Vaidhayanathan, Said. "Hep Cats and Copy Cats: American Music Challenges the Copyright Tradition." Copyrights and Copywrongs:
The Rise of Intellectual Property and How It Threatens Creativity. New York: New York UP, 2003. 117-48.
Vaidhayanathan begins his chapter on the ethos of sampling in American music by claiming that "music, more than any other vehicle of culture, collapses the gap that separates idea from expression." Walter Pater ventured the same observation in the late nineteenth century, speculating that all arts aspire to the condition of music. This introduces great difficulty into the realm of copyright, which identifies protectable expression by consistently separating out idea from expression. Taking the case of "second takers," samplers building on the creativity of particular artist or, in the case of the blues, a common musical catalog, Vaidhayanathan argues that these important engines of culture need more protection than the idea/expression distinction can provide. In the case of American music, he goes so far as to claim that repetition and revision are "central tropes." The Blues tradition, more specifically, views the elaboration or improvisation of traditional compositions as the norm, as against the Constitution's model of progress or Romantic models of genius. If this is true, copyright law overprotects large swathes of American music.
The distinction Vaidhayanathan draws in this article between legal issues and aesthetic and ethical issues begs of the question of whether blues compositions ought to be eligible for protection. Then again, he also seems to support the "total concept and feel" test for substantial similarity. This would locate the aesthetic and ethical issues he cares about within the purview of the law as currently formulated, except that the test applies to the performance of a song, rather than to its composition, as is currently the case. Performance, he argues, constitutes a substantial portion of the "value-added" aspect of a musical work. The overarching question, as I see it, involves the degree to which discrete areas of culture like the blues tradition can push back against legal protections designed to apply to all areas of culture. Established works reap the benefit of asymmetrical power, in the form of a large and powerful music industry lobby. The power balance in and of itself doesn't decide the question. Moreover, a tension between recourse to national tradition - the idea of "American music" - and recourse to ethnocentric explanation - in the histories of the blues and rap - might have been more clearly handled.
Vaidhayanathan delineates five reasons for sampling - to draw on the authority of a cultural touchstone, to produce a new version, to make a political statement, to express appreciation or acknowledge influence, and to create an ambient effect. Works that sample arguably deserve a hearing on each of these grounds, as five possibilities for the nature of a fair use claim. Sampling more often than not adds value to a work of art and thus transforms the sample. Moore's poetry might profitably be considered in light of these five species of sampling, to see whether they would be adequate in pursuit of a fair use claim.
Gregory, Janice. Quotation and Modern American Poetry: "Imaginary Gardens with Real Toads." Houston, TX: Rice UP, 1996.
Gregory's study compares the poetics of quotation in T.S. Eliot, William Carlos Williams, and Marianne Moore. Quotation, she argues, either draws on the authority of what a writer quotes or parodies that same authority. She identifies four pre-Modernist conceptions of the function of quotation, each allied with a different epoch: Christian antiquity and the medieval, Renaissance, and Romantic periods. Apostolic and Pauline texts quote Jesus and the Old Testament to invoke the awe of revelation, the binding force of law, and to establish their own authority. Medieval writers invoke the same authority from non-Christian authors, especially Aristotle. The Renaissance, through figures like Erasmus and Cervantes, instigates the double character of quotation, useful for authorization and parody. The Romantic period witnesses the rise of a discourse of originality that created immense anxiety in poets like Coleridge and Wordsworth over their belatedness in relation to great poets like Milton. Their rare instances of quotation are in the service of transferring authority to modern, secular forces. Setting this anxiety in an American context, Emerson insists in the 1830s that originality and quotation are not mutually exclusive, thus setting the stage for poetry that acknowledges a great debt to tradition but nevertheless seeks to establish an original relation to the universe.
Gregory argues that Eliot, Williams, and Moore all employ quotation to explore the way authority is gendered, particularly with reference to America's belatedness in secular history. Borrowing on the work of Marie Borroff, Gregory demonstrates how Moore's inclusion of "promotional prose" and the text from park monuments, intimate conversations, volumes of natural history, and other non-canonical language alongside quotations from Yeats and allusions to Browning throws into question the hierarchies on which the authority of quotation rests. These "unauthoritative" texts enter the realm of literature for multiple purposes, among them revaluation, modest depersonalization, and the establishment maternal authority. Gregory also suggests that Moore's practice of quotation influenced T.S. Eliot, not the other way around, by convincing him that he could fashion poetry "out of a refusal to digest the fragments of the texts that inspired it." Gregory allows me to argue that Moore's practice of quotation serves several of the analogous functions that sampling serves in music, and subsequently that there might be a causal relationship between Moore's nationality and the views she held on quotation.
