This article has been written by Anet Nderi, a student at Berklee College of
Music-Valencia, for the course “Business and Intellectual Property” in the Master
in Global Entertainment and Music Business
http://berkleevalencia.org/academic-programs/master-degrees/master-of-artsin-global-entertainment-music-business
The Fine Line between Sampling and Stealing
Anet Nderi
Contents page
Page No.
Introduction
3
Sampling and Hip-hop
4
Fair Use and Parodies
5
Acuff-Rose Music, Inc. v. Campbell
6
Grand Upright Music Ltd. v. Warner Bros. Records, Inc.
7
Personal Opinion and Conclusion
8 – 10
References
11
2
Introduction
Music producer Timbaland has this to say regarding sampling “have I
sampled? Hell yeah. I didn’t go to them and say, ‘Hey, I’m gonna steal your
beat.’”
Everything that has been created has been influenced by something and to a
certain extent; originality involves putting one’s personal stamp on an already
existing concept. As a fan of hip-hop music I am well aware of the use of
sampling, however I was not aware about all the legal issues surrounding this
grey area of copyright law.
The two cases that impacted sampling in hip-hop will be discussed in this
paper in an attempt to come to a conclusion to the age old question of
whether “sampling is stealing.”
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Sampling and Hip-hop
In the same way artists make art collages; hip-hop artists and producers use
samples to make a musical collage. Sampling is when a portion of a previous
recording is incorporated into a new recording. Using a prior recording without
permission is copyright infringement and there are severe penalties if found
guilty. The owner of copyright does not have to grant permission and if the
sample is used without permission, the sampled records may be destroyed
and damages paid to the copyright owner.
To use a sample, an artist must get permission from:

The copyright owner of the sound recording (i.e. record label) and/ or,

The copyright owner of underlying musical work (i.e. music publisher)
The license fees to use a sample vary depending on the following factors:

How much of the music is sampled

Popularity of music one intends to sample

Intended use of sample – i.e. will it form the hook of the new song
Sampling is the foundation of hip-hop music. However, with all the difficulties
in clearing samples, high costs and lawsuits many artists were put off
sampling in the 90s. A revival in the remix culture in the 2000s saw a
resurgence in sample use. In spite of this, hip-hop has steadily become more
commercialised, as many artists are not able to afford clearing samples.
The debate over sampling being stealing comes a conflict between creativity/
originality versus laziness/ theft. Should an artist use pieces of someone’s
song in his/her own version and need to pay royalties to the original owner?
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IP rights need to be respected, however if someone uses a sample in a new
way that does not harm the commercial viability of the original, should the
person who sampled be forced to share credits or royalties with the owner?
Most of the time the original owner benefits from the use of their work in a
new work as fresh attention is drawn to them and their work.
Fair Use and Parodies
Parodies are protected under the Fair Use Doctrine. Essentially, Fair Use
pokes fun at, criticises and imitates cultural and political icons. To determine
Fair Use the court considers the following factors:
1. Purpose and character of the work – did the artist of the new work do it
for profit or just to offer their opinion
2. Nature of the work – parody, satire, criticism and if this is obvious in the
new work
3. Amount and substantiality of the portion used in new work – how much
of the original is included in the new version
4. Effect of the use upon the potential market for the copyrighted work –
whether it will affect future or present sales of the old work
Parodies are considered as free expression and free speech, hence they are
more likely to be deemed as Fair Use, therefore consent from the copyright
holder is not needed. Although, Fair Use is helpful, it becomes extremely
controversial in sampling.
Additional criteria to be considered include:

Importance of sampled material

Frequency

Popularity of original

Degree of alteration to original

Attempts to negotiate licensing

Acknowledgement of original artist by sampling artist
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It is easy to see where confusion can arise when it comes to Fair Use and
sampling, which leads us to a landmark decision regarding parody, sampling
and Fair Use.
Acuff-Rose Music, Inc. v. Campbell
This is probably the leading case on Fair Use as it relates to musical parody.
Campbell (2 Live Crew) was sued by Roy Orbison’s record label over a rude
remake of Orbison’s classic "Oh, Pretty Woman." Campbell had asked for
permission to remake the song from Orbison’s label, however they refused to
grant him permission. Despite this, 2 Live Crew went on to make the song and
released it.
When the matter was taken to court, the court decided that 2 Live Crew’s
version “commented on” the earlier song and seemed to criticise it. They
reached a unanimous decision that 2 Live Crew’s version was a parody hence
was protected under Fair Use despite their version being released for
commercial gain. Since 2 Live Crew changed the lyrics and re-recorded the
bass riff, it was considered to be transformative enough. As stated, Fair Use
protects parody under the first factor (purpose and character of the work). In
addition, with parody a significant portion of the original has to be used in
order for it to be effective.
This controversial decision highlighted deficiencies in copyright law. The
decision on 2 Live Crew expanded the legal concept of Fair Use because their
version was limited in artistic value, contained mild criticism of the original and
had "lyrical content bordering on juvenile."
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Grand Upright Music Ltd. v. Warner Bros. Records, Inc.
The Biz Markie case changed the operating method of hip-hop music and
signalled a turning point in sampling. Although it did not decide an actual law,
it showed that people cannot simple sample without obtaining permission from
the original copyright owner.
Gilbert O’Sullivan accused biz Markie of copyright infringement for using a
sample of O’Sullivan’s “Alone Again” in Markie’s “I Need a Haircut.” Markie
tried to obtain clearance but was denied and he still went ahead to use the
sample in his version that was then released. O’Sullivan was out of the
mainstream music market at this time and the use of his song as a sample
made him relevant again. The presiding Judge Kevin Thomas Duffy ruled that
samples needed to be cleared before use and infamously stated, “thou shalt
not steal.” Warner Bros. (Biz Markie’s label) was forced to pay a large sum of
cash and remove the song from the album.
This case had a snowball effect on sampling and hip-hop, such as:

More similar cases on sampling started coming up

Pressured record labels to clear samples before releasing

Discouraged sampling artists from requesting use of sample since it
suggested infringement
The major problem with sampling is that it is not embraced or prohibited by
the Constitution, Copyright Act and court decisions; hence cases are dealt
with on a case-by-case basis.
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Personal Opinion
Sampling is the staple of hip-hop music however; due to the rising costs and
rampant litigation it has put a lot of people off this technique. The constant
threat of lawsuits looms heavy over artists and labels. In my view, it is not
stealing or a lack of creativity. There are various examples of how sampling
can help in an artist’s career. For example, Jason Derulo used a sample from
Imogen Heap’s “Hide and Seek” in his hit debut single “Whatcha Say” thus
paving the way for his following hits.
Furthermore, sometimes the sample used is so small and goes through so
much digital manipulation that the original owner does not “own” the sample in
new song as it has been completely transformed to the point that it is no
longer recognisable. In such a case, that original sample serves the purpose
of being a starting point from which an entirely new piece of work is created.
Having said that, I do believe that credit should still be given however,
royalties is another matter.
RZA, producer of the Wu-Tang Clan states that "the art form of hip-hop – the
sound that attracted us to it -- is diminishing," and "It's becoming just another
form of pop music." This is a direct consequence of the high prices involved in
clearing a sample which has in turn lead to an increase in using interpolation
which is when musicians re-record the sample, hence the master clearance
(song on the recording) is not need however the publishing clearance (written
music) is required, therefore only one copyright is paid which significantly
reduces costs. Dr Dre has made this technique popular.
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The music industry is constantly seeking new ways to create a fresh take on
nearly any song. Sampling and remixes provide this and are an important part
of the music industry. They enable recordings and songs to reach different
markets and different audiences from the ones they were initially designed for
and encourage a culture of sharing creative ideas.
I also believe that affordability of clearing samples limits most hip-hop artists.
Sampling has almost become exclusive and reserved for big artists like Jay Z
and Kanye West who can afford to pay large amounts of money to clear
samples. For example, Kanye West’s “Gold digger” which uses Ray Charles’s
“I got a woman” and more recently the collaborative project by Jay Z and
Kanye West “Otis” which featured an Otis Redding sample, these are clear
examples of both rappers wealth as they can afford to clear the use of
expensive samples. This is an issue with hip-hop, samples used to be the
core of the genre but now they are treated like trophies that are reserved for
the elite, which is limiting creativity. The high cost discourages producers,
which impacts all parties’ ability to make money.
Although it could be argued that this restriction has forced hip-hop artists to be
more creative and innovative, they can no longer freely pick and choose what
sample they want to combine on their track but instead ask themselves
whether that particular sample is really needed. In my opinion, sampling not
only generates money for the original song and new version but it adds a new
dimension to the original song by placing it in a different context. Sometimes a
sample is more obvious than at other times where it seamlessly integrates
itself into the new work.
Perhaps one of the reasons some view this way of creating music, as stealing
is because of the way it is done. You simply need to press a button rather
than moving your hands up and down an instrument. I think that a sampler
can be seen as an instrument in which a rapper takes sounds off it and
arranges them in their own way, to me that is creativity.
Since no laws exist regarding sampling but rather precedents set by courts
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outlining what you can and cannot do, it leaves the area of sampling very
murky. In my opinion, most of the time sampling is done in good conscience,
wholly knowing that you are using someone else’s work but with the intention
to use it in a different context and put your own spin on it. However, doubts
arise when one considers how much sampling is too much? How can this
guideline be enforced? This is difficult to determine since every creation is
different, hence courts make their decisions on a case-by-case basis.
To some sampling is very simple. If you want to use someone else’s work in
your work, pay them royalties. This is true to a certain extent but there are
always exceptions. Until some concrete rules are set many hip-hop artists will
continue to look for alternatives to sampling.
The US Copyright Act was written in 1976 before sampling technology,
therefore the law has not moved forward with technology which has caused
numerous issues and cases being settled out of court since the rules
regarding sampling are unclear.
Conclusion
In conclusion, as humans we justify when we copy others, however when
others copy us we vilify it. Although sampling may have negative connotations
associated with it, when it is done correctly and legally, a sampled piece of
music can be a stylish and fresh take on a classic or lesser-known song. In
my view, sampling is a form of art and not a lack of creativity hence not
stealing. After all, “copying is the best form of flattery.”
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References
Ben Rogerson “BLOG: Why Sampling isn’t stealing” Music Radar,
http://www.musicradar.com/news/tech/blog-why-sampling-isnt-stealing157446
Brabec, Jeffrey and Brabec, Todd. Music, Money and Success. 7th edn. New
York: Music Sales Corporation, 2011.
Don Snowden “Sampling: A Creative Tool or License to Steal?: The
Controversy” Los Angeles Times,
http://articles.latimes.com/1989-08-06/entertainment/ca-454_1_pop-music
Legal Information Institute “Campbell v. Acuff-Rose Music (92-1292), 510 U.S.
569 (1994)” Cornell University Law School,
http://www.law.cornell.edu/supct/html/92-1292.ZS.html
Lindenbaum, John. “Music Sampling and Copyright Law” Center for Arts and
Culture Policy Studies Princeton University
Matthew Newton “Is Sampling Dying?” Spin Music Group,
http://www.spin.com/articles/sampling-dying
Tomasz Rychlicki and Adam Zieliński “Is Sampling Always Copyright
Infringement?” WIPO Magazine,
http://www.wipo.int/wipo_magazine/en/2009/06/article_0007.html
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Trevor Paxton “Sampling in music a practice that’s here to stay” The State
Press,
http://www.statepress.com/2011/10/11/sampling-in-music-a-practice-that’shere-to-stay/
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