Bridgeport Music, Inc.; Westbound Records, Inc. v. Dimension Films; Miramax Film Corp.

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0297P (6th Cir.)
File Name: 04a0297p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
No. 02-6521
BRIDGEPORT MUSIC, INC.;
WESTBOUND RECORDS, INC.,
Plaintiffs-Appellants,
SOUTHFIELD MUSIC, INC.;
NINE RECORDS, INC.,
Plaintiffs,
v.
DIMENSION FILMS; MIRAMAX
FILM CORP.,
Defendants,
NO LIMIT FILMS LLC,
Defendant-Appellee.
No. 03-5738
BRIDGEPORT MUSIC, INC.;
SOUTHFIELD MUSIC, INC.;
NINE RECORDS, INC.,
Plaintiffs-Appellants,
WESTBOUND RECORDS, INC.,
Plaintiff,
v.
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Nos. 02-6521;
03-5738
2 Bridgeport Music et al. v.
Dimension Films et al.
Nos. 02-6521; 03-5738
*The Honorable Judith M. Barzilay, Judge, United States Court of
International Trade, sitting by designation.
DIMENSION FILMS, et al.,
Defendants,
NO LIMIT FILMS LLC,
Defendant-Appellee.
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Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 01-00412—Thomas A. Higgins, District Judge.
Argued: April 28, 2004
Decided and Filed: September 7, 2004
Before: GUY and GILMAN, Circuit Judges; BARZILAY,
Judge.*
_________________
COUNSEL
ARGUED: Richard S. Busch, KING & BALLOW,
Nashville, Tennessee, for Appellants. Robert L. Sullivan,
LOEB & LOEB, Nashville, Tennessee, for Appellee.
ON BRIEF: Richard S. Busch, D’Lesli M. Davis, KING &
BALLOW, Nashville, Tennessee, for Appellants. Robert L.
Sullivan, John C. Beiter, LOEB & LOEB, Nashville,
Tennessee, for Appellee.

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Nos. 02-6521; 03-5738 Bridgeport Music et al. v.
Dimension Films et al.
3
1All of plaintiffs’ claims against Miramax Film Corp. and Dimension
Films were dismissed with prejudice, pursuant to a settlement, on June 27,
2002.
_________________
OPINION
_________________
RALPH B. GUY, JR., Circuit Judge. Plaintiffs, Bridgeport
Music, Inc., Westbound Records, Inc., Southfield Music, Inc.,
and Nine Records, Inc., appeal from several of the district
court’s findings with respect to the copyright infringement
claims asserted against No Limit Films.1 This action arises
out of the use of a sample from the composition and sound
recording “Get Off Your Ass and Jam” (“Get Off”) in the rap
song “100 Miles and Runnin’” (“100 Miles”), which was
included in the sound track of the movie I Got the Hook Up
(Hook Up). Specifically, Westbound appeals from the district
court’s decision to grant summary judgment to defendant on
the grounds that the alleged infringement was de minimis and
therefore not actionable. Bridgeport, while not appealing
from the summary judgment order, challenges instead the
denial of its motion to amend the complaint to assert new
claims of infringement based on a different song included in
the sound track of Hook Up. Finally, Bridgeport, Southfield,
and Nine Records appeal from the decision to award attorney
fees and costs totaling $41,813.30 to No Limit Films under 17
U.S.C. § 505. For the reasons that follow, we reverse the
district court’s grant of summary judgment to No Limit on
Westbound’s claim of infringement of its sound recording
copyright, but affirm the decision of the district court as to the
award of attorney fees and the denial of Bridgeport’s motion
to amend.
4 Bridgeport Music et al. v.
Dimension Films et al.
Nos. 02-6521; 03-5738
2These are two of eleven appe als arising out of six related lawsuits
that have been assigned to this panel for hearing and decision (Nos. 02-
6521, 03-5002, 03-5003, 03-5004, 03-5005, 03-5738, 03-5739, 03-5741,
03-5742 , 03-5744, 03-565 6).
I.
The claims at issue in this appeal were originally asserted
in an action filed on May 4, 2001, by the related entities
Bridgeport Music, Southfield Music, Westbound Records,
and Nine Records, alleging nearly 500 counts against
approximately 800 defendants for copyright infringement and
various state law claims relating to the use of samples without
permission in new rap recordings. In August 2001, the
district court severed that original complaint into 476 separate
actions, this being one of them, based on the allegedly
infringing work and ordered that amended complaints be
filed.2
The claims in this case were brought by all four plaintiffs:
Bridgeport and Southfield, which are in the business of music
publishing and exploiting musical composition copyrights,
and Westbound Records and Nine Records, which are in the
business of recording and distributing sound recordings. It
was conceded at the time of summary judgment, however,
that neither Southfield Music nor Nine Records had any
ownership interest in the copyrights at issue in this case. As
a result, the district court ordered that they be jointly and
severally liable for 10% of the attorney fees and costs
awarded to No Limit Films.
Bridgeport and Westbound claim to own the musical
composition and sound recording copyrights in “Get Off Your
Ass and Jam” by George Clinton, Jr. and the Funkadelics.
We assume, as did the district court, that plaintiffs would be
able to establish ownership in the copyrights they claim.
There seems to be no dispute either that “Get Off” was

