Digital Music Sampling: The US Scenario

Sampling is taking a small element of music recording and re-proportionating it into a new piece of work. Samples are very short snippets that are highly manipulated and completely re-contextualized. The method is predominantly used in the genres of rap, hip-hop, electronic dance music and rock.

With a technique called digital sampling, the sound of slamming of a car door or a dog barking can be turned into music that can be played at any pitch. These sounds are captured and stored as numerical values on floppy disks; to clone sounds, the sampler merely recalculates the number of values. Flip a switch and you can “sample” patches of existing recordings. If you don’t like it as a violin, punch a key and it’s a saxophone. If you want to see it as sheet music, print it with a personal computer. Sampling has always remained an evident phenomenon in the musical fraternity.

In the earliest days, sampling was an underground phenomenon. The only people who used the technique made very little money and received almost no mainstream attention. As such sampling artists were completely ignored by the music industry.

By the mid-1980s, rap music was burgeoning and samplers still remained inexpensive, but only when rap became a profitable musical genre, did the artists of the original musical piece begin to take legal action and suing samplers for copyright infringement.

Legislation:

Sampling music has always been a contentious issue in copyright law because under 17 U.S.C. § 114(b) of the U.S Copyright Act, recording copyright owners are only given the right “to duplicate the sound recording,” whereas other tangible forms of expression like books, movies and musical compositions enjoy a broader range of copyright protection from reproduction or imitation of significant aspects of the works, such as copying a plot, memorable characters, or a melody.

Licensing can render sampling legal:

However, under the compulsory licensing policy of the U.S Copyright Law there is a provision that allows a person to distribute a new sound recording of a musical work, if that has been previously distributed to the public, by or under the authority of the copyright owner, and there is no requirement that the new recording be identical to the previous work, as the compulsory license includes the privilege of rearranging the work to conform it to the recording artist’s interpretation.

This privilege is granted only when the sampling artists have paid a certain sum of royalty to the original artists in order to render their work legal.

But in order to avoid the payment of heavy royalties the samplers undertake unauthorized fixation of their work regardless of the stringent copyright policies subsisting in the U.S.

Renowned Samples:

Sampling can be traced back as far as 1961, when James Tenney created Collage #1 “Blue Suede” from samples of Elvis Presley’s recording of the song “Blue Suede Shoes.”

The Beatles also used the technique on a number of popular recordings which include “Yellow Submarine”, “Revolution 9” and “I Am the Walrus”.

Timothy Leary also sampled The Beatles and the Rolling Stones on his album “You Can Be Anyone This Time Around” in 1970.

Sampling norm in popular music which consisted of live studio bands did not back up with much popularity, but the sampling industry really blossomed when the Hip-Hop producers pioneered with their rap records.

Earliest examples of this practice includes Grandmaster Flash’s- The Adventures of Grandmaster Flash on the wheels of steel sampled with “Apache” break by the “Incredible Bongo Band”; Brother D and the Collective Effort’s “How We Gonna Make The Black Nation Rise” which sampled the beat and bass-line from Cheryl Lynn’s 1978 hit “Got To Be Real”.

In the early 1980s, the album by David Byrne and Brian Eno “My Life in the Bush of Ghosts” used sampling extensively for the songs’ vocals.

“Vanilla Ice” sampled the bass-line of 1981 song ‘Under Pressure” by Queen and David Bowie for his 1990 single “Ice Ice Baby”. Freddy Mercury and David Bowie did not receive any credit or royalties for the sample. But Van Winkle later gave them song-writing credit.

Defenses which pull through these samples:

The samplers generally sought to two defenses in order to save their samples. First is the defense of fair use and the second being the doctrine of de minimis usage.

The fair use doctrine is generally directed to works which are non-commercial. Mostly, the copyrighted works which are used for educational purposes, research, news reporting and reviewing can claim fair use defense. There are four rules laid down in the section 107 of the U.S. Copyright law which are the limitations on the copyright law:

• • The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
  • The nature of the copyrighted work
  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  • The effect of the use upon the potential market for, or value of, the copyrighted work

The second defense, namely the principal of de minimis usage can be applied in cases where the changes are minimal and there is no evidence of substantial similarity. Generally the works which subsist in the public domain can be utilized to a certain extent, which would fall under the ambit of de minimis usage.

Samples which survived and those which didn’t:

U.S Federal court over-ruling in the case of Biz Markie’s album “I Need a Haircut” which used sample from Gilbert O’Sullivan’s “Alone Alone Again” sought a preliminary injunction against defendants for the improper and unlicensed use of the song, “Alone Again (Naturally).” Defendants’ album contained a rap recording entitled “Alone Again,” which used three words from plaintiff’s song and a portion of the music taken from the original recording. In making a determination, the court was required to determine the owner of the copyrights to the original song and to the master recording made by the original artist.

The court determined that plaintiff was the true owner of the copyrights because original copyrights were deeded to plaintiff, the original artist testified that plaintiff was the owner of the copyrights, and defendants had contacted plaintiff to obtain a license before the release of the album. Since defendants violated plaintiff’s rights intentionally, the court granted injunctive relief and referred the matter to a United States Attorney to consider criminal prosecution.

The case led to legal concerns in the music industry in relation to the sampling artists. This gave them an impetus to attract more samplers due to the heavy compensation they got in return.

In 1997, Verve released its hit single “Bitter Sweet Symphony”. The song used an inverted sample from the obscure orchestral tribute to the Rolling Stones the last time for its hook. The Verve could actually ask verbal permission to use the sample, but they were sued anyway for using too much of it. Their song “Bitter Sweet Symphony” leans heavily on the sample, but it also featured completely original structure and instrument nonetheless, the band was successfully sued by the Rolling Stones. They lost all profits to the band and were denied of song-writing credit even though they had nothing to do with the recording.

D.J Danger Mouse cut up samples for their “Grey Album” from The Beatles celebrated “The White Album” and from the American rapper Jay-Z’s “Black Album”. EMI who held copyright to The Beatles recordings immediately filed injunction to prevent distribution. The pace of the album’s enormous popularity invited critical acclaim.

In Bridgeport Music Inc. v. Dimension Films the specific copyrighted recording was a three-note combination from a solo guitar. There was no dispute that the filmmaker’s recording of a rap song contained a sample of that guitar solo. The trial court used a de minimis analysis to determine that the sampling did not rise to the level of a legally cognizable appropriation. On review, the court reversed on the ground that no de minimis inquiry was necessary where the filmmaker did not dispute that it digitally sampled a copyrighted sound recording. Where there was no authorization, infringement was established.

It also made clear that its ruling applied only to digital sampling of sound recordings protected by valid copyrights.

Conclusion:

Not all legally sampled songs are universally acclaimed.

Sampling has been widely derided as highly ‘derivative riding’ on the catchiness of music sample instead of original creativity. All the same to broadly condemn the practice would be to suppress vibrant and colorful bane of creativity in today’s music culture. Indeed it seems to run contrary to the very purpose of copyright law.

Goal of copyright law is essentially to encourage creativity. In order to do that, they must offer incentives to artists to create new work. If an artist is given no legal control over what they have created then their work is instantly devalued because they can be distributed and used freely by anyone anywhere.

Obviously this is problematic and no artist would ever be able to profit of their work. On the other hand artists cannot be given absolute control over their output as this would prevent anybody from using their work for discourse or criticism or supplementation. Law should provide artists with tough control to compel the creation of new works but not so much to suppress the creation of new created works.