{"id":680,"date":"2008-11-07T02:53:07","date_gmt":"2008-11-07T02:53:07","guid":{"rendered":"https:\/\/arpjournal.com\/?p=680"},"modified":"2011-09-29T11:54:03","modified_gmt":"2011-09-29T11:54:03","slug":"waveform-pirates-sampling-piracy-and-musical-creativity","status":"publish","type":"post","link":"https:\/\/www.arpjournal.com\/asarpwp\/waveform-pirates-sampling-piracy-and-musical-creativity\/","title":{"rendered":"Waveform Pirates: Sampling, Piracy and Musical Creativity"},"content":{"rendered":"

\u201cThou shalt not steal\u201d \u2013 the (uncited) admonishment from Exodus 20:15 opened Judge Kevin Duffy\u2019s judgment in Grand Upright Music Ltd. v. Warner Bros. Records, Inc. 780 F. Supp. 182 (S.D.N.Y. 1991); a case concerned with two words that have become very familiar in the post-Napster world: music and piracy. But Grand Upright was neither concerned with mass piracy, nor even unauthorised duplication of a whole song; the offending action was sampling. Since 1972 American sound recordings have been protected by virtue of the Sound Recording Act 1971 which was later incorporated into s.114 of the Copyright Act 1976. The 1971 Act introduced a new copyright in sound recordings created after 15th<\/sup> February 1972 and was intended to curb piracy stemming from relatively inexpensive recording equipment that became available during the 1960s and 1970s. The sampler, whilst essentially a duplication device is not used for the wholesale piracy of recorded music. Early samplers developed in the late 1970s and early 1980s were only capable of storing very brief audio fragments. The Ensoniq Mirage, for example, could only sample up to three seconds of audio at 8-bit quality. Notwithstanding the technological limitations of the time, the essence of sampling followed the quilt-pop aesthetic of turntablism adepts such as Grand Master Flash and Afrika Bambaataa. Sampling technology allows the isolation of audio fragments for the purpose of manipulation and recontextualisation in new works. Fragments are frequently significantly altered or pushed beyond recognition, but often they are also obvious, yet recast in novel and innovative soundscapes contrasting against the original and exposing new meanings. The courts, however, as Demers succinctly points out have \u201cnot yet come to terms with these distinctions\u201d and \u201csummarily prosecutes all acts of duplication in the same way, as if they all constituted piracy\u201d.[1<\/a>]<\/p>\n

Sampling is a (techno)logical extension of the creative process and its portrayal as just another form of piracy unfairly overlooks the position it occupies in the tradition of the musical creativity. A contest exists between those feeding a creative need to remix the past and those seeking to instil a permission culture under which all<\/em> acts of appropriation must be licensed. The sheer costs involved in licensing samples, however, are beyond the financial means of many musicians, and the risks of unauthorised sampling can act as a prohibitive barrier and a censor on creativity. Unfortunately, this contest has been fought by lawyers in the courts, and the courts have not been kind to unauthorised sampling. Vaidhyanathan proposes that \u201cthere could be room for unauthorized sampling within American copyright law. It could and should be considered fair use\u201d.[2] Certainly there is an argument for sampling to be protected as fair use, but a full discussion of the doctrine\u2019s applicability to sampling is beyond the scope of this paper. Suffice to say, however, the affirmative defence has been conspicuously absent from the majority of cases to date suggesting a lack of confidence in its success before the courts.<\/p>\n

This paper examines the relationship between sampling and the law in an American context and by situating the practice as a natural part of the creative process will argue that sampling and piracy are not synonymous. The position occupied by sampling will be contrasted with that of cover versions to illustrate a disparity in the legal treatment of musical duplication. Finally, the impropriety of applying an anti-piracy law to a creative practice will be discussed through examination of the few sampling cases to come before the courts.<\/p>\n

Copy, quote and borrow<\/strong><\/h3>\n

Most musical composition is as much a fusion of previous music as it is a new work of creative expression. Some appropriation is inevitable, and takes many forms from influence, to acknowledgement to more direct borrowings such as quotation (as found in jazz music) and sampling. George Harrison\u2019s publishing company \u2013 Harrisongs Music Ltd. \u2013 was sued by Bright Tunes Music Corporation, the copyright holder of the song \u201cHe\u2019s So Fine\u201d composed by Ronald Mack and popularised by the Chiffons. Bright Tunes claimed that Harrison appropriated \u201cHe\u2019s So Fine\u201d for his song \u201cMy Sweet Lord\u201d. The ex-Beatle maintained throughout that his usage was subconscious and unintentional. Whilst Harrison defended his appropriation as an unconscious act, other musicians have been more conscious of, and aggressive in their appropriation of existing works. John Street reports how if stuck for a guitar solo on stage, Keith Richards would just lift something from Buddy Holly. Richards defends his appropriation as a mark of respect, not a guilty confession.[3] In 1991, Nirvana\u2019s \u201cCome as You Are\u201d attracted attention as Killing Joke contemplated suing the band for borrowing the guitar riff from their song \u201cEighties\u201d. <\/em>Elastica suffered similarly through accusations of copying levelled at them by Wire and the Stranglers. Musical composition does not occur in a vacuum, but is a synthesis of inspirational or influential elements drawn from existing work. It is natural to find nuances of style and content shared amongst many works. Oasis\u2019 style borrows heavily from British 70s rock. Notably, the opening guitar riff for \u201cCigarettes and Alcohol\u201d is a distinct acknowledgement of \u201cGet It On\u201d by Marc Bolan and T-Rex. Bolan himself had significantly borrowed from his peers. His early acoustic career as Tyrannosaurus Rex exhibited Dylanesque characteristics, whilst \u201cTelegram Sam\u201d lifted a guitar riff from Howling Wolf (referenced in the song\u2019s fade out; \u201cI\u2019m like a howlin\u2019 wolf . . .\u201d). In music, formulae and ideas are constantly reworked, re-engineered and recast in new creations. For example, the \u201cMusical Borrowing\u201d online project indexes over 1200 academic works pertaining to musical \u201cborrowing, transcription, variations, quotation, cantus firmus<\/em> technique, paraphrase, imitation\/parody, modeling, allusions, and other ways to rework existing music, from troping and organum to collage and electronic manipulation\u201d.[4] Tad Lathrop, editor of Jazz Giants: A Visual Retrospective<\/em> suggests that \u201coriginality in music is hard to come by. Most artists exist as a kind of active composite of the music they have learned and absorbed over a long stretch of time. Uniqueness emerges most often from the particular way a performer reworks his assimilated influences: in the projection of sound through idiosyncrasies of personality\u201d.[5] Jazz musicians build a vocabulary of licks and phrases that are culled from the wealth of existing jazz music and these are creatively used in improvised solos. If lawsuits were filed every time a Charlie Parker lick was played there would be significantly less jazz music produced.<\/p>\n