This article focuses on the rhetorical strategies employed by The Roots and ?uestlove in relation to hip hop authenticity. Specifically, Marshall finds that "sampling," connected as it is to the roots of hip hop, has come to stand in for "authenticity" in hip hop. ?uestlove and The Roots, privileging live, recorded instrumentation yet seeking legitimacy as hip hop, deliberately quotes, invokes and yet criticizes sampling in his music. The Roots' more recent has included more electronic tones, presumably to recall sampling and position their music more firmly in the hip-hop tradition. Yet the business of sampling -- the licenses fees only major artists like Jay-Z and Kanye West can afford -- makes ?uestlove question its presumed authenticity in hip-hop: "B
This article focuses on the rhetorical strategies employed by The Roots and ?uestlove in relation to hip hop authenticity. Specifically, Marshall finds that "sampling," connected as it is to the roots of hip hop, has come to stand in for "authenticity" in hip hop. ?uestlove and The Roots, privileging live, recorded instrumentation yet seeking legitimacy as hip hop, deliberately quotes, invokes and yet criticizes sampling in his music. The Roots' more recent has included more electronic tones, presumably to recall sampling and position their music more firmly in the hip-hop tradition. Yet the business of sampling -- the licenses fees only major artists like Jay-Z and Kanye West can afford -- makes ?uestlove question its presumed authenticity in hip-hop: "B
etween paying the record labels, who typically own the mechanical rights to sound recordings, and the writers and/or companies who own the publishing rights—none of which, of course, necessarily goes to the samplee—most hip-hop artists with limited (if not nonexistent) budgets could never hope to afford such a pricey but prized production technique." ?uestlove for that reasons often mocks copyright law and practice in his music, an "underground," subversive move that further confirms his authenticity among his fans, who privilege The Roots' idiosyncratic status in hip-hop. Thus by playing to both sides, The Roots complicate notions of what is real and authentic, trying to make room in hip-hop for a variety of expressions.
This article seeks to deconstruct underlying myths and assumptions about what mash-ups mean. It begins by saying, after The Grey Album scandal/triumph, histories of mash-ups "take on a kind of 'paradise lost' feel, and critics lament that the revolution has lost its initial bite, the innovation has become somewhat trite, and the practice risks becoming just another short-lived, pop-culture trend." Yet, Gunkel says arguments that industry co-optation has killed the mash-up are predicated on the same notions of originality and authenticity the mash-up deconstructs. Mash-ups deconstruct authorship and originality not only because they mix two or more disparate artists to make something new but also because they are created on machine-bsed production, like one of its antecedents, Jamaican dub. Moreover, mash-ups are "copies of copies" thereby dismantling the connection between writing/sound/original event. Gunkel emphasizes the mechanical nature of mash-up production: on The Grey Album, he states:
This article seeks to deconstruct underlying myths and assumptions about what mash-ups mean. It begins by saying, after The Grey Album scandal/triumph, histories of mash-ups "take on a kind of 'paradise lost' feel, and critics lament that the revolution has lost its initial bite, the innovation has become somewhat trite, and the practice risks becoming just another short-lived, pop-culture trend." Yet, Gunkel says arguments that industry co-optation has killed the mash-up are predicated on the same notions of originality and authenticity the mash-up deconstructs. Mash-ups deconstruct authorship and originality not only because they mix two or more disparate artists to make something new but also because they are created on machine-bsed production, like one of its antecedents, Jamaican dub. Moreover, mash-ups are "copies of copies" thereby dismantling the connection between writing/sound/original event.
Gunkel emphasizes the mechanical nature of mash-up production: on The Grey Album, he states:
"...there is nothing original in the technique, elements, or results of any particular mash-up; it is derivative to the core." Furthermore, "...it does not contest repeatability and interchangeability with arguments that still, in one way or another, validate and value originality as such." Mash-ups are unapologetically derivative, and therefore theoretically prove the theories of Adorno, Benjamin, Zizek, Baudrillard and Derrida that question the notion of the author, of original writing and music, and the "real" itself.
Shiga in this article seeks to describe how mash-ups became "listenable:" both how a culture of listening is grown and maintained and how the culture deems certain tracks listenable.