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Nos. 02-6521; 03-5738 Bridgeport Music et al. v.
Dimension Films et al.
5
3Sound recordings and their underlying musical compositions are
separate works with their o wn distinct cop yrights. See 17 U.S.C.
§ 102 (a)(2), (7). Bridgeport M usic, Inc. v. Still N The W ater Publ’g, 327
F.3d 472 , 475 n.3 (6th Cir.), cert. denied, 124 S. Ct. 399 (2003)
(consolidated appeals from the dismissal of 19 of the 476 actions for lack
of personal jurisdiction).
digitally sampled or that the recording “100 Miles” was
included on the sound track of I Got the Hook Up. Defendant
No Limit Films, in conjunction with Priority Records,
released the movie to theaters on May 27, 1998. The movie
was apparently also released on VHS, DVD, and cable
television. Fatal to Bridgeport’s claims of infringement was
the Release and Agreement it entered into with two of the
original owners of the composition “100 Miles,” Ruthless
Attack Muzick (RAM) and Dollarz N Sense Music (DNSM),
in December 1998, granting a sample use license to RAM,
DNSM, and their licensees. Finding that No Limit Films had
previously been granted an oral synchronization license to use
the composition “100 Miles” in the sound track of Hook Up,
the district court concluded Bridgeport’s claims against No
Limit Films were barred by the unambiguous terms of the
Release and Agreement. Bridgeport Music, Inc. v. Dimension
Films LLC, 230 F. Supp.2d 830, 833-38 (M.D. Tenn. 2002).
Although Bridgeport does not appeal from this determination,
it is relevant to the district court’s later decision to award
attorney fees to No Limit Films.
Westbound’s claims are for infringement of the sound
recording “Get Off.”3 Because defendant does not deny it, we
assume that the sound track of Hook Up used portions of “100
Miles” that included the allegedly infringing sample from
“Get Off.” The recording “Get Off” opens with a three-note
combination solo guitar “riff” that lasts four seconds.
According to one of plaintiffs’ experts, Randy Kling, the
recording “100 Miles” contains a sample from that guitar
solo. Specifically, a two-second sample from the guitar solo
6 Bridgeport Music et al. v.
Dimension Films et al.
Nos. 02-6521; 03-5738
was copied, the pitch was lowered, and the copied piece was
“looped” and extended to 16 beats. Kling states that this
sample appears in the sound recording “100 Miles” in five
places; specifically, at 0:49, 1:52, 2:29, 3:20 and 3:46. By the
district court’s estimation, each looped segment lasted
approximately 7 seconds. As for the segment copied from
“Get Off,” the district court described it as follows:
The portion of the song at issue here is an arpeggiated
chord – that is, three notes that, if struck together,
comprise a chord but instead are played one at a time in
very quick succession – that is repeated several times at
the opening of “Get Off.” The arpeggiated chord is
played on an unaccompanied electric guitar. The rapidity
of the notes and the way they are played produce a high-
pitched, whirling sound that captures the listener’s
attention and creates anticipation of what is to follow.
Bridgeport, 230 F. Supp.2d at 839. No Limit Films moved
for summary judgment, arguing (1) that the sample was not
protected by copyright law because it was not “original”; and
(2) that the sample was legally insubstantial and therefore
does not amount to actionable copying under copyright law.
Mindful of the limited number of notes and chords
available to composers, the district court explained that the
question turned not on the originality of the chord but, rather,
on “the use of and the aural effect produced by the way the
notes and the chord are played, especially here where copying
of the sound recording is at issue.” Id. (citations omitted).
The district court found, after carefully listening to the
recording of “Get Off,” “that a jury could reasonably
conclude that the way the arpeggiated chord is used and
memorialized in the ‘Get Off’ sound recording is original and
creative and therefore entitled to copyright protection.” Id.
(citing Newton v. Diamond, 204 F. Supp.2d 1244, 1249-59
(C.D. Cal. 2002)) (later affirmed on other grounds at 349 F.3d

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Nos. 02-6521; 03-5738 Bridgeport Music et al. v.
Dimension Films et al.
7
591 (9th Cir. 2003)). No Limit Films does not appeal from
this determination.
Turning then to the question of de minimis copying in the
context of digital sampling, the district court concluded that,
whether the sa mpli ng is examined under a
qualitative/quantitative de minimis analysis or under the so-
called “fragmented literal similarity” test, the sampling in this
case did not “rise to the level of a legally cognizable
appropriation.” 230 F. Supp.2d at 841. Westbound argues
that the district court erred both in its articulation of the
applicable standards and its determination that there was no
genuine issue of fact precluding summary judgment on this
issue.
On October 11, 2002, the district court granted summary
judgment to No Limit Films on the claims of Bridgeport and
Westbound; dismissed with prejudice the claims of Southfield
and Nine Records; denied as moot the motion of Bridgeport
and Westbound for partial summary judgment on the issue of
copyright ownership; and entered final judgment accordingly.
Bridgeport and Westbound appealed. The facts relevant to
the earlier denial of Bridgeport’s motion to amend the
complaint will be discussed below. No Limit Films filed a
post-judgment motion for attorney fees and costs, which the
district court granted for the reasons set forth in its
memorandum opinion and order of April 24, 2003.
Bridgeport, Southfield Music, and Nine Records appealed
from that award.
II.
The district court’s decision granting summary judgment is
reviewed de novo. Smith v. Ameritech, 129 F.3d 857, 863
(6th Cir. 1997). In deciding a motion for summary judgment,
the court must view the evidence and reasonable inferences in
the light most favorable to the nonmoving party. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
8 Bridgeport Music et al. v.
Dimension Films et al.
Nos. 02-6521; 03-5738
(1986). Summary judgment is appropriate when there are no
genuine issues of material fact in dispute and the moving
party is entitled to judgment as a matter of law. FED. R. CIV.
P. 56(c).
In granting summary judgment to defendant, the district
court looked to general de minimis principles and emphasized
the paucity of case law on the issue of whether digital
sampling amounts to copyright infringement. Drawing on
both the quantitative/qualitative and “fragmented literal
similarity” approaches, the district court found the de minimis
analysis was a derivation of the substantial similarity element
when a defendant claims that the literal copying of a small
and insignificant portion of the copyrighted work should be
allowed. After listening to the copied segment, the sample,
and both songs, the district court found that no reasonable
juror, even one familiar with the works of George Clinton,
would recognize the source of the sample without having
been told of its source. This finding, coupled with findings
concerning the quantitatively small amount of copying
involved and the lack of qualitative similarity between the
works, led the district court to conclude that Westbound could
not prevail on its claims for copyright infringement of the
sound recording.
Westbound does not challenge the district court’s
characterization of either the segment copied from “Get Off”
or the sample that appears in “100 Miles.” Nor does
Westbound argue that there is some genuine dispute as to any
material fact concerning the nature of the protected material
in the two works. The heart of Westbound’s arguments is the
claim that no substantial similarity or de minimis inquiry
should be undertaken at all when the defendant has not
disputed that it digitally sampled a copyrighted sound
recording. We agree and accordingly must reverse the grant
of summary judgment.