Appropriation is not unique to jazz, but simply a part of the creative process. Classical composers saw themselves as part of a tradition in which originality was seen as a process of selection, reinterpretation and improvement, rather than act of solitary genius. Aaron Keyt argues that parody, mimicry and quotation can be found in classical music throughout the ages.[6] In the eighteenth century, Bach and Handel appropriated from other composers, and Vivaldi, Reinken and Stravinski (during his neoclassical stage), quoted nuances of older styles and pieces. For example, the final movement from Vivaldi\u2019s \u201cGloria (RV 588)\u201d is an almost precise reduction into one choir of a two choir Cum Sancto Spiritu<\/em> by Giovanni Ruggieri.<\/p>\n

The normalisation of copying in musical creativity is due in part to the finite number of notes that can be euphonically combined. This technical constraint as well as the unavoidable inspiration and influence that musicians experience inevitably results in mimicry of style, quotation of lyrics and riffs or sampling. Almost everyone has heard music that is reminiscent of another work. David Bowie, notorious for re-inventing himself and adapting to the times, sings in a style undeniable attributable to Anthony Newley, as testified to by former Bowie producer, Gus Dudgeon: \u201cBowie\u2019s really good and his songs are fucking great, but he sounds like Anthony Newley\u201d.[7]<\/p>\n

Licensing<\/strong><\/h3>\n

<\/strong>As previously indicated, some forms of copying in music are more direct than the subtle nuances of style or influence, and some are even legally permitted. For example, section 115 of the Copyright Act 1976 provides a compulsory licence for cover versions subject to payment of royalties as set by the Copyright Royalty Tribunal. The current rate (set by the 1997 Mechanical Rate Adjustment Proceeding) is \u201c9.1 cents or 1.75 cents per minute of playing time or fraction thereof, whichever is greater\u201d.[8] The copyright owner of the original piece cannot prevent the release of a cover version providing that a licence is obtained. Compulsory licences can even be obtained online via the Harry Fox Agency\u2019s \u201cSongFile\u201d web site.[9] Further, the statute stipulates that cover versions must not \u201cchange the basic melody or fundamental character of the work\u201d requiring that cover versions remain faithful to the original.[10]<\/p>\n

Are cover versions not just a means of re-selling the familiar and cashing in on previous creativity? Certainly many cover versions are simply repackaged (or re-performed) copies of the originals, but despite the requirement that covering artists do not deviate too far from the original version there is scope for transformative creativity through recontextualisation. For example, Parker and Charles\u2019 \u201cWe\u2019ll Meet Again\u201d, Depeche Mode\u2019s \u201cPersonal Jesus\u201d, and Nine Inch Nails\u2019 \u201cHurt\u201d took on significant new meanings to provide an insight into the mind of a dying man when covered by Johnny Cash. Scissor Sisters transformed the classic (yet depressing) \u201cComfortably Numb\u201d into an uplifting, high energy dance floor hit complete with Bee-Gee\u2019s style vocals.<\/p>\n

In the instance of cover versions the law permits copying. Furthermore, it permits copying that may interfere with the market for the original version: Consumers have the choice between Whitney Houston\u2019s and Dolly Parton\u2019s \u201cI Will Always Love You\u201d, Alanis Morissette\u2019s or Seal\u2019s version of \u201cCrazy\u201d, whilst \u201cSweet Child O\u2019 Mine\u201d can be delivered by Guns \u2018n Roses, Flatpack, or Sheryl Crow. Despite the fact that consumer preference may lean towards a cover version over the original \u2013 thus placing both in direct competition with each other \u2013 this form of copying is not piracy because the compulsory licence ensures that the copyright owner of the original is compensated for the use of the song.<\/p>\n

There is a distinct disparity between how cover versions and sampling are treated by the law; a factor that adversely affects creative freedoms and finds itself at odds with copyright\u2019s raison d\u2019\u00eatre<\/em> as a legal mechanism intended to optimise creativity. Sampling has the potential to be more creatively transformative than covering an existing song, yet both forms of copying have received very different treatment under the law. Cover versions implicate the copyright in the composition itself, but the compulsory licence permits use of the composition for the new recording. Sampling, however, not only implicates the copyright protecting the composition but also the copyright in the sound recording. Thus, both copyrights must be cleared which can be problematic as there is no compulsory licence for sound recordings and therefore no statutory controlled royalty rates. The sampling musician is subject to the arbitrary licensing fees demanded by the copyright owner of the sound recording, and those fees are frequently beyond the financial scope of many musicians. For example, Kanye West was faced with a fee of $150,000 to licence a sample culled from Lauryn Hill\u2019s 2002 MTV Unplugged performance of \u201cMystery of Iniquity\u201d. Rather than pay an exorbitant fee for licensing the sound recording, West opted to take the cheaper option of obtaining a compulsory cover version licence and re-record the performance using vocalist Syleena Johnson instead of Hill.[11] If licensing fees for clearing samples present such problems for artists as successful as Kanye West, then the view from the bottom is much bleaker. For bands and individuals working with limited production budgets licensing costs can prove destructive for their creative endeavours. Adam Dorn, alias Mocean Worker, tried for nine months to obtain permission to use a sample of gospel singer Mahalia Jackson. His persistent requests were eventually met with a demand for $10,000 in advance with royalties of six cents per record. Dorn was self-producing his album working with a budget of a mere $40 and was expecting to sell 2500 copies.[12] High profit yielding bands such as Beastie Boys and Public Enemy have highlighted how expensive sampling has become. During an interview with Chuck D and Hank Shocklee, Stay Free<\/em> magazine posed the question of whether the law had rendered it impossible for an album such as \u201cIt Takes a Nation of Millions to Hold Us Back\u201d to be produced in the current intellectual property climate:<\/p>\n

