Richard D. Harrison
March 2005
‘Copyright Laws are Too
Harsh for Musicians Who
Sample’
Intellectual Property Law: LW556
Supervisor: Alan Story
Word Count: 5227
Richard Harrison
Intellectual Property Law
Supervisor: Alan Story
Glossary 1
Sample
1. Ascertain the momentary value of (an analogue signal) many times a
second so as to convert the signal to digital form
2. A small part of a song which has been recorded and used to make a new
piece of music
Sampler
1. An electronic device used to copy and digitally manipulate a segment
from an audio recording for use in a new recording
2. A person that takes samples
Sampling
The technique of digitally encoding music or sound and reusing it as part of a
composition or recording.
Judy Pearsall (ed), Concise Oxford English Dictionary, 10th edition (Oxford: Oxford University
Press 2002)
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Abstract
The emergence and advance of digitisation enabled new ways of
manipulating music and saw the birth of new genres. Sampling can been
seen to be at the forefront of this but is a copyright minefield due to the
concepts of ownership and unauthorised derivative works. The strict judicial
interpretation of what constitutes an unauthorised sample significantly stifles
the creativity of musicians who rely on the use and manipulation of samples
to create ‘new’ music. Laws dictate that this music is not really ‘new’ at all.
Musicians should be able to protect their work and heavy unauthorised use
of a single sample should be restricted though this dissertation argues that
the combination, disguise and reworking of sampled ‘snippets’ should be
free of the stranglehold of copyright and not susceptible to infringement
action. I argue that the ‘solution’ of sample clearance is an unaffordable
reality for aspiring musicians and though Creative Commons is an attractive
prospect its aspirations will also go unfulfilled. Copyright laws are exploited
by the dominant forces in the music industry and can be seen to have had a
direct effect on the ‘sound’ of the genres who rely on them thus changing
their essence altogether.
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And I’ll be damned if I hear another person say
That isn’t music because they’re not real instruments you play
Narrow minds will say this
But how many people can use a computer and play this
Call me a rapist
But we take you to levels (you never even knew) JamesNow some young people know you’re name
Bring fame to the dead and make Curtis sound hard-core
Now who could ask for more?
You want to change the law
And I deplore what you said about the way we made this
Sampled the drums but it don’t sound like how he played it
Music always stems from other people
Listen to the radio
The same melodies played time and time you know
Rave comes from electro
Electro comes from disco
You can put it all in the same mix
Thrash beats metal guitar from Jimi Hendrix and punk
Hip Hop from the funk
And some call it junk
You want to stop the chain of music, you’ll f*** up the whole system
And every single musician will be a victim .
--Braintax 2
2
Braintax, Chips on My Shoulder, on Fat Head EP (Low-life Records 1992)
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Richard Harrison
Intellectual Property Law
Supervisor: Alan Story
Introduction
As opening quotations go, this must seem spectacularly crass and severely
lacking in academic propriety. But context is all. Joseph Christie AKA the
‘underground’ UK hip-hip pioneer and producer Braintax, expresses his
disdain for the prejudicial views of the conservative world against musicians
who use the digital sampler as their exclusive tool of musical expression. The
capitalist construct of the ‘underground’ in the music industry is a term
synonymous with notions of impropriety and illegality. I use this lyric as an
ironic gesture of support to the sonic ‘outlaws’ of the underground, the
digital samplers who search for music of a bygone era, resurrect and
recontextualise it, thus giving it a new lease of life as part of a new
contemporary musical work.
If an artist is not established and signed to one of the labels at the head of
the music industry who can afford to pay for sample clearance, current
copyright laws will often serve to deny any large scale commercial release
of an independent sampler’s music.
The aspiring electronic musician’s
economic incentive to create is being diminished by the stranglehold of the
industry’s dominant record labels who exploit the statutory provisions in the
Copyright, Designs and Patents Act 1988 as a tool of oppression. The sample
clearance system as it stands has the force of the law behind it and either or
both need to change to ensure creativity and the production of new original
sample based music. The law at present does not function to cater for the
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shift that has occurred in popular culture and the advancement in music
technology, it stifles creativity and acts as a barrier to new aspiring
producers.
Sampling: Lazy Composition or Creative Transformation?
There are possibly two contrasting schools of thought on digital sampling:
1) The ‘Copy Right’ maintain sampling is a lazy technique of music
production as it extinguishes the function of the musician, a producer can
obtain what he needs from a single recording so a musician is no longer
needed. However, I argue that although this may be true to some extent,
the requirements of a producer may not make this financially viable. If a
producer wishes to sample an orchestral track, then the cost, time and
logistics of hiring an orchestra to fulfil his needs for possibly a five second
‘sample’ that he will loop, makes this simply impossible. However, it can be
argued that if the record companies get involved when a producer must
clear his sample, then the cost of clearing it would be higher than hiring
musicians to fulfil his needs.3 This view of digital sampling favours a strict
notion of the ownership of intellectual property therefore sampling is
essentially theft of a past-musician’s work if permission is not cleared. This
Chris Castle: Senior Counsel, Akin Gump Strauss Hauer & Feld LLP at CD Baby Independent
Music: Future of Music Coalition - Future of Music Summit May 3rd 2004
http://www.cdbaby.net/fom/000013.html (Acessed 18 February 2005)
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view maintains that all sampling is lazy regardless and intellectual property
laws exist to protect past creators.