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Nos. 02-6521; 03-5738 Bridgeport Music et al. v.
Dimension Films et al.
9
4Defendants claim tha t this argument is made for the first time on
app eal. Assuming without deciding that such is the case, we nonetheless
exercise our discretion to entertain this argument due to the dearth of legal
authority on this issue and the importance of the resolution of this issue
to the m usic industry.
5“In most copyright actions, the issue is whether the infringing work
is substantially similar to the original wo rk. . . . The scope of inquiry is
much narrower when the work in question is a so und recording. The only
issue is whether the actual sound recording has been used without
authorization. Substantial similarity is not an issue . . . .” Bradley C.
Rosen, Esq., 22 CAUSES OF ACT ION § 12 (2d ed . 2003).
A. Digital Sampling of Copyrighted Sound Recordings
At the outset it is important to make clear the precise nature
of our decision. Our conclusions are as follows:
1. The analysis that is appropriate for determining
infringement of a musical composition copyright, is not the
analysis that is to be applied to determine infringement of a
sound recording. We address this issue only as it pertains to
sound recording copyrights.4
2. Since the district court decision essentially tracked the
analysis that is made if a musical composition copyright were
at issue, we depart from that analysis.5
3. We would agree with the district court’s analysis on the
question of originality if the composition copyright had been
at issue. Having concluded that the statute requires a different
analysis for sound recording copyrights, however, we also
find that the requirement of originality is met by the fixation
of sounds in the master recording. Only an actual physical
copy of a master recording will be exactly the same as the
copyrighted sound recording. We assume that Westbound
will be able to establish it has a copyright in the sound
10 Bridgeport Music et al. v.
Dimension Films et al.
Nos. 02-6521; 03-5738
6“E.g., Terry Fryer, Sampling Jargon Illustrated, KEYB OAR D, June
1988, at 66-73. First, the cost barrier to enter into the audio production
arena is low due to the influx of affordab le digital record ing equipment.
The combination of a microphone, digital audio equipment, consumer
audio equipment and an album or com pact disc co llection are the only
tools needed to produce commercial rap m usic. Second, utilizing samples
as the musical element of the song enables the producer to create
commercial rap music without any original musical accompaniment prior
to recording the vocals. T hird, using music samples saves a considerable
amount of time when compared to the traditional recording methods
because another artist already record ed the underlying music. . . .”
Stephen R. W ilson, Music Sam pling Law suits: Does Loop ing M usic
Samples Defeat the De Min imis Defense?, 1 Journal of High Technology
Law (JHT L) 179 n.9 (200 2) (citations omitted).
recording and that a digital sample from the copyrighted
sound recording was used in this case.
4. This case involves “digital sampling” which is a term of
art well understood by the parties to this litigation and the
music industry in general. Accordingly, we adopt the
definition commonly accepted within the industry.
5. Because of the court’s limited technological knowledge
in this specialized field, our opinion is limited to an instance
of digital sampling of a sound recording protected by a valid
copyright. If by analogy it is possible to extend our analysis
to other forms of sampling, we leave it to others to do so.
6. Advances in technology6 coupled with the advent of the
popularity of hip hop or rap music have made instances of
digital sampling extremely common and have spawned a
plethora of copyright disputes and litigation.
7. The music industry, as well as the courts, are best served
if something approximating a bright-line test can be
established. Not necessarily a “one size fits all” test, but one
that, at least, adds clarity to what constitutes actionable

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Nos. 02-6521; 03-5738 Bridgeport Music et al. v.
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11
infringement with regard to the digital sampling of
copyrighted sound recordings.
B. Analysis
We do not set forth the arguments made by Westbound
since our analysis differs somewhat from that offered by the
plaintiff. Our analysis begins and largely ends with the
applicable statute. Section 114(a) of Title 17 of the United
States Code provides:
The exclusive rights of the owner of copyright in a
sound recording are limited to the rights specified by
clauses (1), (2), (3) and (6) of section 106, and do not
include any right of performance under section 106(4).
Section 106 provides:
Subject to sections 107 through 122, the owner of
copyright under this title has the exclusive rights to do
and to authorize any of the following:
(1) to reproduce the copyrighted work in copies
or phonorecords;
(2) to prepare derivative works based upon the
copyrighted work;
(3) to distribute copies or phonorecords of the
copyrighted work to the public by sale or other
transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and
choreographic works, pantomimes, and motion
pictures and other audiovisual works to perform the
copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and
choreographic works, pantomimes, and pictorial,
12 Bridgeport Music et al. v.
Dimension Films et al.
Nos. 02-6521; 03-5738
graphic, or sculptural works, including the
individual images of a motion picture or other
audiovisual work, to display the copyrighted work
publicly; and
(6) in the case of sound recordings, to perform the
copyrighted work publicly by means of a digital
audio transmission.
Section 114(b) states:
(b) The exclusive right of the owner of copyright in a
sound recording under clause (1) of section 106 is limited
to the right to duplicate the sound recording in the form
of phonorecords or copies that directly or indirectly
recapture the actual sounds fixed in the recording. The
exclusive right of the owner of copyright in a sound
recording under clause (2) of section 106 is limited to the
right to prepare a derivative work in which the actual
sounds fixed in the sound recording are rearranged,
remixed, or otherwise altered in sequence or quality. The
exclusive rights of the owner of copyright in a sound
recording under clauses (1) and (2) of section 106 do not
extend to the making or duplication of another sound
recording that consists entirely of an independent fixation
of other sounds, even though such sounds imitate or
simulate those in the copyrighted sound recording. The
exclusive rights of the owner of copyright in a sound
recording under clauses (1), (2), and (3) of section 106 do
not apply to sound recordings included in educational
television and radio programs (as defined in section 397
of title 47) distributed or transmitted by or through public
broadcasting entities (as defined by section 118(g)):
Provided, That copies or phonorecords of said programs
are not commercially distributed by or through public
broadcasting entities to the general public.

