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Court records show hip-hop stars Jay-Z and Kanye West have settled a sampling lawsuit brought by Syl Johnson. In October, the soul musician accused the pair of illegally sampling his song in a track entitled "The Joy," which appears on their joint album Watch the Throne.
The duo had denied the claims in December, arguing that the sample was not protected by copyright law. But they appear to have had a change of heart. Why?
Probably because there is no conclusive rule stating sampling is illegal.
This is true even though there have been multiple -- possibly dozens -- of sampling lawsuits in the last decade. The practice has become widespread, and lawsuits have followed. However, the courts are anything but settled on the issue.
There are two main defenses to sampling lawsuits: fair use and de minimis use. Fair use is a highly complicated analysis that requires the weighing of a number of factors. There is no bright-line rule when it comes to sampling.
The same goes for de minimis use. When a litigant asserts this defense, he is arguing that the sampled portion is so negligible that the court shouldn't even bother with a fair use analysis. There is no copyright infringement to be found.
Courts are split on whether the de minimis defense applies in sampling lawsuits. In a 2004 ruling involving the Beastie Boys, the Ninth Circuit found the defense to exist. In a 2005 ruling involving N.W.A., the Sixth Circuit eliminated the de minimis defense with respect to sampling.
It's very difficult to determine whether sampling is illegal, or if in the instant case, it is valid under either of the above defenses. For this reason, it made sense for Jay-Z and Kanye to settle the sampling lawsuit before it got even more out of hand.
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