2) The contrasting idea held by people who could be termed the ‘Copy Left’
favours the idea that intellectual property laws should also promote
creativity. Digital sampling is a thoroughly creative process and although
using previous copyrighted recordings in its creation, a unique sound collage
is created by a sampler combining this arrangement of sampled snippets.
Samplers should not be strangled by restrictive copyright laws as the sample
of the recording is quantitatively insubstantial.
I maintain a more liberal standpoint which does lean towards the Copy Left
but with qualification. I argue ‘good’ sampling and production should be
exempt from current copyright laws however ‘lazy’ sampling should still be
subject to royalty fees. However, this is presents a thorny legal issue as what
constitutes ‘good’ or ‘lazy’ sampling. The law purports to be neutral to
aesthetics as it will happily grant copyright in a good or bad book, an
uninteresting or superlatively beautiful song. The conflict between sampling
and copyright law simply brings this argument into full focus. 4
It is difficult to define what ‘good’ production using sampling is on paper.
Samplers often only use a few notes from a pre-recorded musical work and
Duke University School of Law: Music and Theft: Technology, Sampling and The Law. Video
presentation, Panellist 1 of panel 1: Anthony Kelley at: 00:05:39
http://realserver.law.duke.edu/ramgen/musicandtheft2002/musicpanel1.rm
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Supervisor: Alan Story
combine it into an entirely new multi-layered new musical work wherein the
sample is still perhaps slightly recognisable but it is only minimal. In my
opinion, by doing so, they have not used a substantial part of a previous
recording in its quantitative definition. However, they may have used the
most readily identifiable small segment of the track so qualitatively this
amounts to a substantial part. If the sample is small, it should be free of
illegality as the original performer’s or composer’s effort into producing or
playing that single note or phrase is minimal however an entire rhythm is
different and original owners of copyrights should be protected.5
This area of the law is a particularly grey area. Producers want guidance;
black and white rules and principles of how they can conduct creative legal
sampling of pre-recorded music. Producers want a quantitative decision
which would permit minimal use without sample clearance being needed, a
rule that permits samples of under 3 seconds for example. Anything more
than this would be subject to royalty fees on a sliding scale as to the extent
of the sample. A ruling such as this could, if obeyed enable many new artists
to emerge from this great incentive to create and achieve copyright
protection in their own right.
This is why Vanilla Ice had to settle out of Court with David Bowie and Queen for his hit’ Ice
Ice Baby’ which heavily sampled the rhythmical section of the Queen/David Bowie hit
‘Under Pressure.’ Royalties were held at 50%. Puff Daddy for his hit “I’ll Be Missing You”
heavily sampled the Sting and Police hit ‘Every Breath You Take’, royalties in this out of court
case were 100%.: Vanilla Ice, Ice Ice Baby on To The Extreme (SBK Records 1991);
Queen, Under Pressure on Hot Space (EMI: 1982); Puff Daddy, I’ll Be Missing You on No Way
Out (Bad Boy Entertainment: 1997); The Police, Every Breath You Take on Synchronicity (A&M
1983)
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Richard Harrison
Intellectual Property Law
Supervisor: Alan Story
Digitisation and the technology behind sampling 6
Before the emergence of digital audio and the endless opportunities it
offered, the hip hop DJs of late 1970s black urban America were the first
pioneers of live ‘sampling.’ 7 It is important to understand the emergence of
a genre which discarded all previous musical conventions, rules or ethics, in
understanding why it clashed with copyright to the extent that it did. The hip
hop DJ would use two turntables to confront their mainly African-American
audience
with
environment
additional
around
them.
acoustic
Snippets
effects
taken
from
from
television
the
jingles,
media
political
speeches, movie soundtracks and video games were commonly inserted
into these live-mixes to create a collage of sound.
8
By doing so, the DJ’s
would thus use the turntable as an instrument of its own. However, as DJing
was a manual technology, its range of effects was as limited as the manual
dexterity of a lone individual. 9
The invention of the digital sampler in the late 1970s was only enabled with
the introduction of digital audio. Digital audio enabled recorded sound to
be represented in binary code, hence computers could be involved in
The concept of sampling is highly technical in nature and thus texts are peppered with
unfamiliar terminology or jargon. A Sample is different from to sample and a sampler has
dual meanings therefore please refer to the glossary above for further guidance and an
explanation of the terminology I am using (See glossary above) .
7 Disc Jockeys. Kool Herc, Africa Bambaataa, Grand Wizard Theodore and Grandmaster
Flash were the main pioneers in this era.
8 J.J.Beadle, Will Pop Eat Itself? Pop Music in the Soundbite Era(London: Faber and Faber Ltd.
1993) 79
9 D. Sanjek, ‘”Don’t Have To DJ No More”: Sampling and the “Autonomous” Creator, (1992)
10(2) Cardozo Arts and Entertainment Law Journal 607, 612.