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Nos. 02-6521; 03-5738 Bridgeport Music et al. v.
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13
7Needless to say, in the case of a recording of a musical composition
the imitator would have to clear with the holder of the composition
cop yright.
Before discussing what we believe to be the import of the
above quoted provisions of the statute, a little history is
necessary. The copyright laws attempt to strike a balance
between protecting original works and stifling further
creativity. The provisions, for example, for compulsory
licensing make it possible for “creators” to enjoy the fruits of
their creations, but not to fence them off from the world at
large. 17 U.S.C. § 115. Although musical compositions have
always enjoyed copyright protection, it was not until 1971
that sound recordings were subject to a separate copyright. If
one were to analogize to a book, it is not the book, i.e., the
paper and binding, that is copyrightable, but its contents.
There are probably any number of reasons why the decision
was made by Congress to treat a sound recording differently
from a book even though both are the medium in which an
original work is fixed rather than the creation itself. None the
least of them certainly were advances in technology which
made the “pirating” of sound recordings an easy task. The
balance that was struck was to give sound recording copyright
holders the exclusive right “to duplicate the sound recording
in the form of phonorecords or copies that directly or
indirectly recapture the actual sounds fixed in the recording.”
17 U.S.C. § 114(b). This means that the world at large is free
to imitate or simulate the creative work fixed in the recording
so long as an actual copy of the sound recording itself is not
made.7 That leads us directly to the issue in this case. 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.
Section 114(b) provides that “[t]he exclusive right of the
owner of copyright in a sound recording under clause (2) of
section 106 is limited to the right to prepare a derivative work
14 Bridgeport Music et al. v.
Dimension Films et al.
Nos. 02-6521; 03-5738
8First, by clarifying the rights of a sound recording copyright owner
in regard to d erivative works, Sectio n 114(b) makes it clear that the digital
sampling of a cop yrighted sound recording must typically be licensed to
avoid an infringement. Sec tion 11 4(b) states that:
The exclusive right of the owner of copyright in a sound
recording under [the section 106 right to prepare derivative
works] is limited to the right to prepare a derivative work in
which the actual sounds fixed in the sound recording are
rearranged, remixed, or otherwise altered in sequence or quality.
The import of this language is that it does not matter how
much a digital sampler alters the actual sounds or whether the
ordinary lay observer can or cannot recognize the song or the
artist’s performance of it. Since the exclusive right encompasses
rearranging, remixing, or otherw ise altering the actual sounds,
the statute by its own terms precludes the use of a substantial
similarity test.
Susan J. Latham, Newton v. Diamond: Measuring the Legitimacy of
Unauthorized Compositional Sampling–A Clue Illuminated and
Obscured, 26 Hastings Comm. & Ent. L.J. 119, 125 (2003) (footnotes
omitted).
9“Samplers should apply for the appropriate licenses, respect the
rights of copyright holders, and be respected in turn as equal creators,
Resp onsibility for obtaining clearance should fall to either the artist, the
in which the actual sounds fixed in the sound recording are
rearranged, remixed, or otherwise altered in sequence or
quality.” In other words, a sound recording owner has the
exclusive right to “sample” his own recording. We find much
to recommend this interpretation.8
To begin with, there is ease of enforcement. Get a license
or do not sample. We do not see this as stifling creativity in
any significant way. It must be remembered that if an artist
wants to incorporate a “riff” from another work in his or her
recording, he is free to duplicate the sound of that “riff” in the
studio. Second, the market will control the license price and
keep it within bounds.9 The sound recording copyright holder

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label, or bo th. Samplers re alize that in the litigious environment of the
United States, there is nothing to be gained and much money potentially
to be lost by being a renegade. Surely some obscure materials will be
sampled and overlooked, but the process should proceed devoid of
recrimination and with the opp ortunity for money to be made by both the
sampler and those whom he sam ples.” D avid S anjek, “D on’t Have to DJ
No M ore”: Sampling and the “Autonomous” Creator, 10 C ardo zo A rts
& Ent. L.J. 607, 621 (19 92).
10“Thus, it seems like the only way to infringe on a sound recording
is to re-record sounds from the original work, which is exactly the nature
of digital sound sampling. Then the on ly issue becomes whether the
defendant re-reco rded sound from the original. This suggests that the
substantial similarity test is inapplicable to sound recordings.” Jeffrey R.
Houle, Digital Audio Sampling, Copyright Law and the American Mu sic
Industry: Piracy or Just a Bad “RAP”?, 37 Loy. L. Rev. 879, 896
(1992).
cannot exact a license fee greater than what it would cost the
person seeking the license to just duplicate the sample in the
course of making the new recording. Third, sampling is never
accidental. It is not like the case of a composer who has a
melody in his head, perhaps not even realizing that the reason
he hears this melody is that it is the work of another which he
had heard before. When you sample a sound recording you
know you are taking another’s work product.
This analysis admittedly raises the question of why one
should, without infringing, be able to take three notes from a
musical composition, for example, but not three notes by way
of sampling from a sound recording. Why is there no de
minimis taking or why should substantial similarity not enter
the equation.10 Our first answer to this question is what we
have earlier indicated. We think this result is dictated by the
applicable statute. Second, even when a small part of a sound
16 Bridgeport Music et al. v.
Dimension Films et al.
Nos. 02-6521; 03-5738
11“(A)ll samples from a record approp riate the work of the musicians
who performed on that record. This enables the sampler to use a musical
performance without hiring either the musician who originally played it
or a different musician to play the music again. Thus sampling of records
. . . allows a producer of music to save money (by not hiring a musician)
without sacrificing the sound and phrasing of a live musician in the song.
This practice poses the greatest danger to the musical profession because
the musician is being replaced with himself.” Christopher D. Abramson,
Digital Sam pling and the Recording Mu sician: A Proposal for
Legislative Protection, 74 N.Y.U. L. REV. 1660, 1668 (1999) (footnote
omitted).
12“The current lack o f bright-line rules lead s to unp redictability,
which may be one reason that so few sampling cases are brought to trial
. . . . A cost-benefit analysis generally indicates that is is less expensive
recording is sampled, the part taken is something of value.11
No further proof of that is necessary than the fact that the
producer of the record or the artist on the record intentionally
sampled because it would (1) save costs, or (2) add something
to the new recording, or (3) both. For the sound recording
copyright holder, it is not the “song” but the sounds that are
fixed in the medium of his choice. When those sounds are
sampled they are taken directly from that fixed medium. It is
a physical taking rather than an intellectual one.
This case also illustrates the kind of mental, musicological,
and technological gymnastics that would have to be employed
if one were to adopt a de minimis or substantial similarity
analysis. The district judge did an excellent job of navigating
these troubled waters, but not without dint of great effort.
When one considers that he has 800 other cases all involving
different samples from different songs, the value of a
principled bright-line rule becomes apparent. We would want
to emphasize, however, that considerations of judicial
economy are not what drives this opinion. If any
consideration of economy is involved it is that of the music
industry. As this case and other companion cases make clear,
it would appear to be cheaper to license than to litigate.12