\u201cIt wouldn\u2019t be impossible. It would just be very, very costly. The first thing that was starting to happen by the late 1980s was that the people were doing buyouts. You could have a buyout\u2014meaning you could purchase the rights to sample a sound–for around $1,500. Then it started creeping up to $3,000, $3,500 $5,000, $7,500. Then they threw in this thing called rollover rates. If your rollover rate is every 100,000 units, then for every 100,000 units you sell, you have to pay an additional $7,500. A record that sells two millions copies would kick that cost up twenty times. Now you\u2019re looking at one song costing you more than half of what you would make on your album.\u201d[13]<\/p>\n

Producing an album that uses an abundance of samples can inflate the production costs by anywhere between thirty to forty thousand dollars.[14] Such licensing fees present a considerable financial outlay to musicians, even those contracted to major labels. Licensing costs can prove destructive towards creative endeavours causing samples to be dropped altering the creative texture of a song. Tim Quirk from Too Much Joy explains that \u201c[t]he cost seems to have no relation to the use \u2013 if we have to pay five grand apiece for each sample, not to mention legal fees for getting all the paperwork signed, we\u2019ll end up spending more than ten percent of our recording budget for less than nine seconds of sound\u201d.[15] Licensing fees can thus outweigh the artistic merit of using the sample in the first place.<\/p>\n

There are three alternatives to licensing samples. First, musicians always have the option to drop the sample from the song. The problem here, however, is that removing a sample can negatively affect the character of the song. Second, the sampled section could be re-recorded under a compulsory cover version licence as Kanye West did with Lauryn Hill\u2019s vocals. This option, whilst certainly cheaper than clearing rights in a sample, overlooks the criteria for selecting samples in the first place. For example, sample selection may be driven by combination of the melodic content of the audio fragment and the production artefacts such as compression, room ambience, incidental noises, personal nostalgia for the recorded performance or elusive notions such as the \u2018vibe\u2019 of the original recording session. Third, musicians may opt to use samples without authorisation. Certainly, in financial terms this is the cheapest option which in turn offers creative freedom exempt from acceding to licensing demands, but it is also risky. A successful claim for copyright infringement can involve court orders enjoining release of a record or awarding damages. For example, in March 2006 Bridgeport Music, Inc. successfully persuaded a court to enjoin the proceeds of \u201cReady to Die\u201d by Notorious B.I.G. leading to an award of $4 million in damages.[16] In Negativland\u2019s well documented case, the court ordered the surrender of the master tapes and the destruction of all surviving copies of the offending record.[17]<\/p>\n

Rip, mix and sue?<\/h3>\n

Given that hip-hop was founded on unlicensed sampling and jungle was largely fostered on transformative sampling of the break from The Winstons\u2019 \u201cAmen Brother\u201d,[18] one would be forgiven for assuming that the courts have been filled with sampling cases over the years. The opposite is true. Very few such cases have actually been heard by the courts since sound recordings first received federal protection in 1972. At the point that samplers and turntables started to be used to appropriate from existing works, sound recordings were regarded as common property, but the compositional right demanded a credit. The disparity in recognition on the album sleeve reflected the clear logic of cultural and intellectual property respectively. Jean Michel Jarre\u2019s \u201cZoolook\u201d featured samples culled from a wide range of musical source as well as collaborations with Laurie Anderson, Adrian Belew and Marcus Miller. Credits were given to the publishing companies that owned the performance rights of Anderson, Belew and Miller, but there is no mention of the rights owners or performers of the samples. In the early 1980s samples posed no problem because they existed outside of the cultural-industrial relationship. Only when appropriative music became profitable did the recording industry begin litigation against bands:<\/p>\n

\u201cBefore rap music began grossing millions of dollars, the use of these musical passages went unnoticed by publishing administrators and copyright holders. Sampling clearance was a relatively minor legal issue. Limited visibility, relatively small profits and legal costs to pursue illegal uses of sampled materials made policing such theft undesirable for record executives . . .\u00a0 Today, rap is big business. With multimillion record sales . . . the pursuit of the illegal use of sampled materials has become a complicated and high-profile legal issue in the entertainment industry\u201d.[19]<\/p>\n

The licensing system has become entrenched in the recording industry establishing a permission culture around creativity; \u201can unwelcome addition to the music world\u201d.[20] For example, Bridgeport Music, Inc. is a catalogue company with no reportable assets beyond the plethora of copyrights it owns (and enforces) in old songs. Wu dubs Bridgeport a \u201csample troll\u201d \u2013 a company that scours new releases seeking out unauthorised sampling from its portfolio and then sues for copyright infringement.[21] Trolling, it seems, has turned out to be quite the lucrative business. In 2001 Bridgeport filed lawsuits against over 800 musicians and record labels claiming nearly 500 instances of copyright infringement. Whilst not every lawsuit has been a success, Bridgeport emerged victorious after enjoining sales from a Notorious B.I.G. album and won a significant case against Diamond Films. Although discussed in depth below, it is important to note here that the latter case signalled a death knell for unauthorised sampling.<\/p>\n

Why does any of this matter?<\/h3>\n

The Supreme Court has previously declared that \u201cit should not be forgotten that the Framers intended copyright itself to be the engine of free expression\u201d.[22] The law, however, is not optimised to encourage creativity. Rather, in the case of sampling, the law is used to stifle creativity. The recording industry\u2019s licensing regime acts as an additional and indomitable factor against secondary uses of existing works. High profit yielding bands such as Public Enemy have highlighted how prohibitively expensive sampling has become, whilst musicians at the lower end of the scale similarly face difficulties, even when trying to \u201cdo the right thing\u201d. In addition, many musicians do not even work to a budget on account of their music being nothing more than a hobby. Amateur producers, however, risk being on the receiving end of an infringement claim even if they distribute via their MySpace page. Sampling is very much the province of those musicians who yield high enough profits to afford licences (although their \u2018deep pockets\u2019 may also inflate licensing fees). Further, the lack of a compulsory licence for sound recordings grants copyright owners the right to deny licence to those musicians and bands that are not considered profitable enough; low sales return low royalty payments. This form of regulation of musical creativity affords copyright owners an arbitrary power in controlling the ways that existing music is used and ultimately perceived.<\/p>\n

