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Richard D. Harrison March 2005

‘Copyright Laws are Too Harsh for Musicians Who

Sample’

Intellectual Property Law: LW556

Richard Harrison Intellectual Property Law Supervisor: Alan Story

Supervisor: Alan Story Word Count: 5227Glossary 1

Sample1. Ascertain the momentary value of (an analogue signal) many times a second so as to convert the signal to digital form2. A small part of a song which has been recorded and used to make a new piece of music

Sampler1. 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

SamplingThe technique of digitally encoding music or sound and reusing it as part of a composition or recording.

1 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 sayThat isn’t music because they’re not real instruments you playNarrow minds will say thisBut how many people can use a computer and play thisCall me a rapistBut we take you to levels (you never even knew) James-Now some young people know you’re nameBring fame to the dead and make Curtis sound hard-coreNow who could ask for more?You want to change the lawAnd I deplore what you said about the way we made thisSampled the drums but it don’t sound like how he played itMusic always stems from other peopleListen to the radioThe same melodies played time and time you knowRave comes from electroElectro comes from discoYou can put it all in the same mixThrash beats metal guitar from Jimi Hendrix and punkHip Hop from the funkAnd some call it junkYou want to stop the chain of music, you’ll f*** up the whole systemAnd 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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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 shift that has occurred in

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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 view maintains that all sampling is lazy regardless and intellectual

property laws exist to protect past creators.

3 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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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 combine it into an entirely new multi-layered new musical work

4 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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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.

Digitisation and the technology behind sampling 6

5 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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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 additional acoustic effects taken from the

media environment around them. Snippets from television jingles,

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 sound reproduction for the first time. Opportunities to distort

music in the analogue format were limited though this new technology

6 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) 799 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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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

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

10 Alan Light (ed), The Vibe History of Hip Hop (New York: Three Rivers Press 1999), 17011 “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.zero-g.co.uk/index.cfm?articleid=39 (Accessed 14 December 2004) 12 Ibid 607.

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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 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 13 For further reading on Chuck D’s controversial views on line music see: “The Noisy War Over Napster”, Newsweek, 5 June 200014 Public Enemy, It Takes A Nation of Millions to Hold Us Back (Def Jam: 1988)15 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).

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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 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.

16 Grand Upright v. Warner 780 F. Supp.182 (S.D.N.Y. 1991)17 Exodus 20:1518 Gilbert O’Sullivan, Alone Again (Naturally), on Himself (MAM 1972)19 Biz Markie, Alone Again, on I Need A Haircut (Warner Bros inc/Cold Chillin’ 1992)

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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 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.

20 Refer to note 15 supra.21 Refer to note 7 supra at 197.22 Refer to note 7 supra at 199.23 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)

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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 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

24 Copyright, Designs and Patents Act 1988, section 1(1).25 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.

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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 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

26 J.Davis, Intellectual Property Law, 2nd edition (London: Butterworths 2003) 10627 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.

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‘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 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

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 46529 Refer to note 8 supra, 7830 The Arts Law Centre of Australia: Music Sampling http://www.artslaw.com.au/reference/003music_sampling/ (accessed 25 February 2005)

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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 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.

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)35 George Clinton Jr and the Funkadelics, Get Off Your Ass and Jam, on Let’s Take It To The Stage (Westbound Records: 1975)

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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

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

36 Technician online: Sampling the future http://www.technicianonline.com/story.php?id=010041 (Accessed 15 January 2004)37 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

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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 moral rights to oppose a release.

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.

39 Refer to note 4 supra.

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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 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

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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 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 40 The Beat Surrender,Online Music Magazine: Interview with Human Being http://www.thebeatsurrender.co.uk/interviews/human-being/ (Acessed 14 January 2005)

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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

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.

41 J.J. Beadle refer to note 6 supra , De La Soul: De La Soul is Dead (Tommy Boy Records: 1991)42 Refer to note 40 supra, Black Sheep, A Wolf In Sheep’s Clothing (Mercury Records 1991)

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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

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

43 Mechanical Copyright Protection Society: http://www.mcps.co.uk/. 44 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

23

http://www.ukhh.com/features/articles/twizt/5.html

http://www.mcps.co.uk/


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.

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

24


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.

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 pre-emptive 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

46 Zero-G Digital Audio Samples http://www.zero-g.co.uk (Accessed 13th January 2004) 47 Musicians Against Copyrighting of Samples http://www.icomm.ca/macos/ Accessed February 26 January 2005)48 Creative Commons: Sampling Licenses http://creativecommons.org/license/sampling?format=audio49 Wired Magazine: Creative Commons and Sampling http://wired.com/wired/archive/12.11/sample (Accessed 26 January 2005)

25

http://wired.com/wired/archive/12.11/sample

http://www.icomm.ca/macos/

http://www.zero-g.co.uk/


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 re-

mixing new music. For the license to be fully effective a significant

number of recording artists have to grant permission to sample under the

‘Sampling-Plus licence’ which permits commercial use of the work.50 It

may also be difficult to get older copyrighted works participating in the

license scheme. 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.

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.

26


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.

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.

51 Performing Rights Society: http://www.prs.co.uk/ (Accessed 27 February 2005)

27


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.

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.

28


Bibliography

Statutes & Instruments

Berne Convention for the Protection of Literary and Artistic Works 1886

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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

29


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31

http://www.thebeatsurrender.co.uk/interviews/human-being/

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http://realserver.law.duke.edu/ramgen/musicandtheft2002/musicpanel1.r

m

DownHill Battle, Music Activism: Three Notes and Runnin

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Accessed February 26 January 2005)

32

http://www.icomm.ca/macos/

http://www.mcps.co.uk/

http://www.downhillbattle.org/3notes/



http://www.cdbaby.net/fom/000013.html


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g.co.uk/index.cfm?articleid=39 (Accessed 14 December 2004)

33



http://wired.com/wired/archive/12.11/sample


http://www.ukhh.com/features/articles/twizt/5.html

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