The case in which the court wrote: "Get a license or do not sample. We do not see this as stifling creativity in any significant way." A bit of a setback for mashup/music collage artists. We studied this one in class, but it's certainly relevant and important to this topic. The George Clinton estate sued because a short sample of a Clinton song was employed in a different song. The court came down very harshly against the samplers, ruling that all samples must be licensed or else the sampler has stolen from the original author.
This case is extremely relevant to my paper because it is my contention that the court was wrong in dismissing unlicensed sampling as theft. Although I am very willing to admit that sampling of copyrightable material can infringe on the original copyright, it is my contention that if sampling artists are careful to make sure that all of their uses are transformative, it is possible to sample in a constructive and legal manner without a license.
The article begins with a brief legal history of sampling in the US. It then goes on to argue against three common conceptions ("myths" according to the author) about sampling.
1) Sampling is Analogous to Borrowing, Quoting or Imitating Prior Works: The author argues that since one is taking a piece of the actual recording, the sampler is not borrowing. They are stealing. She likens the offense to breaking into another lawyer's office and lifting passages from the lawyer's arguments into ones own and then claiming that you were merely paying homage to the lawyer's great work.
2) Because Sampling is a Legitimate Art Form, Samplers Should be Entitled to Freely Use Other Musicians' Original Copyrighted Material: In this section, the author essentially argues against the idea that sampling is a legitimate artform, arguing that the sampler is merely pushing a button and letting technology do all the work. Therefore, there is not artistic value added by the sampler and the sample should not be considered fair use.
3) In Order to Achieve the Proper Balance of Copyright Protection, We Must Err on the Side of Giving More Protection to Samplers Than Sampled Musicians: The author argues that to allow sampling would discourage the creation of original works of the type that samplers sample. Again, the author uses examples like the lawyer in myth 1 - what if a new filmmaker used the battle scenes from Gone With The Wind in their movie because they couldn't afford to film new scenes? It wouldn't be tolerated, even though it would encourage the new artist to make more material.
While it is certainly interesting to hear the arguments of the anti-samplers, it is my opinion that the author has a poor understanding of the process of sampling. Her examples are especially revealing - as a lawyer, her tendency is to think of sampling in the same way that one might think about copying a part of an argument. The instances are not analagous, however. An expository work like a lawyer's argument cannot be transformed by use in another expository work. When a sampler takes a portion of another artist's music and use it in a mix (or at least when they do it well) they transform the work into something new. Thinking as a lawyer will never apply because a lawyer will not be able to capture the artistic latitude that an artist has in creating a new work.
Fred Fisher, Inc., v. Dillingham et al., 298 F. 145 (S.D.N.Y. 1924)
Darrell v. Joe Morris Music Co., 113 F.2d 80 (2d Cir. 1940)
Arnstein v. Porter, 154 F.2d 464 (2d Cir. 1946)
ABKCO Music, Inc. v. Harrisongs Music, Ltd., 722 F.2d 988 (2d Cir. 1983)
Three Boys Music Corp. v. Bolton, 212 F.3d 477 (9th Cir. 2000)
Selle v. Gibb, 741 F.2d 896 (7th Cir. 1984)
*IMPORTANT* Grand Upright Music Ltd. v. Warner Brothers Records, Inc., 780 F. Supp. 182 (S.D.N.Y. 1991)