"Sleigh Bells" [band]
Comment by Bradley Ryba
In November 2015, the indie-pop duo Sleigh Bells, which is comprised of guitarist-producer Derek Miller and vocalist Alexis Krauss (hereinafter “Plaintiffs”), tweeted that Demi Lovato sampled their songs “Infinity Guitars” and “Riot Rhythm” on her song “Stars” without permission. Carl Falk and Rami Yacoub, the producers of “Stars,” quickly denied that any samples were used. On August 22, 2016, Plaintiffs filed the present lawsuit against Demi Lovato, Carl Falk, Rami Yacoub, UMG Recordings, and currently unknown contributors (collectively “Defendants”) for infringing “Infinity Guitars.”
Plaintiffs’ complaint asserts Defendants copied a “combination of hand claps and bass drum, structured as 3 quarter beats and a rest, with the bass drum providing a counter-rhythm to the hand claps,” which repeats throughout “Stars.” Additionally, Plaintiffs claim that the signal decay and other sonic signatures of both songs are nearly identical.
Plaintiffs seem to have retreated somewhat from their original accusation on Twitter—that “Stars” sampled “Infinity Guitars.” In fact, their complaint does not even mention the words “sound recording.” Rather, their complaint seems to leave the option open for either infringement by digitally sampling from the recording or infringement by appropriating compositional elements.
If Defendants did sample “Infinity Guitars,” they could attempt to assert a fair use or de minimis defense. In June 2016, the Ninth Circuit rejected the Sixth Circuit’s “Get a license or do not sample” Bridgeport bright-line rule. Thus, Defendants could assert that their use was de minimis because they did not appropriate significant copyrightable elements of “Infinity Guitars.” See, e.g., Newton v. Diamond, 349 F.3d 591, 594-598 (9th Cir. 2003). Additionally, the time may finally be ripe for a court to address fair use and music sampling—a topic that has interestingly evaded judicial decision. Here, Defendants could assert fair use by arguing, inter alia, that their use sufficiently transformed the sampled portions of “Infinity Guitars.”
If Plaintiffs’ lawsuit proceeds on a theory of compositional infringement, the case may turn on whether “Infinity Guitars” merely influenced “Stars.” Notably, “Infinity Guitars” has its own apparent influences. The melodic clapping of “Infinity Guitars” carries the vibe of a cheerleader squad (both the album “Infinity Guitars” appears on and the music video for “Infinity Guitars” feature cheerleaders). Furthermore, in a 2013 interview, Derek Miller seems to have stated that he sampled and altered a drum pattern from Kanye West’s “Gold Digger” for the drum pattern in “Infinity Guitars.” As such, whether Plaintiffs appropriated “Infinity Guitars,” drew influence from “Infinity Guitars,” or drew influence from another source may become an interesting issue in this case.