Sampling in the courts<\/h3>\n

The Copyright Act 1976 has struggled to cope with emerging technology-driven questions and the advent of sampling was no different. In United States v. Taxe, 380 F. Supp. 1010 (C.D. Ca. 1974), aff\u2019d<\/em>, 540 F. 2d 961 (9th Cir. 1976) the court heard how the defendants re-recorded entire eight-track stereo tape recordings owned by the major record labels of the day. The recordings were mechanically altered and compiled into a new work. Whilst Taxe did not involve sampling per se<\/em> it was the first case to question the application of the new copyright in sound recordings to instances of transformative appropriation. The court instructed the jury that in order to constitute infringement the defendant must have appropriated \u201cmore than a trivial part of the copyrighted record\u201d, one or two notes.[23] Although the court opted not to illuminate its statement, it suggests tolerance for de minimis<\/em> copying of sound recordings.[24] The lack of clarification makes it difficult to determine whether the court was speaking qualitatively or quantitatively. The court added that the altered re-recording \u201cmust be recognisable as the same performance\u201d as the originals.[25] Noting the lack of guidance on the matter, the court posited that such alteration might be \u201cso far from what Congress intended to prohibit as to not constitute an infringement\u201d.[26] Watson argues that Taxe opened the door for unauthorised sampling when the use is so transformative that it is no longer recognisable as the original fragment.[27]<\/p>\n

The suggestion that de minimis<\/em> copying would not amount to infringement was not sustained in Baxter v. MCA, 812 F. 2d 421 (9th<\/sup> Cir. 1987). The court set out the requirements for a claim of infringement: \u201cTo establish a successful claim for copyright infringement, the plaintiff must prove (1) ownership of the copyright, and (2) \u2018copying\u2019 of protectable expression by the defendant\u201d.[28] The first of these requirements is elementary, and the second may be established by proving the defendant had access to the original work and there is substantial similarity between the two works. Baxter established that even a trivial sample, such as a James Brown grunt or Michael Jackson yelp could be regarded as substantially similar if qualitatively important.<\/p>\n

When the District Court for the Southern District of New York heard Grand Upright Music Ltd. v. Warner Bros. Records, Inc. 780 F. Supp. 182 (S.D.N.Y. 1991) it dealt a damaging blow to an already ailing argument for unauthorised sampling. \u201cAlone Again\u201d by Biz Markie used an eight bar sample from Gilbert O\u2019Sullivan\u2019s \u201cAlone Again (Naturally)\u201d. Despite contacting O\u2019Sullivan\u2019s agent, permission was not obtained before Warner Bros. released Markie\u2019s album featuring \u201cAlone Again\u201d. Grand Upright, who owned the copyrights in O\u2019Sullivan\u2019s work sued for infringement. Judge Duffy commenced his judgement with the more sensational than insightful admonishment \u201cThou shalt not steal\u201d quoted from Exodus 20:15. According to Duffy, sampling was a \u201ccallous disregard for the law\u201d and its only purpose was \u201cto sell thousands upon thousands of records\u201d.[29] Markie\u2019s lawyers\u2019 weak defence that sampling was a common and established practice in rap music was dismissed as \u201ctotally specious\u201d. The court felt so strongly about Markie\u2019s \u201ctheft\u201d that the case was referred to the local U.S. Attorney for criminal prosecution under s.506 of the Copyright Act 1976. An injunction was issued to prevent further distribution of the song, but the U.S. Attorney decided against pursuing criminal charges.<\/p>\n

The harsh decision in Grand Upright was due to the fact that the sample appropriated from O\u2019Sullivan\u2019s song was instantly recognisable and constituted almost all the musical accompaniment for the rap.[30] Thus, as far as the court was concerned, Markie had simply stolen the passage to capitalise on the success of the original. The court demonstrated no attempt to understand the role of sampling in music and ignored an opportunity more lucid than Taxe or Baxter to articulate a standard for unauthorised sampling. It would have been prudent for the court to explore the applicability of the law to sampling. Section 114 of the Copyright Act 1976 deals with the exclusive rights granted in sound recordings. This section finds its origins in the Sound Recording Act 1971 which was devised to protect recorded works against piracy \u2013 the reproduction of the whole recording, not fragmentary transformative appropriation.[31] If the temptation to apply s.114 had been curtailed by a distinction between infringing and non-infringing use the outcome could have been very different. Despite Duffy\u2019s reputation as one of the most reversed judge on the Second Circuit,[32] Markie\u2019s attorneys settled and Warner Bros. agreed to drop \u201cAlone Again\u201d from subsequent pressings of the album. The aftermath of the case sounded a death knell for unlicensed sampling with O\u2019Sullivan\u2019s attorneys declaring \u201c[s]ampling is a euphemism that was developed by the music industry to mask what is obviously thievery. This represents the first judicial pronouncement that this practice is in fact theft\u201d.[33] This extrapolation of the judgment derives from the court\u2019s preoccupation with ownership of the recording to the prejudice of all other lines of reasoning.[34] The ruling caused substantial changes in appropriative music leading musicians and labels alike to be extremely wary of unauthorised sampling.[35] The recording industry now employs a stringent and lucrative licensing system to govern the practice.<\/p>\n