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for a samp ler to purchase a license before sampling (or settle a post-
sampling lawsuit) rather than take his chances in an expensive trial, the
outcome of which . . . is nearly impossible to predict with any degree of
certainty.” Steph en R. W ilson, Mu sic Sam pling La wsuits: Does Looping
Mu sic Sam ples Defeat the De Minimis Defense, 1 Journal of High
Technology Law (JH TL) 17 9, 187 n.97 (20 02).
13W e have not addressed in detail any of the cases frequently cited
in these music copyright cases because in the main they involved
infringement of the composition copyright and not the sound recording
cop yright. Baxter v. MCA , Inc., 812 F.2d 421 (9th Cir. 198 7); Grand
Upright Music Ltd. v. Warner Bros. Records, Inc., 780 F. Supp. 182
(S.D.N.Y. 199 1); Jarvis v. A&M Records, 827 F. Supp. 282 (D.N.J.
1993); Williams v. Broadus, 60 U.S.P.Q.2d 1051 (S.D.N.Y. 20 01);
Newton v. Diamond, 349 F.3d 59 1, 594-95 (9th Cir. 2003).
14 2. Infringement of the Sound Recording
No known court decisions are available at this time to help
determine the extent to which samples may be made of
copyrighted recordings without the permission of their owners.
Certain provisions of the copyright law, however, do suggest
that broader protection against unauthorized sampling may be
availab le for owners of sound recordings than for the owners of
musical compositions that may be embodied in those sound
recordings.
For example, the copyright act states that, “The exclusive
rights of the owner o f copyright in a sound recording . . . do not
extend to the making or duplication of another sound recording
that consists entirely of an independent fixation of other sound s,
even though such so unds imitate or simulate those in the
copyrighted sound recording” [17 U.S.C. § 114 (b)] (emphasis
Since our holding arguably sets forth a new rule, several
other observations are in order. First, although we followed
no existing judicial precedent, we did not pull this
interpretation out of thin air.13 Several law review and text
writers, some of whom have been referenced in this opinion,
have suggested that this is the proper interpretation of the
copyright statute as it pertains to sound recordings.14 Since
18 Bridgeport Music et al. v.
Dimension Films et al.
Nos. 02-6521; 03-5738
added). By using the words “entirely of an independent
fixation” in referring to sound recordings which may imitate or
simulate the sounds of another, Congress may have intended that
a recording containing any sound s of ano ther recording would
constitute infringement. Thus, it would appear that any
unauthorized use of a digital sam ple taken from another’s
copyrighted recording would be an infringement of the
copyrighted recording.
In fact, the copyright law specifically provides that the
owner of copyright in a sound recording has the exclusive right
to prepare a derivative work “in which the actual sounds fixed
in the sound rec ording are rearranged , remixed, or o therwise
altered in sequence or quality.” A recording that embodies
samples taken from the sound recording of another is by
definition a ‘rearranged, remixed, or otherwise altered in
sequence or quality.’
It has been suggested that the strong protection implied by
the forego ing pro visions could be mitigated by a judicially
applied standard which p ermits so me degree of de m inimis
copying or copying where the sampled portion of the resulting
work is not sub stantially similar to the copied work. For
example, a court could determine that the taking of a millisecond
of sound from another’s copyrighted recording, or the taking of
a more extensive portion that has been modified to the point of
being completely unrecognizable or impo ssible to associate with
the copied recording, do es not constitute infringem ent. It is
believed, however, that the courts should take what appears to be
a rare oppo rtunity to follo w a “bright line” rule specifically
mandated by Congress. This would result in a substantial
reduction of litigation costs and uncertainty attendin g disputes
over sampling infringem ent of so und recordings and would
prom ote a faster resolution of these d isputes.
W hile the question whether an unauthorized use of a digital
samp le infringes a musica l composition may require a full
substantial similarity analysis, the question whether the use of a
samp le constitutes infringement of a sound recording could end
upon a determination that the sampler physically copied the
copyr ighted sound recording of another. If the sampler
physically copied any portion of another’s copyrighted sound
recording, then infringement should be found . If the sampler did

