A mere two-second unauthorized sample of a guitar solo from Funkadelic's "Get Off Your Ass and Jam" is enough to constitute copyright infringement of the recording, a federal Court of Appeals in Nashv

A mere two-second unauthorized sample of a guitar solo from Funkadelic's "Get Off Your Ass and Jam" is enough to constitute copyright infringement of the recording, a federal Court of Appeals in Nashville ruled yesterday (Sept. 7). The decision creates a new rule regarding the use of "brief" samples; to this point, infringement in such cases occurred only if a substantial portion (in quantity or quality) of the work was copied.

The new ruling applies only to sound recordings; it does not affect the underlying compositions.

The sample of George Clinton's music was used in N.W.A.'s rap song "100 Miles and Runnin' " as part of the soundtrack to the 1998 film "I Got the Hook Up," released by No Limit Films. The case is one of 476 lawsuits filed by Clinton's label, Westbound Records, and others against approximately 800 defendants for nearly 500 samples allegedly used without permission.

The District Court granted a summary judgment to No Limit Films in October 2002, holding that the two-second sample was too small -- de minimis -- to constitute infringement. The appellate court, however, made a distinction between copyrights in the musical composition (the song) and the sound recording.

Under copyright law, owners of sound recordings cannot legally prevent anyone from recording the same sounds, the court noted. However, they may prevent others from physically "sampling" the exact sounds from the master recording. Artists who wish to use a sample from someone else's recording must "get a license or do not sample," the court stated.

The decision does not affect the District Court's ruling that Clinton's composition was not infringed. That part of the ruling was not appealed by the publisher.

"This appears to be a very broad ruling that may impact other cases involving samples," says Westbound's attorney Richard Bush.

The court wrote that the music industry, as well as the courts, "are best served" by a test that "adds clarity" to what will be infringement when someone digitally samples copyrighted sound recordings.

The Sixth Circuit Court of Appeals considers cases in four states, including Tennessee. Courts in other circuits may or may not follow this ruling.