acknowledges sampling may be liable, even when the source of a sample is unrecognizable.
Noting that No Limit Films "had not disputed that it digitally sampled a copyrighted sound recording," the appeals court sent the case back to Federal District Court.
Richard Busch, attorney for Westbound Records and Bridgeport Music, said he was pleased with the ruling.
Robert Sullivan, attorney for No Limit Films, did not return a phone call to his office.