To Sample or Not to Sample That is the Question!?

[Hip Hop Fan]

Finally a solid article on the topic!

By Sa'id

To really understand present copyright law, as it pertains to sampling, there are to things you must understand. First, the history of copyright law in America...

The present U.S. Copyright Law has undergone so many changes that most people wouldn't recognize it. For instance, did you know that there was a time where copyright protection did not extend pa** 8 years? Prior to the invention of recorded music, literary works were protected for just 8 years. After that, it was fair game. Think about that and ask yourself why?
As publishing companies emerged, republishing works - some by author's who work they bought outright and others who's works protection had simply expired - they consistently and rather successfully lobbied congress to make sweeping and significant changes to U.S. copyright law. In time, copyright law grew into the notion of "intellectual property rights". Now, please keep in mind that this term did NOT always exist... The notion of "ownership", with regards to literary works was a ambiguous question that swayed back and forth between an author of a work and a publisher who published a particular version of that work!

Next, to understand sampling in hip hop/rap correctly, one must first understand the context from which hip hop/rap music was created. Chief among the factors that made hip hop/rap possible in the first place was the industry-wide, long practiced tradition of versioning. Technology, in particular digital samplers, simply made more efficiently possible what had already been going on in the music industry...

Thus, the concept of what is or isn't the intellectual property of someone becomes mute, if the context of this question isn't properly considered. The effort and expense put into a work does not usurp the ability of someone to make a transformative, transgressive, and/or utterly unrecognizable derivative work - which for the most part is exactly how hip hop/rap beatmakers/producers use pre-recorded sounds...

Indeed, more than 100 years ago this question was already settled: one could not copyright an idea of music, but only a fixed ordered sequence of notes; anything considerably rearranged and obviously distant from the original work and the intent of the original work was not protected. Why? Because even back then, before recordings even existed, it was well understood that creative works where necessary to the development of future creative works. In short, it was understood that all creativity in and of itself is derivative; the question of copyright rests in one completed, 'frozen' form - at the time this was sheet music.

Musicians have always been able to incorporate ideas and actual phrases from other songs into their own. But the problem for which our generation is still grappling with deals acutely with the creation of phonorecords (recordings)... Bottom line: copyright law has not been updated to accommodate sampling technology. Oh, and keep this in mind, there is NO clause in current U.S. Copyright Law that expressly says that sampling is illegal! Why? Because Congress has yet to appropriately deal with the issue. Instead, they have left this for the courts to settle, (exemplified by the precedent set back in the 1992 Grand Upright Music, Ltd v. Warner Bros. Records Inc./Biz Markie Case). But guess what, the courts really didn't settle a damn thing, and well, sooner or later (probably sooner, if I have anything to do with it), Congress will have to appropriately deal with this matter.

Note to the above. This is a broad subject with many critical details, far too many for me to outline here in this post. But it is my hope that what I have written here has at least prompted you to begin looking at this issue in a new light. Also, I have written extensively about this, and will soon publish a book on the subject, entitled Bright Line Sample Rule: Hip Hop/Rap Music, The Art of Digital Sampling, and the Need for Fair Use Sound Recording Copyright Revision, as well as Sample Clearance Regulation. Hopefully, my book will help shed more clarity on this matter.

[rob_one]

Finally a solid article on the topic!

By Sa'id

To really understand present copyright law, as it pertains to sampling, there are to things you must understand. First, the history of copyright law in America...

The present U.S. Copyright Law has undergone so many changes that most people wouldn't recognize it. For instance, did you know that there was a time where copyright protection did not extend pa** 8 years? Prior to the invention of recorded music, literary works were protected for just 8 years. After that, it was fair game. Think about that and ask yourself why?
As publishing companies emerged, republishing works - some by author's who work they bought outright and others who's works protection had simply expired - they consistently and rather successfully lobbied congress to make sweeping and significant changes to U.S. copyright law. In time, copyright law grew into the notion of "intellectual property rights". Now, please keep in mind that this term did NOT always exist... The notion of "ownership", with regards to literary works was a ambiguous question that swayed back and forth between an author of a work and a publisher who published a particular version of that work!

Next, to understand sampling in hip hop/rap correctly, one must first understand the context from which hip hop/rap music was created. Chief among the factors that made hip hop/rap possible in the first place was the industry-wide, long practiced tradition of versioning. Technology, in particular digital samplers, simply made more efficiently possible what had already been going on in the music industry...

Thus, the concept of what is or isn't the intellectual property of someone becomes mute, if the context of this question isn't properly considered. The effort and expense put into a work does not usurp the ability of someone to make a transformative, transgressive, and/or utterly unrecognizable derivative work - which for the most part is exactly how hip hop/rap beatmakers/producers use pre-recorded sounds...

Indeed, more than 100 years ago this question was already settled: one could not copyright an idea of music, but only a fixed ordered sequence of notes; anything considerably rearranged and obviously distant from the original work and the intent of the original work was not protected. Why? Because even back then, before recordings even existed, it was well understood that creative works where necessary to the development of future creative works. In short, it was understood that all creativity in and of itself is derivative; the question of copyright rests in one completed, 'frozen' form - at the time this was sheet music.

Musicians have always been able to incorporate ideas and actual phrases from other songs into their own. But the problem for which our generation is still grappling with deals acutely with the creation of phonorecords (recordings)... Bottom line: copyright law has not been updated to accommodate sampling technology. Oh, and keep this in mind, there is NO clause in current U.S. Copyright Law that expressly says that sampling is illegal! Why? Because Congress has yet to appropriately deal with the issue. Instead, they have left this for the courts to settle, (exemplified by the precedent set back in the 1992 Grand Upright Music, Ltd v. Warner Bros. Records Inc./Biz Markie Case). But guess what, the courts really didn't settle a damn thing, and well, sooner or later (probably sooner, if I have anything to do with it), Congress will have to appropriately deal with this matter.