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Intellectual Property Law
Supervisor: Alan Story
sound reproduction for the first time. Opportunities to distort music in the
analogue format were limited though this new technology enabled this with
ease. Although the first samplers had a limited capabilities, modern samplers
are able to distort, speed up or slow down the sample, play it backwards,
filter and isolate individual components, loop them, rearrange them, an
almost endless number of possibilities to re edit the sample. The samples
taken from different records are then layered in a compositional
arrangement. An entire drum set can be pieced together from single strokes
from many different records. 10
Initially samplers were very costly but economies of scale soon enabled the
price of the sampler to tumble and thus the technology was soon within
reach of the consumer to exploit its capabilities.11 The sampler was and is a
very democratic tool which allows even those with little or no formal training
to create their own music. David Sanjek recognizes: ,“It is a longstanding
practice for consumers to customize their commodities, command their use
and meaning before they are commanded by them.”12
Consequently, hip hop DJ’s gleefully embraced the digital sampler as it
provided the necessary stepping stone to record and digitally manipulate
Alan Light (ed), The Vibe History of Hip Hop (New York: Three Rivers Press 1999), 170
“The first digital sampler appeared - the Fairlight CMI (Computer Musical
Instrument).initially cost £20,000 and, ironically, the manufacturers added the sampling
hardware at the last minute because they didn't see a use for it at the time. “ – Zero G
Digital Audio: About Copyright and Sample CDs http://www.zerog.co.uk/index.cfm?articleid=39 (Accessed 14 December 2004)
12 Ibid 607.
10
11
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Richard Harrison
Intellectual Property Law
Supervisor: Alan Story
the live collage of sound they created. However, the disregard of musical
convention, rules and any type of formalities in their art form was
instrumental in bringing a clash with copyright law and the owners of the
samples they used. The introduction of the sampler engendered a genuine
revolution in the way hip hop was made.
With the sampler, hip hop groups were able to make modern music out of
classical sounds to capture the quintessential funk and maintain the gritty
authenticity of old tracks re-recorded on state of the art equipment. The
introduction of the sampler raised great controversy, raising the question of
whether this practice was art or thievery. Certainly it was an homage to
resurrect the hits of the past and transform elements of them or combine
many hits to make a new contemporary work, however the record labels did
not see it this way.
Artists who made extensive use of sampling in creating new music had an
undisturbed ‘honeymoon’ period in the late 1980s and the very early 1990s
when the record industry were caught unawares as to the potential for
exploitation. Public Enemy voiced by the charismatic front man Chuck D, an
artist with significantly controversial views on the laws regarding sampling
and online music,13 were able to ‘run riot’ in this era without getting sued.
Public Enemy produced their 1988 album ‘It Takes a Nation of Millions to Hold
For further reading on Chuck D’s controversial views on line music see: “The Noisy War
Over Napster”, Newsweek, 5 June 2000
13
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Intellectual Property Law
Supervisor: Alan Story
Us Back’ which contained hundreds of samples without recognition in the
album sleeve.14 Similarly, other groups such as N.W.A, the Beastie Boys, Ice
Cube, De La Soul and Gang Starr
15,
were all free to create albums of high
critical acclaim using hundreds of un-cleared samples during this period,
before the restrictive ruling in Grand Upright v Warner (1991)16 was decided.
Although the big music companies had been caught unawares, they soon
took notice of the potential of this technology for abuse by producers
sampling their extensive back catalogues without permission. More money
could be made from long forgotten artists whose popularity had dwindled,
without increased expenditure.
Hip hop instigated a sampling revolution
and white corporate American wanted to cash in and contain black cultural
expression. Sampling and copyright law clashed thus the record labels
began to enforce their rights and drafted the lawyers in.
Copyright: The Current Law
“Thou shalt not steal.”17
When rapper Biz Markie sampled the melody from
Gilbert O’ Sullivan’s 1972 hit ‘Alone Again (Naturally)’18 for his song ‘Alone
Public Enemy, It Takes A Nation of Millions to Hold Us Back (Def Jam: 1988)
N.W.A., Straight Outta Compton (Priority Records: 1989); Beastie Boys, Paul’s Boutique
(Capitol/EMI Records: 1989); Ice Cube, Amerikkkas Most Wanted (Priority Records: 1990); De
La Soul, 3 Feet High and Rising (Tommy Boy Records: 1989); Gang Starr, Step In The Arena
(Noo Trybe Records: 1991).
16 Grand Upright v. Warner 780 F. Supp.182 (S.D.N.Y. 1991)
17 Exodus 20:15
18 Gilbert O’Sullivan, Alone Again (Naturally), on Himself (MAM 1972)
14
15
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Intellectual Property Law
Supervisor: Alan Story
Again’ on his 1991 album ‘I Need A Haircut,’19 Judge Kevin Thomas Duffy
opened with this (un attributed) Biblical admonition from Exodus. Gilbert O’
Sullivan denied Biz Markie the right to use the sample but Biz Markie ignored
this and Gilbert O’Sullivan filed suit. In his opinion, Judge Duffy likened Biz
Markie to a common thief, granted an injunction against future distribution of
the album and song, and referred the case to a U.S. district attorney for
possible criminal prosecution. Although Biz Markie never served time for his
alleged violation of the ‘Eighth Commandment,’ the case did set the
precedent for viewing unlicensed sampling as a crime. 20
Unauthorised sampling is theft.