The tenor set by Grand Upright manifested itself in Negativland\u2019s battle against Island Records over use of a U2 song,[36] whilst in 1993; the District Court for the District of New Jersey stated that \u201cthere can be no more brazen stealing of music than digital sampling\u201d.[37] Although this statement was uttered in a time before the mass adoption of peer-to-peer file-sharing its accuracy is questionable. Surely the transformative sampling of a keyboard riff cannot be equated with wholesale piracy of cassettes and CDs? There were no significant advances or setbacks for sampling until the case of Newton v. Diamond 204 F. Supp. 2d 1244 (C. D. Cal. 2002). Concerned with a dispute between the Beastie Boys and James Newton the court took an approach to sampling reminiscent of Taxe. The Beastie Boys sampled a six-second, three-note segment of Newton\u2019s flute performance. The District Court issued summary judgment in favour of the Beastie Boys, stating that no licence was required because the fragment did not attract copyright protection. Taking the rare measure of elucidation in a sampling case, the court also added that even if the fragment of the performance were copyrightable, the sample would be covered by the de minimis<\/em> rule. The decision was upheld by the Court of Appeals for the Ninth Circuit which affirmed the de minimis<\/em> rule. The court also demonstrated understanding of the role played by appropriation in the creative process, accepting testimony that the fragment was \u201ca common building block used over and over again by major composers in the 20th<\/sup> century\u201d.[38] It is interesting to note that Newton sued for unauthorised use of the composition underlying the recording rather than infringement under s.114. It is uncertain if the court would have reached a different conclusion if Newton\u2019s claim had focused on the recording. In such a hypothetical scenario, if the court had found in favour of Newton the decision would have affirmed the legal disparity between duplication of the composition and the recording. Ostensibly, Newton represented a refreshing step in judicial perception of sampling, but such a degree of legal insight was not to last as courts continue to perceive unlicensed sampling as \u201cnothing but old fashioned piracy dressed in sleek new technology\u201d[39] an attitude exemplified by the decision in Bridgeport Music v. Dimension Films, et al<\/em> 410 F. 3d 792 (6th<\/sup> Cir. 2005).<\/p>\n

On the 31st<\/sup> August 2004, the 6th<\/sup> Circuit Court of Appeals for Cincinnati ruled that musicians should pay for every musical sample appropriated \u2013 even minor, unrecognisable fragments of music.[40] Rejecting the de minimis <\/em>principle established in Taxe and Newton, the court stated federal laws aimed at protecting against piracy extend to prevent unlicensed sampling:<\/p>\n

\u201cIf you cannot pirate the whole sound recording, can you \u2018lift\u2019 or \u2018sample\u2019 something less than the whole? Our answer to that question is in the negative . . . Get a license or do not sample. We do not see this stifling creativity in any significant way.\u201d[41]<\/p>\n

Bridgeport concerned the N.W.A. song \u201c100 Miles and Runnin\u201d, which samples a three-note guitar riff from \u201cGet Off Your Ass and Jam\u201d by 70s funksters George Clinton and Funkadelic. The untreated original is two-seconds in length but has been manipulated to lower the pitch and has been time-stretched to last sixteen beats. The sample appears five times throughout the new song.[42] No Limit Films (the movie production company for \u201cI Got the Hook Up\u201d which featured the N.W.A. song) argued the sample was so trivial it was unprotected by copyright law. At first instance the court held that the sample was copyrightable but the sampling \u201cdid not rise to the level of legally cognisable appropriation\u201d set by Taxe. The appeals court disagreed; a musician who acknowledges sampling may be liable even when the source of the sample is unrecognisable to the listener.<\/p>\n

The decision marks a significant setback in legal acceptance of sampling. Early sampling cases such as Taxe and Baxter acknowledged a threshold for acceptable duplication. In Taxe, the court held that a trivial appropriation, such as one or two notes would not amount to infringement. The court in Baxter introduced a qualitative approach. A sample, albeit trivial, could be found to infringe a copyright if it was qualitatively important to the song as a whole. Newton reinstated the de minimis <\/em>rule; although it must be stressed that the issue central to the case concerned the musical composition underlying the offending sample. The court decided that compared to the original work as a whole, the three notes in question were too trivial to be protected, despite the plaintiff\u2019s claims of distinct, personal style. Bridgeport rejected the Newton court\u2019s approach and instead narrowed the law for sound recordings. The decision paid little heed to previous sampling cases; rather it culled substance from \u201claw reviews and text writers\u201d.[43] As a result the case invites criticism of the legal reasoning employed therein. The decision contradicts established legal acknowledgement of the de minimis <\/em>rule with regard to sampling, and belies the constitutional objectives of copyright in protecting against piracy whilst simultaneously stimulating creativity. A footnote in the court\u2019s judgment reads:<\/p>\n

\u201cIn most copyright actions, the issue is whether the infringing work is substantially similar to the original work . . . The scope of inquiry is much narrower when the work in question is a sound 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 ACTION \u00a712 (2d. ed. 2003).\u201d[44]<\/p>\n

The court\u2019s rejection of the substantial similarity test and the de minimis<\/em> rule contradicts the intention of Congress. The Amicus Brief filed in Bridgeport by the Brennan Center for Justice at NYU School of Law and the EFF argues that \u201c[i]n revising the Copyright Act in 1976, Congress explicitly stated that only \u201csubstantial\u201d copying from sound recordings\u201d would violate s.114.[45] The threshold for substantial similarity in copyright infringement was intended to apply to sound recordings. The House Judiciary Committee Report on the 1976 copyright law revision states that s.114 is only violated \u201cwhenever all or any substantial portion of the actual sounds that go to make up a copyrighted sound are reproduced\u201d.[46] The House report demonstrates the Congressional intention for the substantial similarity test and de minimis <\/em>rule to apply to sound recordings.<\/p>\n