Note to the above. This is a broad subject with many critical details, far too many for me to outline here in this post. But it is my hope that what I have written here has at least prompted you to begin looking at this issue in a new light. Also, I have written extensively about this, and will soon publish a book on the subject, entitled Bright Line Sample Rule: Hip Hop/Rap Music, The Art of Digital Sampling, and the Need for Fair Use Sound Recording Copyright Revision, as well as Sample Clearance Regulation. Hopefully, my book will help shed more clarity on this matter.

Great article, thanks for that Rebirth.

I'm not sure I'd buy a book entitled "Bright Line Sample Rule: Hip Hop/Rap Music, The Art of Digital Sampling, and the Need for Fair Use, Sound Recording Copyright Revision as well as Sample Clearance Regulation".

I'd get bored before I'd finished reading the title.

Still, interesting point about there being no written illegality surrounding sampling. What was the outcome of the Bizmarkie case again?

[The KWEDZA HOD]

interesting topic.
I would belive that this question lies with many producers, i meet a kat the other day and he was on about paying royalties and stuff, but i guess it all comes down to the producers and what they want.

[Holstar]

Grand Upright Music, Ltd. v. Warner Bros. Records Inc.
(From Wikipedia, the free encyclopedia)

United States District Court for the Southern District of New York
December 17, 1991
Full case name:   Grand Upright Music Limited v. Warner Bros. Records Inc., WEA International Inc., Marcel Hall, professionally known as Biz Markie, Biz Markie Productions Inc., Cool V Productions Inc., Cold Chillin' Records Inc., Biz Markie Music Inc., Cold Chillin' Music Publishing Inc., Tyrone Williams, and Benny Medina
Citations:   780 F.Supp. 182, 1992 Copr.L.Dec. P 26,878, 22 U.S.P.Q.2d 1556, 1991 U.S. Dist. LEXIS 18276
Subsequent history:   None

Presiding judge
Kevin Thomas Duffy
Holding
That the Defendants had tried to secure a license from plaintiff prior to sampling its copyrighted song helped establish that their copyright infringement was knowing and intentional and that plaintiff was the valid copyright holder. Preliminary injunction granted.
Laws applied
Copyright Act of 1976 (not cited)


Grand Upright Music, Ltd v. Warner Bros. Records Inc., 780 F.Supp. 182 (S.D.N.Y. 1991), was a copyright case heard by the United States District Court for the Southern District of New York. The court granted an injunction against the defendants to prevent further copyright infringement of the plaintiff's song by sampling and referred them for criminal prosecution. The judgment changed the hip hop music industry, requiring that any future music sampling be preapproved by the original copyright owners to avoid a lawsuit.


The case

Biz Markie, a rapper signed to Warner Bros. Records, had sampled a portion of the music from the song "Alone Again (Naturally)" by singer/songwriter Gilbert O'Sullivan, for use in "Alone Again", a track from Markie's third album, I Need a Haircut. Biz Markie and his production and recording companies were listed as co-defendants with Warner Bros. in the subsequent lawsuit.

Judge Kevin Thomas Duffy granted an injunction against the defendant, Warner Bros. Records, despite Warner Bros.' claim that Grand Upright did not own a valid copyright in the sampled song. Warner Bros. denied that Grand Upright owned the copyright to the song, though Grand Upright produced documentation that O'Sullivan had transferred title to them, and O'Sullivan himself testified to that regard. It also appears that the defendants unsuccessfully urged the court to take note of how common unapproved sampling was in the industry, because the court noted that "the defendants...would have this court believe that stealing is rampant in the music business and, for that reason, their conduct here should be excused."

The decision received some criticism for stating that "the most persuasive evidence that the copyrights are valid and owned by the plaintiff" was that Warner Bros. had previously attempted to obtain permission to use the song. However, this would not legally establish that Grand Upright was in fact the owner, but only that Warner Bros.' believed that the song was copyrighted by someone, which would make their infringement knowing and willful. As Grand Upright had provided evidence that specifically established the copyright was theirs, the ruling did not hinge on this point, however.

The court wrote that "it is clear that the defendants knew that they were violating the plaintiff's rights as well as the rights of others. Their only aim was to sell thousands upon thousands of records. This callous disregard for the law and for the rights of others requires not only the preliminary injunction sought by the plaintiff but also sterner measures." The judge then referred the matter to a United States Attorney for criminal prosecution due to the defendants' intentional copyright infringement.


Impact on music

As a result of the court case, the sound of hip-hop music, heavily based upon combinations of various samples from various sources, was forced to change. Records such as those produced by The Bomb Squad for Public Enemy, filled with literally dozens of samples, were no longer possible: each and every sample had to be cleared to avoid legal action. Sample clearance fees prohibited the use of more than one or two samples for most recordings, with some original recording artists requesting up to 100% of the publishing for use of a sample. As a result interpolation (replaying the requested sample using new instrumentalists, and using the newly recorded version and simply paying the songwriters--and not the artist or the label--for use of the composition) became prevalent in the industry, especially in the work of Dr. Dre.

"Alone Again" is not available on current releases of Markie's Haircut album. His next album was entitled All Samples Cleared!

[The KWEDZA HOD]

LMAO at the next albums name

[J-oNE/Pat-B-Rick]

Too much reading.
Maybe tomorrow.