If you want to be a jurisprudential purist
about it then this three word sentence sums the technique up.
21
However, I
know of no criminal convictions to date that have arisen because of a
copyright violation from sampling. The majority of legal precedent regarding
digital sampling stems from a discrete number of cases in the USA. In 1993
Jeremy J Beadle recognised the absence of English case law on copyright
infringement.
22
The most likely case to reach the English courts was in 1989
concerning ‘The Beloved’ sampling “a mere eight notes” from a CD by
Hyperion of compositions by medieval composer Abbess Hildegard of
Biz Markie, Alone Again, on I Need A Haircut (Warner Bros inc/Cold Chillin’ 1992)
Refer to note 15 supra.
21 Refer to note 7 supra at 197.
22 Refer to note 7 supra at 199.
19
20
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Supervisor: Alan Story
Bingen.23 The case reached a preliminary ruling in which the judge Hugh
Laddie QC indicated he had ‘some sympathy’ with the defendant’s
viewpoint and was prepared to let the case go on to full trial. However, it
was the plaintiff who ended up backing down as the defendants were a
much larger record label. Consequently, no legal precedent was set in the
UK regarding whether the size of the sample was an issue.
Twelve years on, little has changed.
A quick search on Westlaw reveals
precisely the same answer. In the UK, settling out of court is the norm in the
music industry when a sample has been taken without permission. Although
this case possibly offered some hope if it were to have proceeded to full trial,
samplers in the UK are justifiably wary of English Courts blindly following the
precedents set in the USA, preferring to settle out of Court rather than to
litigate through to judicial decision which could prove very costly.
In the United Kingdom, the provisions of the Copyright, Designs and Patents
Act 1988 (CDPA 1988) regulate the copyright system. Copyright subsists in
“original literary, dramatic, musical or artistic works” and in “sound
recordings, films or broadcasts.”
24
Section 16 of ‘the Act’ confers upon
J.Beadle refer to note 6 supra, Gothic Voices: A Feather on the breath of God: Sequences
and Hymns by the Abbess Hildegard of Bingen (LP [Hyperion, 1984}; The Beloved, The Sun
Rising (single) (East West, 1989)
24 Copyright, Designs and Patents Act 1988, section 1(1).
23
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Intellectual Property Law
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copyright owners five restricted, exclusive rights to control how, when or if
their copyright works may be used.25
Musicians who sample from sound recordings produce what are known as
secondary or derivative works defined in s. 5A(1)(b) of ‘the Act’ which
stipulates a sound recording is: “a recording of the whole or any part of a
literary, dramatic or musical work, from which sounds reproducing the work
or part may be produced, regardless of the medium on which the recording
is made or the method by which the sounds are reproduced or produced.”
Therefore copyright would certainly subsist in parts of previous recordings
which have been incorporated into the derivative work through sampling.
However, if these songs are highly original in their own right and permission
has been obtained and a fee paid to use the samples, then a sampler’s
derivative work is granted a copyright of its own.26 If a fee has not been
paid for a license to use the sample, then if the sampler attempts
commercial exploitation of his derivative work he may breach copyright on
up to three counts.
Copyright subsists in ‘the song’ otherwise known as the ‘composition right’
which will usually be owned by the music publisher. Copyright also subsists in
the recording, otherwise known as the ‘mechanical right’ which is usually
These restricted acts include(a) to copy the work, (b) to issue copies of the work to the
public, (ba) to rent or lend the work to the public, (c) to perform, show or play the work in
public,(d) to communicate the work to the public and (e) to make an adaptation of the
work or do any of the [above] in relation to an adaptation.
26 J.Davis, Intellectual Property Law, 2nd edition (London: Butterworths 2003) 106
25
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Intellectual Property Law
Supervisor: Alan Story
owned by the record label that issued the recording. The third right can be
seen as the moral right of an author (which always retain with the author and
cannot be assigned as with the actions in s.16). 27
When a producer samples a record without obtaining permission, he is
essentially breaching the composition and recording right.
Section 16(3) of
the CDPA 1988 qualifies the restrictions on the use of a work outlined in the
section and described above, in that the ‘act’ done must be “in relation to
the work as a whole or any substantial part of it.” It is this ‘substantial part’
qualification that provides the confusion due to a lack of UK case law on
sampling. A current misconception by these producers is that if they sample
a very small segment of a song, they will not be in breach. However, a
‘substantial part’ is defined qualitatively, not quantitatively. 28
The current test or consensus employed by producers on independent labels
in the music industry is one of ‘recognition,’ however as Jeremy J. Beadle
points out it, it is a defence as yet untested in the UK courts. 29 The large
record labels generally insist that recognition is a collateral fact and that if
any sample has been taken, it must be licensed. The misconception of what
constitutes a sample is primarily because no case law has emerged on this
subject from UK Courts. Producers and record labels have merely used the
For further commentary on the moral right see below. NB: a further right may be in the
lyrics to the composition however these are often usually both held by the copyright owner
in the composition.