The \u201cget a license or do not sample\u201d[47] approach of Bridgeport fails to acknowledge the \u201cuneven bargaining power between parties in a sampling negotiation\u201d.[48] Rather, the court based its decision on the frequency at which sampling cases are settled out of court through licensing agreements. Achenbach criticises this logic, arguing \u201c[b]y assuming that because the licensing system works in some instances it is necessarily effective \u2013 without considering either the frequency with which it fails, or the impact of such failure \u2013 the court made its decision on an incomplete and fundamentally biased set of facts\u201d.[49] The court failed to consider the cultural costs of necessitating licensing fees. As previously noted, licensing fees can prove prohibitive to musicians without substantial financial resources. Under the Bridgeport decision, every sample must be cleared for both compositional and recording rights. This will necessarily involve two or more sets of negotiations and will raise production costs. Further, the consolidation amongst the major labels increases the potential for \u201ca single party with a diverse portfolio of copyrights to exert disproportionate influence on the entire market\u201d.[50] The move away from the Newton approach completely removes any opportunities for unlicensed sampling, no matter how trivial or unrecognisable that sample is. The decision will stifle creativity. Exorbitant fees and stringent penalties act as obstacles and deterrents to musicians working with a limited budget. A restrictive budget should not be the measure of a musical work. Regardless of a musician\u2019s ability to afford licensing fees, the cultural value of the work remains the same.<\/p>\n

The recent case of EMI v. Premise Media (2008) has broken away from the established judicial approach to sampling.[51] The case concerned an unlicensed fifteen second sample of John Lennon\u2019s \u201cImagine\u201d used in a documentary. EMI sought an injunction against Premise Media and had, in association with Lennon\u2019s family, unsuccessfully attempted the same action in a Manhattan federal court earlier this year. EMI rested its entire complaint on the Bridgeport ruling, but failed to persuade the Supreme Court of New York. Justice Lowe rejected the statutory interpretation of section 114 that was used in Bridgeport citing Nimmer on Copyright<\/em>\u2019s criticism of the judgment stemming from the trial judge\u2019s failure to examine the legislative history of section 114, and ultimately upheld the use as fair. Superficially, this decision is a win for the unlicensed sampling, but the decision should not be pre-emptively hailed as such. The production at the heart of the case is a documentary film not a musical work incorporating samples. The documentary industry has developed guidelines regarding secondary uses of copyrighted materials. Whilst the Documentary Filmmakers\u2019 Statement of Best Practice in Fair Use<\/em> is not legal doctrine, it has \u201cestablished shared principles, with limitation, to guide [documentary filmmakers\u2019] choices for fair use [that have] proven persuasive with lawyers, broadcasters, cablecasters, and insurers\u201d.[52] Despite the standards that have developed around fair use and documentary filmmaking, one must exert caution at superimposing them onto musical sampling as the recording and documentary filmmaking are very different industries. Further, the EMI v. Premise Media decision is not binding federally, although it may prove persuasive. It remains to be seen whether the same attitude would prevail in a case involving pure musical sampling.<\/p>\n

Sampling is not implemented in creative endeavours to avoid the effort and cost of producing original music, but rather to add layers of meaning to music. Despite this, courts have increasingly portrayed unauthorised sampling as synonymous with piracy. Usage of terms such as \u201ctheft\u201d and \u201cstealing\u201d and allusions to free riding off another\u2019s creativity send a message that sampling is an undesirable practice and one that adversely affects the market value of the original. To suggest that a consumer would purchase a sampling work over the sampled work \u2013 that the two compete in the marketplace \u2013 is a highly tenuous argument. Identifying unauthorised sampling with piracy risks chilling creative expression, but the risks are not purely onerous for samplists: \u201cThe kicker is that while sample trolls are bad for artists, they’re also bad for mainstream record labels. Record labels want to get out new music at minimum cost. But if clearing rights in the Bridgeport <\/em>world costs a fortune, production becomes that much more expensive, and innovative music that much riskier a bet.\u201d[53] As stated earlier, a full discussion of the applicability of the fair use doctrine is beyond the scope of this paper.[54] Whilst an argument exists for sampling as fair use, it should be noted that if samplists are unable to afford licensing fees, then they are also unlikely to meet the legal costs involved in mounting such a defence.<\/p>\n

Creativity is an inherently appropriative practice, and music is no exception. Although sampling is an established (albeit relatively recently) practice, as audio technologies evolve and offer more powerful methods of manipulating recordings new and innovative creative approaches will emerge to call \u201cinto question the categories, rifts and borders between high and low cultures, pop and elitist art practices, as well as blurring lines between artistic disciplines\u201d.[55] Instead of concentrating on rewarding copyright owners\u2019 financially prudent choices of whom to sue, the courts\u2019 time would be better served distinguishing between infringing and non-infringing uses of copyrighted recordings. As Wu points out, \u201cvibrant cultures borrow, remix and recast. Static cultures die\u201d.[56]<\/p>\n

Notes<\/h3>\n

[1] Joanna Demers, Steal This Music: How Intellectual Property Law Affects Musical <\/em>Creativity (Durham, London: Duke University Press, 2006), 30.<\/p>\n

[2] Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity<\/em> (New York, London: New York University Press, 2003), 145.<\/p>\n

[3] John Street, Rebel Rock: The Politics of Popular Music<\/em> (Oxford, New York: Blackwell, 1986), 135.<\/p>\n

[4] http:\/\/www.chmtl.indiana.edu\/borrowing\/introduction.html<\/p>\n

[5] Tad Lathrop, \u201cSounds of the City\u201d, Press Release for Paul Serrato, http:\/\/www.paulserrato.com\/07PressReleases.html.<\/p>\n

[6] Aaron Keyt, \u201cComment, An Improved Framework for Music Plagiarism Litigation\u201d, California Law Review <\/em>(1988):433.<\/p>\n

[7] David Buckley, Strange Fascination, David Bowie: The Definitive Story <\/em>(London: Virgin, 1999), 39.<\/p>\n

[8] United States Copyright Office, \u201cCopyright Royalty Rights: Section 115, the Mechanical License\u201d, http:\/\/www.copyright.gov\/carp\/m200a.html.<\/p>\n

[9] Harry Fox Agency, \u201cHFA Songfile\u201d, SongFile, http:\/\/www.harryfox.com\/public\/songfile.jsp.<\/p>\n

[10] Copyright Act 1976, section 115(a)(2).<\/p>\n

[11] Neil Drumming, \u201cKanye, why didn\u2019t Lauryn Hill get down?\u201d, Entertainment Weekly<\/em>, April 16, 2004, 78.<\/p>\n