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19
not physically copy, then there could be no infringement (even
if the resulting reco rding substantially simulates or imitates the
original recording).
AL KOHN & BOB KOHN, KOHN ON MU SIC LICENSING 1486-87
(Aspen Law & Business 3d ed. 2002) (footnotes omitted).
15“As a result of actual, as well as threatened, litigation in the area of
digital sampling infringement, several developments have occurred.
Sampling clearinghouses serve as one recent outgro wth. These
companies are similar to publisher clearinghouses in that they are
authorized by member copyright owners to clear samples for use on
albums acco rding to an agreed upon fee structure. In addition, record
companies and most music publishers have instituted certain licensing
policies as more and more artists routinely seek clearance for their
samples with the ho pe of avoiding litigation.” A. D ean Johnson, Mu sic
Cop yrights: The Need for an Appropriate Fair Use Analysis in Digital
digital sampling has become so commonplace and rap music
has become such a significant part of the record industry, it is
not surprising that there are probably a hundred articles
dealing with sampling and its ramifications. It is also not
surprising that the viewpoint expressed in a number of these
articles appears driven by whose ox is being gored. As is so
often the case, where one stands depends on where one sits.
For example, the sound recording copyright holders favor this
interpretation as do the studio musicians and their labor
organization. On the other hand, many of the hip hop artists
may view this rule as stifling creativity. The record
companies and performing artists are not all of one mind,
however, since in many instances, today’s sampler is
tomorrow’s samplee. The incidence of “live and let live” has
been relatively high, which explains why so many instances
of sampling go unprotested and why so many sampling
controversies have been settled.
Second, to pursue further the subject of stifling creativity,
many artists and record companies have sought licenses as a
matter of course.15 Since there is no record of those instances
20 Bridgeport Music et al. v.
Dimension Films et al.
Nos. 02-6521; 03-5738
Sampling Infring ement Suits, 21 FLA. ST. U. L. REV. 135, 163 (1993)
(footnote omitted).
of sampling that either go unnoticed or are ignored, one
cannot come up with precise figures, but it is clear that a
significant number of persons and companies have elected to
go the licensing route. Also there is a large body of pre-1971
sound recordings that is not protected and is up for grabs as
far as sampling is concerned. Additionally, just as many
artists and companies choose to sample and take their
chances, it is likely that will continue to be the case.
Third, the record industry, including the recording artists,
has the ability and know-how to work out guidelines,
including a fixed schedule of license fees, if they so choose.
Fourth, we realize we are announcing a new rule and
because it is new, it should not play any role in the
assessment of concepts such as “willful” or “intentional” in
cases that are currently before the courts or had their genesis
before this decision was announced.
Finally, and unfortunately, there is no Rosetta stone for the
interpretation of the copyright statute. We have taken a
“literal reading” approach. The legislative history is of little
help because digital sampling wasn’t being done in 1971. If
this is not what Congress intended or is not what they would
intend now, it is easy enough for the record industry, as they
have done in the past, to go back to Congress for a
clarification or change in the law. This is the best place for
the change to be made, rather than in the courts, because as
this case demonstrates, the court is never aware of much more
than the tip of the iceberg. To properly sort out this type of
problem with its complex technical and business overtones,
one needs the type of investigative resources as well as the
ability to hold hearings that is possessed by Congress.

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21
16The district court also denied plaintiffs leave to amend to add
claims against new parties arising from the inclusion of “100 M iles” in I
Got the Hook Up. Plaintiffs have abandoned any appeal with respect to
the denial of that reque st.
These conclusions require us to reverse the entry of
summary judgment on Westbound’s claims against No Limit
Films.
III.
Bridgeport’s substantive appeal is from the denial of leave
to file a second amended complaint that would have asserted
new claims of infringement based on the inclusion of a
different song, called “How Ya Do Dat,” in the sound track of
Hook Up.16 We review the denial of a motion to amend for
abuse of discretion, except to the extent that it is based on a
legal determination that the amendment would not withstand
a motion to dismiss. Wade v. Knoxville Utilities Bd., 259
F.3d 452, 459 (6th Cir. 2001). Leave to amend a pleading
shall be freely given “when justice so requires.” FED. R. CIV.
P. 15(a).
Undue delay in filing, lack of notice to the opposing
party, bad faith by the moving party, repeated failure to
cure deficiencies by previous amendments, undue
prejudice to the opposing party, and futility of
amendment are all factors which may affect the decision.
Delay by itself is not sufficient reason to deny a motion
to amend. Notice and substantial prejudice to the
opposing party are critical factors in determining whether
an amendment should be granted.
Head v. Jellico Hous. Auth., 870 F.2d 1117, 1123 (6th Cir.
1989) (quoting Hageman v. Signal L.P. Gas, Inc., 486 F.2d
479, 484 (6th Cir. 1973)). “When amendment is sought at a
late stage in the litigation, there is an increased burden to
22 Bridgeport Music et al. v.
Dimension Films et al.
Nos. 02-6521; 03-5738
show justification for failing to move earlier.” Wade, 259
F.3d at 459 (citing Duggins v. Steak ‘N Shake, Inc., 195 F.3d
828, 834 (6th Cir. 1999)).
A. Facts
Plaintiffs commenced this action in May 2001, and filed an
amended complaint in September 2001. In November 2001,
the district court entered a scheduling order which required
that any motion to amend pleadings be filed far enough in
advance of April 1, 2002, to allow briefing to be completed
by that date. Discovery was to be completed by May 21,
2002. On March 18, 2002, the district court extended the
time for amending pleadings with the proviso that it would
have to be done in time to avoid extending discovery beyond
May 21, 2002.
On April 15, 2002, plaintiffs’ counsel received a “cue
sheet” for Hook Up that apparently alerted Bridgeport to the
presence of another song in which it held a copyright interest.
Specifically, Bridgeport claims 37% interest in the
composition “How Ya Do Dat” (“How Ya”) under a Release
and Agreement dated October 21, 1998, that granted
permission to use a sample from the composition “One of
Those Funky Things” in “How Ya.” While there was
disagreement about whether discovery made available as
early as October 2001 should have alerted Bridgeport of this
claim, there is no dispute that the presence of “How Ya” was
readily observable from watching the movie. In fact, the
magistrate judge noted that the “cue sheet” appears to be a list
of credits from the end of the film.
Plaintiffs moved to amend on April 19, 2002, and No Limit
Films opposed the motion in a response filed on April 26,
2002. On May 6, 2002, the magistrate judge recommended
that the motion be denied. Plaintiffs filed objections on May
16, 2002, and defendant responded on May 30, 2002. The
discovery cutoff date, May 21, had passed, but the deadline