28 J.Davis supra note 9 at 117 in reference to Lord Pearce in Ladbroke (Football) Ltd v William
Hill (Football) Ltd [1964] 1 All ER 465
29 Refer to note 8 supra, 78
27
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Intellectual Property Law
Supervisor: Alan Story
American precedents as a warning not to proceed to trial because of the
immense costs which they may potentially incur. Alternatively the large
record labels who own extensive back catalogues which are sampled may
not wish for an unfavourable precedent to be set in UK courts and a new
definition of ‘substantial part’ vis a vis sampling as it may potentially see the
lucrative market in sample clearance dry up.30
Because of the strict laws on copyright, producers attempt to find more and
more obscure sources to sample from and distort in a move to make their
sources unrecognisable, this is the common procedure DJ Shadow
employs.31
DJ Premier uses less obscure sources: “I love Hendrix, but if I
sampled him I would only use one of his drum beats or a hi hat, not a guitar
riff. Obscurity is the best part.”
32
We can see from this that certain producers
may see copyright law as a challenge and sampling a ‘game’ of sorts.
The most recent (US) case law on sampling which attempted to clarify this
grey area of the law is last year’s decision in Bridgeport Music v. Dimension
Films . 33 The ruling focuses on the 1990 N.W.A song "100 Miles and Runnin'."
34
The track samples a three-note guitar riff from a 1975 Funkadelic track, "Get
The Arts Law Centre of Australia: Music Sampling
http://www.artslaw.com.au/reference/003music_sampling/ (accessed 25 February 2005)
31 I am referring to obscurity in relation to the labels that the recording was released on may
have gone out of business and the artist dead or long forgotten.
32 Refer to note 13 supra at 172.
33 383 F. 3d 390 (6th Cir. 2004)
34 N.W.A., 100 Miles and Runnin, on Niggaz4Life (Priority Records: 1991)
30
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Intellectual Property Law
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Off Your Ass and Jam." 35 The sample, in which the pitch has been lowered, is
only two seconds long but is looped to extend to 16 beats and appears five
times throughout the track. If an audio comparison is made, this sample is
much more insignificant than the Biz Markie sample which made a greater
use of the original sound recording which signifies the tightening of the law in
this area and the vigilance of record labels who own the rights.
At first instance, the court ruled that the sample "did not rise to the level of
legally cognizable appropriation"36, which seemed a victory for samplers.
However, on appeal from the plaintiffs, the higher court saw a more different
view. They acknowledged that a “bright-line test” was needed for clarity in
the music industry in what constituted an actionable infringement in digital
sampling thus they questioned: “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.”
The case sets the current legal standpoint in the industry.
It rejects any
acceptance of fragmentary borrowings and supports fully a commercial
licensing position.
The law has sided with capitalist big business to the
detriment of the creator. This decision was a damaging blow to samplers
and stifled creativity even further.
In protest, the antagonists at
George Clinton Jr and the Funkadelics, Get Off Your Ass and Jam, on Let’s Take It To The
Stage (Westbound Records: 1975)
36 Technician online: Sampling the future
http://www.technicianonline.com/story.php?id=010041 (Accessed 15 January 2004)
35
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Intellectual Property Law
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Downhillbattlle.org posted the Funkadelic sample on their website and
invited people to remix it themselves.37
The Moral Right Dimension
The concept of Moral Rights, peculiar to signatories of the Berne Convention
38
and contained in sections 77 to 79 of the CDPA 1988, adds another twist to
the complex arrangement of copyrights that are possible in a musical work.
Even when a composer has assigned all of the ‘economic’ rights conferred
under s. 16 of the CDPA 1988 to a music publishing company, they still will
retain the moral right of paternity and integrity. This enables the composer to
prevent their music being used for particular works on moral, political or
religious grounds for example.
The rise of the internet has enabled music to be shared widely and easily thus
on a home computer, an amateur may create a ‘mashup’ which is where
two tunes of differing genres are mixed together to create a new sound.
Artists may insist on their moral rights in this sense if a commercial release of
these records are planned, although a lawyer representing record labels39
has stated that during his time spent dealing with sample clearance, it was
very rare for an original composer of a musical work to insist upon their strict
DownHill Battle, Music Activism: Three Notes and Runnin
http://www.downhillbattle.org/3notes/ (Acessed 22 December 2004)
38 Berne Convention for the Protection of Literary and Artistic Works 1886
39 Refer to note 4 supra.
37
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Intellectual Property Law
moral rights to oppose a release.
Supervisor: Alan Story
Even so, the situation could arise.
A
female artist may not wish to be sampled on a misogynist rap track or
someone with strict religious views may not wish to be sampled on something
they though was vile.
Although I believe copyright laws are at present too harsh on musicians who
sample, I can find no fault with the moral right of an composer not too see
his work ‘butchered’ especially if it is used to mix with a genre of particular
controversy such as gangsta-rap, the controversial sub genre of hip hop.
