September 26, 2023 Musicology No Comments

Ernie Hines’ 1960’s single “Help Me Put Out The Flame (In My Heart)” was sampled for Jay-Z’s “Paper Chase” and Ginuwine’s “Toe 2 Toe.” Hines sued, and he just lost. But despite some confusing headline stories about the case, nobody should imagine this makes a case for sampling without a license and getting away with it. It wasn’t really about that. I’ll explain.

Musicologize is read by people of various interests and expertise, so we’ll start at the beginning. Copyright infringement requires showing a valid copyright, then showing copying of elements that are original, and those elements have to be substantially found in the newer work. Hines has the copyright, and the defendants sampled the record, so in that sense at least, they copied the notes. But this is not really about whether the record was sampled. Sampling would be taking the actual audio from the record. Hines co-authored and co-owns the song, but I haven’t seen anything that indicates he has any claim on the audio. This is about the underlying compositions.

The issues therefore are, first, whether Hines’ guitar blurb is original and protectable, and second, whether they copied it and significantly enough to be infringement.

The samples are from the start of Hines’s record, an electric guitar introduction not related to the rest of the composition. Here’s the record. For me it’s fun just to see that Stax logo.

Just listen to the first ten seconds and you’ll have what you need.

That bit of music never appears again in the song. In fact, the deposit copy registered with the Copyright Office does not include the intro. And I’m not surprised; we see this sort of omission a lot; deposit copy transcriptions are often representative of just the core composition. Vernon Silver wrote a great piece on the matter a few years ago. In the Stairway To Heaven case, there was very much a question as to whether the introduction to the plaintiff’s Taurus was even protected by copyright since it wasn’t written in the sheet music deposit copy. Here, not much is made of that, thankfully.

In an article from June 2021, Musicologize looked at this case and explained that Hines’ guitar introduction was binarily “original,” but not very. It isn’t very long, very involved, or very novel. It merely possesses some amount of originality. In other words, it wouldn’t be easily infringed upon. There are all kinds of ways to express the limits of copyright protection in such a case, and this decision lists some of them: Copyright does not protect “the raw materials of art,” “works in the public domain,” or “basic building blocks of music,” or common melodies. If you’ve ever heard of “thin copyright,” that idea would be applicable here.

The decision accepts the defense’s argument that Hines’ introduction is largely the same as “Mysterioso Pizzicato,” a cartoonish movie villain theme from silent movie days; one that I remember hearing as a child at Halloween. “We. Are. Here. To. SCAAAARE. You….” And indeed the pitch sequence is the same except for one note, and rhythmically, Hines plays it differently enough that you probably wouldn’t register it as that Halloween melody. But the court seems to have followed the idea of filtering out that which isn’t original, and considering only the balance. A lot of the time I bristle at that logic, but here I find it efficient, reasonable, and an effective illustration of the limited original value of Hines’ introduction. If the court decides this comes down to one note and a rhythm, neither of which are the sort of thing copyright protects, that’s going to make similarity a moot point.

Indeed the court found that beyond the elements that are found in prior art, in particular that familar villain theme, Hines has nothing protectable.

Vital in all of this, are the two types of copyright. Hines does not have a copyright for the recording. So the fact that the record was sampled is only instructive in that the defendants technically did copy notes. This is not a sampling case. This is about the musical composition.

An interesting approach, the court considers that the Second Circuit has in the past applied the “fragmented literal similarity” test specifically, “where the defendant copies a portion of the plaintiff’s work exactly or nearly exactly, without appropriating the work’s overall essence or structure” which is applicable here, partly, since this guitar intro is not remotely central to the rest of the Hines’ work. And I would venture alternatively in that there are tiny portions of the melody by virtue of it having being sampled that are indeed copied exactly, but those literal fragments are quite tiny.

So this decision is directionally right. The record was sampled, chopped up, and used to create grooves that are not substantially similar to Hines’ melody. Whatever they share compositionally they also share with many other works, “Mysterioso” just one of them.

But the court seems to me overly concerned with the fact that the guitar intro wasn’t essential to Hines’ whole song and in my opinion, that’s not nearly the point. The point should be, if I haven’t said it enough, the defendant didn’t copy anything “exactly or nearly exactly.” Had they, and this got tossed because Hines’ intro was not the heart of “Help Me Put Out The Flame (In My Heart),” that would be odd.

Judge J. Paul Oetken finishes strong:

… when “the copyrighted work contains both original and unprotected elements, a higher quantity
of copying is required to support a finding of substantial similarity than when the infringed work
is wholly original.”

Nihon Keizai Shimbun, Inc. v. Comline Bus. Data, Inc., 166 F.3d 65, 71 (2d
Cir. 1999

To which the judge adds: “Given the ubiquitous appearance of the notes in the Introduction in the public domain, as well as Hines’s minimal additions to those notes, no reasonable jury could find that the amount of copying here is sufficient to support a copyright infringement claim.”


Written by Brian McBrearty