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23
for completing depositions had been extended to June 14,
2002. But, the deadline for filing dispositive motions
continued to be June 21, 2002. No Limit Films filed its
motion for summary judgment on that date. On August 14,
2002, the district court entered its order overruling plaintiffs’
objections, denying plaintiffs’ motion to amend, and denying
plaintiffs’ further motion to certify the issue for appeal.
B. Analysis
Bridgeport maintains the district court abused its discretion
by denying leave to amend on the grounds of unjustified
delay and in the absence of a finding of prejudice to the
defendant. It is true that, ordinarily, delay alone will not
justify the denial of leave to amend the complaint. Morse v.
McWhorter, 290 F.3d 795, 800 (6th Cir. 2002). Delay,
however, will become “undue” at some point, “placing an
unwarranted burden on the court,” or “‘prejudicial,’ placing
an unfair burden on the opposing party.” Morse, 290 F.3d at
800 (citing Adams v. Gould Inc., 739 F.2d 858, 863 (3d Cir.
1984)).
Had the district court made an explicit finding of prejudice,
very little would need to be said in affirming the denial of
leave in this case. The district court’s order, although brief,
touched on undue delay and prejudice, explaining:
The plaintiffs object to the Magistrate Judge’s
conclusion that plaintiffs had not offered a sufficient
reason for failing to amend their complaint to add claims
and parties by the deadline set by the Court. Plaintiffs
argue that this deadline was modified by subsequent
order, and that the Magistrate Judge erred under Sixth
Circuit law by not allowing the amendments in the
interests of justice. The defendants respond that [the]
Magistrate Judge correctly concluded that, under the
circumstances of this case, amendment on the eve of the
24 Bridgeport Music et al. v.
Dimension Films et al.
Nos. 02-6521; 03-5738
close of discovery would be prejudicial to defendants and
unduly delay trial.
After careful consideration of the entire record, the
Court adopts and approves the Magistrate Judge’s Report
and Recommendation. The plaintiffs’ objections are
overruled. The interest of justice in this case requires
that plaintiffs show good cause why the Court should
allow amendment of their complaint to add a claim and
parties after the Court’s deadline for such amendments,
which the plaintiffs have failed to do.
To the extent that this brief discussion leaves doubt that a
finding of prejudice was made, we may sustain a denial of
leave to amend on grounds that are apparent from the record.
Morse, 290 F.3d at 801.
Defendant clearly argued that it would be unfairly
prejudiced if required to respond to a distinct new claim of
infringement with only a few weeks of discovery remaining.
Plaintiffs focus on the magistrate judge’s mistaken reliance on
the April 1 deadline for seeking leave to amend. Nonetheless,
as defendant argues, plaintiffs’ motion was not timely because
the district court required that any amendments be sought in
sufficient time that discovery could be completed before May
21. Also, the record reflects that although there were
extensions of discovery beyond that date, extensions were
only granted to allow the completion of certain depositions
and did not affect the deadline for filing dispositive motions.
We find no abuse of discretion in the district court’s denial of
leave to raise new claims based on a different song, by a
different artist, in the movie.
IV.
Bridgeport, Southfield Music, and Nine Records appeal
from the decision to award $41,813.30 in attorney fees and
costs to No Limit Films as a prevailing party under 17 U.S.C.

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25
17Section 505 provides that: “In any civil action under this title, the
court in its discretion may allow the recovery of full costs by or against
any party other than the United States or an officer thereof. Except as
otherwise provided by this title, the court may also aw ard a reasonable
attorne y’s fee to the prevailing party as part of the co sts.”
§ 505. Apportioning the award between these plaintiffs, the
district court ordered that Southfield and Nine Records be
held liable, jointly and severally, for 10% of the total. The
district court also found that no award was warranted against
Westbound Records because its claims were objectively
reasonable and based on a developing area of copyright law.
As a result, the amount of fees reasonably incurred in defense
of this action were reduced by 50%. Plaintiffs do not
challenge the calculation of the fees or the inclusion of any
particular item.
A court may, in its discretion, award costs, including
reasonable attorney fees, to the prevailing party in a civil suit
under the Copyright Act. 17 U.S.C. § 505.17 Our review is
for abuse of discretion. Coles v. Wonder, 283 F.3d 798, 804
(6th Cir. 2002) (affirming award to prevailing defendant);
Murray Hill Publ’ns, Inc. v. ABC Communications, Inc., 264
F.3d 622, 639 (6th Cir. 2001) (reversing award to prevailing
defendant). A district court abuses its discretion when it
relies on clearly erroneous factual findings, improperly
applies the law, or uses an erroneous legal standard. Adcock-
Ladd v. Sec’y of Treasury, 227 F.3d 343, 349 (6th Cir. 2000).
The discretion to award attorney fees under § 505 is to be
exercised in an evenhanded manner with respect to prevailing
plaintiffs and prevailing defendants, and in a manner
consistent with the primary purposes of the Copyright Act.
Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994). “‘There is no
precise rule or formula for making these determinations,’ but
instead equitable discretion should be exercised ‘in light of
the considerations we have identified.’” Id. at 534 (quoting
26 Bridgeport Music et al. v.
Dimension Films et al.
Nos. 02-6521; 03-5738
18Tho se considerations include: the primary objective of the
Copyright Act to “encourage the production of original literary, artistic,
and musical expression for the good of the public”; the fact that
defendants as well as p laintiffs may ho ld copyrights and run the “gamut”
from large corporations to “starving artists”; the need to encourage
“defendants who seek to advance a variety of meritorious copyright
defenses . . . to litigate them to the same extent that p laintiffs are
encouraged to litigate meritorious claims of infringement”; and the fact
that “a successful defense of a copyright infringement action may further
the policies of the Copyright Act every bit as much as a successful
prosecution of an infringement claim by the holder of a copyright.” Id.
at 524 and 527.
Hensley v. Eckerhart, 461 U.S. 424, 436-37 (1983)).18
Several nonexclusive factors may be considered as long as
they are “faithful to the purposes of the Copyright Act and are
applied to prevailing plaintiffs and defendants in an
evenhanded manner.” Id. at 534 n.19. Those nonexclusive
factors include: “frivolousness, motivation, objective
unreasonableness (both in the factual and in the legal
components of the case) and the need in particular
circumstances to advance considerations of compensation and
deterrence.” Id. (quoting Lieb v. Topstone Indus., Inc., 788
F.2d 151, 156 (3d Cir. 1986)).
Southfield and Nine Records, neither of which had an
interest in “Get Off” or “100 Miles,” argue that defendant did
not truly prevail against them because they were
“inadvertently” left in the amended complaint and they did
not oppose dismissal in this case. They did not voluntarily
dismiss their claims, however, as it was only in response to
defendant’s dispositive motions that they acquiesced in
dismissal. Moreover, the inclusion of Southfield and Nine
Records in the amended complaint in this case was less
“inadvertent” than a reflection of the plaintiffs’ failure to
discriminate between defendants and claims. No Limit Films
is a prevailing defendant as judgment was entered in its favor