Copyright Laws as a Barrier To New Talent
The court in Bridgeport Music v Dimension Films did not think that their ruling
would stifle creativity in any significant way. However this perhaps shows the
judiciary’s ignorance towards as yet un established musicians who produce
sample based music. The American legal precedents frighten record labels
into rejecting many artists because of the extensive number of samples they
use. Human Being, a British sample based musician acutely sums up these
problems:
“I have encountered many problems because of sampling, mainly it
frightens labels... Humanity [album] got rejected several times because
labels didn't want the hassle of clearing over 500 samples. Today I found
that to even get a copyright/manufacturing license (to make my own
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records) I have to clear all my samples, it's like I'm being forced to lie. I
make music for fun, but sampling laws, and label hunting makes the
whole process exhausting. It really isn't easy to make it, even if your
expectations are small. sampling laws in general need much more
clarity and there should be a more defined rules of "fair use". The laws
right now are so stringent that your almost forced to break the law
(especially if your an independent artist). It's a catch 22, if I had the
money to purchase the instruments to create the sounds (or for that
matter, the money to pay for the samples), I would, but I don't so the
process of releasing a record is much more difficult.”40
This interview exemplifies the problems of an independent producer striving
for commercial success. Copyright laws have a stranglehold over them as
the financial demands it imposes for a legal release maintain that they may
well reside in the underground for the duration of their career or may well be
never to exploit their work commercially, being more of a hobby.
The established sample based musicians in the industry at present are only
established because they gained commercial success when sampling was
not ‘regulated’ as such as it is today. An aspiring sample based producer
will find it difficult if not impossible to secure a record deal today if they
sample heavily. This interview directly shows the stifling of creativity that is
The Beat Surrender,Online Music Magazine: Interview with Human Being
http://www.thebeatsurrender.co.uk/interviews/human-being/ (Acessed 14 January 2005)
40
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Intellectual Property Law
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occurring under the surface. Copyright laws are too harsh and neglect the
problems
it
causes
to
aspiring
musicians
attempting
to
succeed
commercially.
Fallacies in Sample Clearance
The current sample clearance system is particularly prejudicial and
financially oppressive.
Producers who sample heavily may not have a
problem if they have the backing of a large record label who are willing to
pay to clear each and every sample they have used in their work.
However, for a sampler on a small independent label or even for aspiring
unsigned producers (such as Human Being above), the official route of
sample clearance is unaffordable, time consuming and may cost more than
the records are expected to recoup, especially if they have a limited
pressing. Sample clearance will need to be achieved for every sample of
which there could possibly be hundreds on an album therefore the process
may take months to clear. Despite the lack of sample clearance on 3 Feet
High and Rising, the Biz Markie decision meant the 1991 release of De La Soul
is Dead had to be held back for several months as every sample was
scrupulously cleared (and is thus every sample scrupulously credited in the
accompanying album sleeve). 41
J.J. Beadle refer to note 6 supra , De La Soul: De La Soul is Dead (Tommy Boy Records:
1991)
41
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Richard Harrison
Intellectual Property Law
Supervisor: Alan Story
The costs of clearing a sample and the methods used to determine them
vary with the strength of the record label. A lump sum may be required or a
lump sum and a percentage of the royalties. If the album is not a success
then this can prove devastating to smaller record labels and the album may
go into negative royalties such as Black Sheep’s 1991 release, A Wolf in
Sheep’s Clothing.42 An independent record label wary of poor record sales
will see this as a barrier to obtaining clearance so may not seek it altogether.
If sample clearance is not obtained in advance and the song is a success
then 100% of the royalties may be lost to the uncleared sample’s copyright
holders.
The primary reasoning for this, regards the imbalance of bargaining power
between the large record labels and the smaller independent labels or
artists. This severely restricts an artist’s ability to negotiate a favourable deal
when clearing a sample if they have little financial resources. Artists must not
sample without obtaining permission and paying for every sample they use,
or they face the cost of litigation in which the law’s favour of capitalism and
the strict notions of ownership and authorship of intellectual property
inevitably prevail.
Agencies such as the MCPS
43
only offer a means for artists who sample to
establish contact with music publishers and record labels however the
42
43
Refer to note 40 supra, Black Sheep, A Wolf In Sheep’s Clothing (Mercury Records 1991)
Mechanical Copyright Protection Society: http://www.mcps.co.uk/.
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Richard Harrison
Intellectual Property Law
Supervisor: Alan Story
ultimate negotiating is done between the labels themselves.
This is not
negotiation at all as the larger labels simply decide what price they wish to
charge to grant a license to use the mechanical right in the sound
recording.44 The independent labels or artists must ultimately simply accept
this price (which can be up to ₤2000) or face the wrath of the company in
litigation if they do not comply. As the antagonists at downhillbattle.org
recognise: “Requiring artists to get authorization does not just put a hurdle in
their way, it makes most sample based music impossible to create legally
because of overwhelming financial and legal burdens.”45
This official, legally acceptable route remains a financially unviable option
for the majority of artists not signed to one of the dominant players in the
industry as they may utilise hundreds of sampled snippets throughout their
recording and will need to ‘clear’ every one. The continued emergence of
illegal ‘white label’ releases highlight this issue. Sample clearance is simply
not an option for the smaller labels thus they continually break the strict laws
of copyright. To ensure uniform legality through all tiers of the music industry,
the sample clearance system needs to be revolutionised or discarded
altogether.