[12] Andrew Beaujon, \u201cIt\u2019s Not the Beat, It\u2019s the Mocean\u201d, CMJ New Music Monthly<\/em>, April 1999.<\/p>\n

[13] Kembrew McLeod, \u201cHow Copyright Law Changed Hip Hop: An Interview with Public Enemy\u2019s Chuck D and Hank Shocklee\u201d, Stay Free, http:\/\/www.stayfreemagazine.org\/archives\/20\/public_enemy.html.<\/p>\n

[14] John Rieger, \u201cArt and Music Sampling: The Death of Creativity\u201d KPFA Radio Program #5-93 1st<\/sup> December 1993 (archived), Electronic Frontiers Foundation, http:\/\/www.eff.org\/IP\/Audio\/?f=art_and_music_sampling.paper.html.<\/p>\n

[15] Kembrew McLeod, Freedom of Expression: Overzealous Copyright Bozos and Other Enemies of Creativity<\/em> (United States: Doubleday Books, 2005), 86.<\/p>\n

[16] Tim Wu, \u201cJay-Z Versus the Sample Troll: The Shady One-Man Corporation That\u2019s Destroying Hip-Hop\u201d, Slate, http:\/\/slate.com\/id\/2153961.<\/p>\n

[17] Negativland, ed., Fair Use: The Story of the Letter U and the Numeral 2<\/em> (Concord: Seeland, 1995), 21.<\/p>\n

[18] Nate Harrison, \u201cCan I Get an Amen?\u201d, http:\/\/www.nkhstudio.com.<\/p>\n

[19] Tricia Rose, Black Noise: Rap Music and Black Culture in Contemporary America<\/em> (Middletown: Wesleyan University Press, 1994), 90.<\/p>\n

[20] Tim Wu, \u201cJay-Z Versus the Sample Troll: The Shady One-Man Corporation That\u2019s Destroying Hip-Hop\u201d, Slate, http:\/\/slate.com\/id\/2153961.<\/p>\n

[21] Tim Wu, \u201cJay-Z Versus the Sample Troll: The Shady One-Man Corporation That\u2019s Destroying Hip-Hop\u201d, Slate, http:\/\/slate.com\/id\/2153961.<\/p>\n

[22] Harper & Row, Publishers, Inc. v. Nation Enterprises 471 U.S. 539, 558 (1985).<\/p>\n

[23] United States v. Taxe, 380 F. Supp. 1010, 1014-15 (C.D. Ca. 1974)<\/p>\n

[24] Randy S. Kravis, \u201cDoes a Song By Any Other Name Still Sound as Sweet?: Digital Sampling and its Copyright Implications\u201d, Am. U. L. Rev.<\/em> 43 (1993):253; Jason H. Marcus, \u201cDon\u2019t Stop that Funky Beat: The Essentiality of Digital Sampling to Rap Music\u201d, Hastings Comm. & Ent. L. J.<\/em> 13 (1991):777.<\/p>\n

[25] United States v. Taxe, 380 F. Supp. 1010, 1015 (C.D. Ca. 1974).<\/p>\n

[26] United States v. Taxe, 380 F. Supp. 1010, 1015 (C.D. Ca. 1974).<\/p>\n

[27] Margaret Watson, \u201cUnauthorized Digital Sampling in Musical Parody: A Haven in the Fair Use Doctrine\u201d, W. New Eng. L. Rev.<\/em> 21 (1999):481.<\/p>\n

[28] Baxter v. MCA, 812 F. 2d 421, 423 (9th<\/sup> Cir. 1987).<\/p>\n

[29] Grand Upright Music Ltd. v. Warner Bros. Records, Inc. 780 F. Supp. 182, 185 (S.D.N.Y. 1991).<\/p>\n

[30] Margaret Watson, \u201cUnauthorized Digital Sampling in Musical Parody: A Haven in the Fair Use Doctrine\u201d, W. New Eng. L. Rev.<\/em> 21 (1999):483.<\/p>\n

[31] David Sanjek, \u201cDon\u2019t Have to DJ No More: Sampling and the Autonomous Creator\u201d, Cardozo Arts & Ent. L. J.<\/em> 10 (1992):619; Margaret Watson, \u201cUnauthorized Digital Sampling in Musical Parody: A Haven in the Fair Use Doctrine\u201d, W. New Eng. L. Rev.<\/em> 21 (1999):480.<\/p>\n

[32] Columbia Law School Arthur W. Diamond Law Library Music Plagiarism Project, \u201cGrand Upright v. Warner\u201d, http:\/\/ccnmtl.columbia.edu\/projects\/law\/library\/cases\/case_grandwarner.html.<\/p>\n

[33] Siva Vaidhyanathan, Copyrights and Copywrongs<\/em>, (New York, London: New York University Press, 2003), 143.<\/p>\n

[34] Grand Upright Music Ltd. v. Warner Bros. Records, Inc. 780 F. Supp. 182, 187 (S.D.N.Y. 1991).<\/p>\n

[35] Carrie McLaren, curator of the Illegal Art Show<\/em>, interviewed on Ben Franzen and Kembrew McLeod (2004):6m50sec.<\/p>\n

[36] Negativland, ed., Fair Use: The Story of the Letter U and the Numeral 2<\/em> (Concord: Seeland, 1995).<\/p>\n

[37] Jarvis v. A&M Records 827 F. Supp. 282, 295 (D.N.J. 1993).<\/p>\n

[38] Newton v. Diamond 349 F. 3d 591 (9th<\/sup> Cir. 2003).<\/p>\n

[39] J. C. Thom, \u201cComment, Digital Sampling: Old-Fashioned Piracy Dressed Up in Sleek New Technology\u201d, Lov. Enter. L. J. <\/em>8 (1988):336.<\/p>\n

[40] Bridgeport Music, Inc., et al<\/em> v. Dimension Films et al <\/em>383 F. 3d 397 (6th Cir. 2004).<\/p>\n

[41] Bridgeport Music, Inc., et al<\/em> v. Dimension Films et al<\/em> 383 F. 3d 397 (6th Cir. 2004).<\/p>\n