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19Plaintiffs argue that Southfield had a significant interest in “How
Ya Do Dat” and joined Bridgeport in seeking leave to file the second
amended complaint to assert infringement claims. That assertion does not
affect the prevailing party status of defendant or undermine the finding
that the claims which were asserted were objectively unreasonable.
on all claims.19 Concluding that Bridgeport’s claim was
objectively unreasonable, the district court indicated that the
factor weighed heavily in favor of awarding fees. The district
court, relying on its decision granting summary judgment to
defendant, specifically found Bridgeport’s claims were
objectively unreasonable because Bridgeport had no
ownership interest in “100 Miles” when the oral
synchronization license was granted and offered no evidence
to undermine the existence of a valid license. Bridgeport
argues that its claim, although unsuccessful, was not
objectively unreasonable because it was not aware No Limit
would claim it had an oral license that preceded the Release
and Agreement. As defendant responds, nothing in this
record suggests Bridgeport would not have sued No Limit
Films if it had been aware of the oral license.
This brings us to what the district court called the deciding
factor – the manner in which the plaintiffs litigated this
action. This consideration, plaintiffs maintain, represents
nothing more than an attempt to punish Bridgeport and deter
the plaintiffs from pursuing reasonable, nonfrivolous claims
in other cases under threat of an award of attorney fees. The
district court reasoned as follows:
The initial complaint in this action is so voluminous that,
with exhibits, it is almost 1,000 pages long and takes
days to read in its entirety. It is replete with diatribes
against the music industry, but lacks concrete facts
directed at specific defendants. Almost all of the 800 or
so defendants in the initial complaint (representing what
appeared to be almost the entirety of entities involved in
28 Bridgeport Music et al. v.
Dimension Films et al.
Nos. 02-6521; 03-5738
making urban music) were lumped together in broad
categories and descriptions of activities. The individual
counts described the infringing conduct of the defendants
by references to these broad generalizations, without any
specific information as to what any individual defendant
did to violate the Copyright Act.
From that inauspicious beginning, this action
proceeded in a like manner, with heavy emphasis on
discovery disputes and motion practice and little
attention paid to narrowing the issues and refining the
claims. The plaintiffs repeatedly taxed the patience of
the Court, from narrowing the margins on their
memoranda to circumvent page limits, to filing
voluminous pleadings that were long on argument but
short on concrete facts or applicable legal authority. The
plaintiffs took every opportunity to inundate the Court
with paperwork, yet many of these motions were hastily
prepared and often lacked sufficient legal or factual
support. Most notably, the plaintiffs filed a motion for
summary judgment on ownership yet failed to submit
certified copies of the registration certificates for the
copyrights they claimed to own. When this oversight
was pointed out by the Magistrate Judge as being fatal to
their summary judgment motion, the plaintiffs, instead of
providing the documentation (which could be easily
obtained from the U.S. Copyright Office), expended
enormous effort in subsequent motion papers trying to
convince the Court that the certified copies were
unnecessary [until ordered to produce them].
The plaintiffs’ tactics have contributed to the
multiplication of fees by all parties, including the
defendant here. This, combined with the determination
that Bridgeport’s claim was objectively unreasonable,
merits an award for fees and costs against Bridgeport.

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To award fees simply because of the length of and lack of
specificity in the original complaint or because of the number
of claims brought by the plaintiffs would strike us as punitive
and inconsistent with the purposes of the Copyright Act. See
Murray Hill, 264 F.3d at 639-40 (reversing award of attorney
fees, despite district court’s criticism of the “voluminous
burden” the case imposed, noting only that the law was
unsettled and the plaintiff presented one or more colorable
claims). The district court’s criticisms go beyond just that,
however, and are tied to conduct that complicated rather than
streamlined the issues and contributed to the multiplication of
fees for the defendant.
While the district court did not articulate this consideration
in terms of the Fogerty factors, and was not required to since
they are nonexclusive, we see it as related to the recognized
factor of deterrence and compensation. The unique posture of
this case as one of hundreds brought in the same manner and
asserting parallel claims, makes deterrence a particularly
relevant and appropriate consideration. It is not the
deterrence of objectively reasonable good faith claims, but the
interest in motivating plaintiffs to sort through the objectively
unreasonable ones and prosecute this at best cumbersome
litigation in a way that discriminates between parties and
claims.
Plaintiffs charge that the defendant was equally responsible
for multiplying fees, particularly by failing to designate a
representative for deposition who had knowledge of the facts
concerning the use of “Get Off” in Hook Up. While there is
some suggestion that defendant contributed to increased
discovery costs because multiple depositions were required,
our review is deferential and the record does not demonstrate
clear error in the district court’s assessment of plaintiffs’
litigation conduct. Ultimately, we cannot say the district
court abused its discretion in this case, particularly given the
50% reduction in attorney fees to account for Westbound’s
claims. Nor should Southfield and Nine Records be relieved
30 Bridgeport Music et al. v.
Dimension Films et al.
Nos. 02-6521; 03-5738
of the nominal award of fees in this case, as defendant was
required to investigate whether they had any claim and
affirmatively move for dismissal of their claims before it was
conceded that they had no interest in the copyrighted works.
AFFIRMED in part, REVERSED in part, and
REMANDED for further proceedings consistent with this
opinion.

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