Original UK Hip Hop: A beginner’s guide to sample clearance
http://www.ukhh.com/features/articles/twizt/5.html (Accessed 3 February 2005).
45 Refer to note 39 supra
44
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Richard Harrison
Intellectual Property Law
Supervisor: Alan Story
Solutions
i) sample clearance
The current sample clearance system is tailored to suit the larger companies
in the music industry and is prejudicial for reasons outlined above. To insure
legal conformity throughout the music industry, the current system must
either be discarded altogether or the royalty payments regulated to an
extent they are affordable and permission can be obtained swiftly. This may
occur with placing a cap on the number of units that may be produced
before sample clearance needs to occur however at present any
commercial release is illegal without a license.
ii) Royalty free-music and the Creative Commons
Another option open to samplers who wish to commercially exploit their work
without fear of infringing copyright is by using royalty free music. Discs
specifically created for sampling can be obtained by certain companies
who specialise in this field such as Zero-G.
46
In recent years, certain non
profit organisations such as MACOS47 or Lawrence Lessig’s Creative
Commons have also been setup primarily as a result of the growing criticism
of strict laws on copyright as a barrier to creativity.
Zero-G Digital Audio Samples http://www.zero-g.co.uk (Accessed 13th January 2004)
Musicians Against Copyrighting of Samples http://www.icomm.ca/macos/ Accessed
February 26 January 2005)
46
47
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Richard Harrison
Intellectual Property Law
Supervisor: Alan Story
The Creative Commons offer a licensing system for creators to easily adopt
and tag works which may be freely sampled as well as providing a search
utility for potential users to find the music to sample.48 It is a form of preemptive licensing where creators keep their copyright but license certain
rights of use to the individual by adopting one of three types of license on a
sliding scale. By using a Creative Commons licensed source, samplers may
find it easier to legally release their work. Creators may also benefit and see
a dramatic increase in fees obtained by licensing, and may also receive
notoriety and a possible new revenue stream.
As such, the Beastie Boys
who are prolific samplers themselves have released their own music under a
Creative Commons license for users to freely remix and they have received
media attention as a result.49
However, I cannot see that the Creative Commons license is a big enough
step at present for musicians who sample. Part of the culture involved in
sampling is by searching through dusty crates of old records, not just remixing new music.
For the license to be fully effective a significant number
of recording artists have to grant permission to sample under the ‘SamplingPlus licence’ which permits commercial use of the work.50 It may also be
difficult to get older copyrighted works participating in the license scheme.
Creative Commons: Sampling Licenses
http://creativecommons.org/license/sampling?format=audio
49 Wired Magazine: Creative Commons and Sampling
http://wired.com/wired/archive/12.11/sample (Accessed 26 January 2005)
50 Refer to note 51 supra : Although the Beastie Boys, Chuck D and David Byrne all have
released songs under a Creative Commons License and received media attention, all of
these tunes still denied the user the right to commercially exploit the work.
48
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Richard Harrison
Intellectual Property Law
Supervisor: Alan Story
Without a wide variety of material available, from old sources, samplers will
be put off by this deficiency. As attractive as it may sound, the Creative
Commons is not a viable solution for musicians who sample from old records.
iv) don’t sample?
Many musicians today prefer not to sample at all. After a series of cases in
the USA during the 1990s which began with the Biz Markie decision, many
artists turned their back on sampling the work of others for fear of losing their
own royalty payments to cover the clearance of samples. Although this
promotes creativity to create entirely new musical works it has significantly
affected the sound of hip hop music which has lost the essence of funk and
soul it once had. Copyright laws and judicial interpretations of them, were
instrumental in changing the sound of the genre altogether.
Alternatively, musicians such as Dr Dre, wary of the high costs of clearing the
rights of the record labels in the sound recording, opted instead to
interpolate the work. That is to say these musicians brought live musicians
into the studio to replicate the sound on the recording. In this way, costs
were minimised as only the composition rights had to be cleared.
27
Richard Harrison
Intellectual Property Law
Supervisor: Alan Story
iii) blanket licensing
The current sample clearance system needs to change. Although none of
these solutions
are fully workable, a blanket license would mean that
producers who use samples would pay an annual license fee to the MCPS
who would distribute royalties to the composers and record labels used. A
similar blanket license exists when works are played or shown in the media.
The Performing Rights Society
51
grant a blanket license to television and
radio producers to use music in their programmes and a blanket licensing
system could be a possible option. However, when moral rights are taken
into consideration the argument for such a scheme loses weight.
Conclusions
The war on unauthorised sampling epitomises the contemporary clash in
intellectual property between the capitalist preservation of the fiscal value of
intellectual property in the notions of authorship and ownership, and the
conflicting view that the strict grasp of these notions stifle creativity and
expression.