[42] Wired, \u201cFacing the Copyright Rap\u201d, http:\/\/www.wired.com\/news\/digiwood\/0,1412,64884,00.html.<\/p>\n

[43] Bridgeport Music, Inc., et al<\/em> v. Dimension Films et al<\/em> 383 F. 3d 400 (6th Cir. 2004).<\/p>\n

[44] Bridgeport Music, Inc., et al<\/em> v. Dimension Films et al<\/em> 383 F. 3d 392 fn. 5 (6th Cir. 2004).<\/p>\n

[45] Brennan Center for Justice at NYU School of Law and the Electronic Frontiers Foundation, \u201cBridgeport Music v. Dimension Films (2004) Amici Curiae<\/em>\u201d, The Free Expression Policy Project, http:\/\/www.fepproject.org\/courtbriefs\/bridgeport.pdf.<\/p>\n

[46] Brennan Center for Justice at NYU School of Law and the Electronic Frontiers Foundation, \u201cBridgeport Music v. Dimension Films (2004) Amici Curiae<\/em>\u201d, The Free Expression Policy Project, http:\/\/www.fepproject.org\/courtbriefs\/bridgeport.pdf; H. R. Rep. 94-1476, 1976 U.S.C.C.A.N. 5659, 5721.<\/p>\n

[47] Bridgeport Music, Inc., et al<\/em> v. Dimension Films et al<\/em> 383 F. 3d 397 (6th Cir. 2004).<\/p>\n

[48] Kenneth Achenbach, \u201cComment, Grey Area: How Recent Developments in Digital Music Production Have Necessitated the Reexamination of Compulsory Licensing for Sample-based Works\u201d N. C. J. L. & Tech. <\/em>6 (2004):199.<\/p>\n

[49] Kenneth Achenbach, \u201cComment, Grey Area: How Recent Developments in Digital Music Production Have Necessitated the Reexamination of Compulsory Licensing for Sample-based Works\u201d N. C. J. L. & Tech. <\/em>6 (2004):199.<\/p>\n

[50] Kenneth Achenbach, \u201cComment, Grey Area: How Recent Developments in Digital Music Production Have Necessitated the Reexamination of Compulsory Licensing for Sample-based Works\u201d N. C. J. L. & Tech. <\/em>6 (2004):200.<\/p>\n

[51] At the time of writing, the case had not been officially reported, but a transcript of the judgment can be downloaded at http:\/\/cyberlaw.stanford.edu\/system\/files\/EMI+v.+Premise+PI+Order.pdf (accessed 9th<\/sup> September 2008).<\/p>\n

[52] Aufderheide, P. and Jaszi, P. :Recut, Reframe, Recycle: Quoting Copyright Material in User-Generated Video\u201d, Center for Social Media: School of Communication, American University<\/em> (2008):3. URL (accessed 8th<\/sup> April 2008): http:\/\/www.centerforsocialmedia.org\/files\/pdf\/CSM_Recut_Reframe_Recycle_report.pdf.<\/p>\n

[53] Tim Wu, \u201cJay-Z Versus the Sample Troll: The Shady One-Man Corporation That\u2019s Destroying Hip-Hop\u201d, Slate, http:\/\/slate.com\/id\/2153961.<\/p>\n

[54] For a full discussion see S. Collins \u201cThe Greater Right of the Wrong\u201d (PhD. diss., Macquarie University, 2006).<\/p>\n

[55] Bernard Sch\u00fctze, \u201cSamples from the Heap: Notes on Recycling the Detritus of a Remixed Culture\u201d, Horizon Zero<\/em>, http:\/\/www.horizonzero.ca\/textsite\/remix.php?tlang=0&is=8&file=5.<\/p>\n

[56] Tim Wu, \u201cJay-Z Versus the Sample Troll: The Shady One-Man Corporation That\u2019s Destroying Hip-Hop\u201d, Slate, http:\/\/slate.com\/id\/2153961.<\/p>\n

Bibliography<\/h3>\n

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Aufderheide, P. and Jaszi, P. \u201cRecut, Reframe, Recycle: Quoting Copyright Material in User-Generated Video\u201d, Center for Social Media: School of Communication, American University<\/em> (2008). URL (accessed 8th<\/sup> April 2008): http:\/\/www.centerforsocialmedia.org\/files\/pdf\/CSM_Recut_Reframe_Recycle_report.pdf<\/p>\n

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\u201cThou shalt not steal\u201d \u2013 the (uncited) admonishment from Exodus 20:15 opened Judge Kevin Duffy\u2019s judgment in Grand Upright Music Ltd. v. Warner Bros. Records, Inc. 780 F. Supp. 182 (S.D.N.Y. 1991); a case concerned with two words that have become very familiar in the post-Napster world: music and piracy. But Grand Upright was neither […]<\/p>\n","protected":false},"author":8,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[60],"tags":[24],"class_list":["post-680","post","type-post","status-publish","format-standard","hentry","category-articles-editorials-provocations","tag-research","author-steve-collins"],"_links":{"self":[{"href":"https:\/\/www.arpjournal.com\/asarpwp\/wp-json\/wp\/v2\/posts\/680","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.arpjournal.com\/asarpwp\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.arpjournal.com\/asarpwp\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.arpjournal.com\/asarpwp\/wp-json\/wp\/v2\/users\/8"}],"replies":[{"embeddable":true,"href":"https:\/\/www.arpjournal.com\/asarpwp\/wp-json\/wp\/v2\/comments?post=680"}],"version-history":[{"count":4,"href":"https:\/\/www.arpjournal.com\/asarpwp\/wp-json\/wp\/v2\/posts\/680\/revisions"}],"predecessor-version":[{"id":1547,"href":"https:\/\/www.arpjournal.com\/asarpwp\/wp-json\/wp\/v2\/posts\/680\/revisions\/1547"}],"wp:attachment":[{"href":"https:\/\/www.arpjournal.com\/asarpwp\/wp-json\/wp\/v2\/media?parent=680"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.arpjournal.com\/asarpwp\/wp-json\/wp\/v2\/categories?post=680"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.arpjournal.com\/asarpwp\/wp-json\/wp\/v2\/tags?post=680"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}