Sunday, March 3, 2013

RZA has Sued JVC Kenwood Holdings, Inc. (doing busines as Teichiku Entertainment, Inc.) in a Declaratory Action to Defeat Allegations that RZA's "Dark Fantasy" Allegedly Contains an Unauthorized Sample from "Gincyo Watadori" as Performed by Meiko Kaji

According to the Hollywood Reporter, Robert Fitzgeral Diggs (professionaly known as the multi-talented The RZA) has sued JVC Kenwood Holdings, Inc., doing business as Teichiku Entertainment, Inc. (a business that buys the rights to musical sound recordings and composition) for a declaration that JVC's claim's of sampling are false. Specifically, as alleged in the lawsuit, JVC claims that RZA illegally sampled portions of Gincyo Watadori by Meijo Kaji for use in the sound recording Dark Fantasy (released November 22, 2010) on the Kanye West album, My Beautiful Dark Twisted Fantasy). RZA strongly denies this and wants a declaration, inter alia, that the Gincyo Watadori sound recording isn't sufficiently original enough to receive copyright protection and that Dark Fantasy does not infringe on the Gincyo Watadori sound recording.

According to the Hollywood Reporter, Howard King, one of the attorneys for RZA, has stated the following:

"RZA did not use Teichiku’s piano run, and it sounds different from the one in 'Dark Fantasy,' " says King. "In fact, it would have been technologically impossible to sample the piano run without the rest of the music in 'Gincyo Watadori,' and the piano run in 'Gincyo' is so simple that the least talented person in the studio could have replayed it had anyone wished to do so."
In the same article, it is reported that Daniel Rubin, an attorney for Teichiku responded:
It's not just the piano melody that was sampled, but also the orchestral backing was sampled too," he says. "We made this claim in June of last year, and in our attempts to settle this matter, they've made many offers. We wanted a much larger sum than they were willing to give us, so we didn't take it.
Rubin also contends that a test "revealed that the RZA's song emanated from "Gincyo." In any event, RZA pulled the trigger first and filed his lawsuit in the Ninth Circuit's Central District Court of California on February 25, 2013 (Case No. 2:13-cv-01359-SVW-MLG).

This is an interesting copyright case for several reasons. First, it has that "man bites dog" flair in that RZA sued the alleged copyright holder for declaratory relief first rather than waiting for JVC Kenwood Holdings to sue him for infringement. Second, the state of copyright law when it comes to sampling is arguably a bit murky. This is partly due to a split of authority between the Sixth Circuit and the Ninth Circuit when it comes to something called de minimus sampling. Basically, in Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005), the Sixth Circuit held that if you sample even a few seconds of a musical piece, you need to pay for it or don't sample. In other words, it rejected the de minimus defense when it came to sampling.

A year earlier, the Ninth Circuit had accepted the de minimus defense for sound sampling in Newton v. Diamond, 388 F.3d 1189 (9th Cir. 2004) when it held that a three-note sample was too short to be independently copyrightable, and even if it was, Diamond's use was de minimus. While RZA doesn't appear to be relying on a de minimus defense (he has denied sampling any portion of the "Gincyo Watadori" sound recording) by filing first, he will have the benefit of what is arguably a more favorable venue for this declaratory relief action.

Leaving aside the specifics of this lawsuit and the positions that have been taken or may be taken by the parties, the defenses to a generic sampling copyright infringement claim might go something like this,
I didn't sample the music. If I did sample the music, it was so little that no one would recognize it or be able to claim a copyright to it. Finally, if I did sample the music and it was enough to be copyrightable, then my use was fair, because it was only to mock you via a parody or to comment on the work or educate someone about it.
As stated above, in this case, RZA has flatly stated that he didn't sample any portion of Gincyo Watadori. If this is proven true, then the de minimus and Fair Use doctrines won't necessarily come into play. Personally, I've listened to both pieces and I lack the skill to tell one way or the other if the recordings sound even remotely similar. But on the net, its a bit of a game to hunt down and identify allegedly sampled pieces. There are sites like Whosampled and Du-Bruit that have databases of allegedly sampled pieces by various artist and try to identify the DNA and the links between artists and sound  recordings. And some people have hinted at a similarity between portions of the two recordings, e.g., the so I was going through some old records I had thread at

I should note that I've generally seen Meiko Kaji's sound recording referred to as Gincho Wataridori. I'm not sure which transliteration is correct. Meiko Kaji is a well-known, talented singer and actress who has appear in many movies. Two of her songs were used in the first Kill Bill. RZA organized, and mostly produced and orchestrated the music for that film.

It will be interesting to see how this lawsuit plays out.

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