Law makers suggest the raison d’etre of intellectual property
laws are to protect the economic interests of creators from un-licensed
exploitation.
By doing so the laws exist as an incentive to create but
paradoxically in the post-modern era of digital sampling, this is precisely
what they are inhibiting.
51
Performing Rights Society: http://www.prs.co.uk/ (Accessed 27 February 2005)
28
Richard Harrison
Intellectual Property Law
Supervisor: Alan Story
The law is outdated and should embrace the change in popular culture
rather than inadvertently treat it with such abhorrence by the exploitation of
the industry who use it as their shield.
Time is ripe for either a statutory
amendment to define ‘substantial part’ in relation to sampling, or a judicial
interpretation of this ambiguous term. A change is needed to embrace and
recognise the shift in popular culture and contemporary techniques in music
production, present in our world today. The law needs clarification and a
compromise needs to be achieved for the good of contemporary music
and its continued development.
29
Richard Harrison
Intellectual Property Law
Supervisor: Alan Story
Bibliography
Statutes & Instruments
Berne Convention for the Protection of Literary and Artistic Works 1886
Copyright, Designs and Patents Act 1988
Cases
Bridgeport Music v. Dimension Films 383 F. 3d 390 (6th Cir. 2004)
Grand Upright v. Warner 780 F. Supp.182 (S.D.N.Y. 1991)
Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 All ER 465
Articles
S.Frith, Art versus Technology: The Strange Case of Popular Music, 8 Med.,
Culture & Soc’y 263, 275 (1986)
D. Sanjek, ‘”Don’t Have To DJ No More”: Sampling and the “Autonomous”
Creator, (1992) 10(2) Cardozo Arts and Entertainment Law Journal 607, 612.
30
Richard Harrison
Intellectual Property Law
Supervisor: Alan Story
M. Stevens ‘How record labels have used intellectual property rights to
obtain a dominant hold on the global market and the potential role parallel
importing, anti-competition law and on-line distribution have in breaking
this.’ Kent Law School Intellectual Property Law Dissertation April 2002
https://www.kent.ac.uk/law/undergraduate/modules/ip/resources/ip_dissert
ations/Diss-Stevens.doc (Accessed February 26 2005)
“The Noisy War Over Napster”, Newsweek, 5 June 2000
Books
J.J.Beadle, Will Pop Eat Itself? Pop Music in the Soundbite Era(London: Faber
and Faber Ltd. 1993) 79
Christie A and Gare S (eds), Statutes on Intellectual Property Law, 7th edition,
2004, Blackstones.
J.Davis, Intellectual Property Law, 2nd edition (London: Butterworths 2003)
Alan Light (ed), The Vibe History of Hip Hop (New York: Three Rivers Press
1999), 170
31
Richard Harrison
Intellectual Property Law
Supervisor: Alan Story
Judy Pearsall (ed), Concise Oxford English Dictionary, 10th edition (Oxford:
Oxford University Press 2002)
S.Vaidhyanathan “Copyrights and Copywrongs: The Rise of Intellectual
Property and How It Threatens Creativity”, New York University Press, New
York 2003.
Websites
The Arts Law Centre of Australia: Music Sampling
http://www.artslaw.com.au/reference/003music_sampling/ (accessed 25
February 2005)
The Beat Surrender,Online Music Magazine: Interview with Human Being
http://www.thebeatsurrender.co.uk/interviews/human-being/ (Accessed 14
January 2005)
Creative Commons: Sampling Licenses
http://creativecommons.org/license/sampling?format=audio
CD Baby Independent Music: Future of Music Coalition - Future of Music
Summit May 3rd 2004 http://www.cdbaby.net/fom/000013.html (Accessed 18
February 2005)
32
Richard Harrison
Intellectual Property Law
Supervisor: Alan Story
Duke University School of Law: Music and Theft: Technology, Sampling and
The Law. Video presentation, Panellist 1 of panel 1: Anthony Kelley at:
00:05:39
http://realserver.law.duke.edu/ramgen/musicandtheft2002/musicpanel1.rm
DownHill Battle, Music Activism: Three Notes and Runnin
http://www.downhillbattle.org/3notes/ (Accessed 22 December 2004)
Mechanical Copyright Protection Society: http://www.mcps.co.uk/.
Musicians Against Copyrighting of Samples http://www.icomm.ca/macos/
Accessed February 26 January 2005)
Original UK Hip Hop: A beginner’s guide to sample clearance
http://www.ukhh.com/features/articles/twizt/5.html (Accessed 3 February
2005).
Performing Rights Society: http://www.prs.co.uk/ (Accessed 27 February
2005)
Technician online: Sampling the future
http://www.technicianonline.com/story.php?id=010041 (Accessed 15
January 2004)
33
Richard Harrison
Intellectual Property Law
Supervisor: Alan Story
Wired Magazine: Creative Commons and Sampling
http://wired.com/wired/archive/12.11/sample (Accessed 26 January 2005)
Zero G Digital Audio: About Copyright and Sample CDs http://www.zerog.co.uk/index.cfm?articleid=39 (Accessed 14 December 2004)
34