Mash-up culture is based on three premises/trens: (1) the shifting "locus of musical expertise, creativity, and skill to listeners of pop music;" "the changing character and institutional status of remixing in the dance music and hip-hop industries;" (3) "the use of illegality as a way of distinguishing and valorizing artifacts, styles, and remixers within the broader field of popular music culture."
To prove point (1), he talks about how remixers debate the quality of sound (wav vs. mp3, for instance), and how those qualifications are not absolute: "…mash-up remixers disregard the authority of sound-engineers in determining the quality of a sound recording." Furthermore, participation in the community is key to gaining legitimacy, Shiga argues, as an important status marker in one’s ability to hear connections between different songs. This act of listening is not removed, however, and is intertwined both video (accompanying remixes) and branding (creating an image behind the music).
In response to point (2) he states that mash-up culture is a response the mainstreaming of DJs and remixes by the entertainment industry: "
The emergence of mash-up culture is in this sense a backlash against the cultural authority of professional DJs, who assume what Adorno (1991) called an administrative view, ‘‘the task of which, looking down from on high, is to assemble, distribute, evaluate and organise’’ (p. 93).
To prove point (3), he discusses the rise and prominence of Danger Mouse’s Grey Album, within the mash-up community. Though this aura of criminality might be, in some ways, fabricated, as the record industry at times collaborates with the underground mash-up community, as when Jay-Z released a vocal-only version of the Black Album: "
Jay-Z’s sound engineer, Young Guru, admits that the release of vocal-only versions of the Black Album was intended to allow DJs to ‘‘remix the hell out of it.’"
This article is an excellent survey of the history, theory (Adorno, Benjamin) and literature of music mashups. *It discussed notable cases of mashups: Danger Mouse’s The Grey Album; Evolution Control Committee’s ‘‘Rebel Without a Pause,’’ Freelance Hellraiser’s ‘‘A Stroke of Genius,’’ 2 Many DJs’ ‘‘Smells Like Teen Booty,’’ Negativland’s ‘‘I Still Haven’t Found What I’m Looking For,’’ and Party Ben’s ‘‘Boulevard of Broken Songs.’’ *It explicates the antecedent of current-day mash-ups and shows how artists are conflicted about the "democratization of music:" Some like David Bowie and DJ Moby welcome it, while others dislike it's ability "to deconstruct (and mock) the arbitrarily divided and cherished pop canon." *Is relatively agnostic on whether digital technology "empowers" users; merely states that technology has changed audiences' relationship to music and made explicit the meanings behind the music: ‘‘Copyright is about control: the right to control the way your work is used.’’ The industry is fighting a battle over image in an era when mashers target sources precisely because of their image: what Nirvana signifies; what Destiny’s Child signifies; and how apparently hilarious it is to bundle them together." *Locates mash-up culture as a symptom of youth growing up surrounded by media, but maintains skepticism that there is any political power in their deconstruction of the media: does it "really produce anything more than superficial, ironic combat"?
This article is an excellent survey of the history, theory (Adorno, Benjamin) and literature of music mashups.
*It discussed notable cases of mashups: Danger Mouse’s The Grey Album; Evolution Control Committee’s ‘‘Rebel Without a Pause,’’ Freelance Hellraiser’s ‘‘A Stroke of Genius,’’ 2 Many DJs’ ‘‘Smells Like Teen Booty,’’ Negativland’s ‘‘I Still Haven’t Found What I’m Looking For,’’ and Party Ben’s ‘‘Boulevard of Broken Songs.’’
*It explicates the antecedent of current-day mash-ups and shows how artists are conflicted about the "democratization of music:" Some like David Bowie and DJ Moby welcome it, while others dislike it's ability "to deconstruct (and mock) the arbitrarily divided and cherished pop canon."
*Is relatively agnostic on whether digital technology "empowers" users; merely states that technology has changed audiences' relationship to music and made explicit the meanings behind the music: ‘‘Copyright is about control: the right to control the way your work is used.’’ The industry is fighting a battle over image in an era when mashers target sources precisely because of their image: what Nirvana signifies; what Destiny’s Child signifies; and how apparently hilarious it is to bundle them together."
*Locates mash-up culture as a symptom of youth growing up surrounded by media, but maintains skepticism that there is any political power in their deconstruction of the media: does it "really produce anything more than superficial, ironic combat"?
In this talk, Lessig purports to prove that, because remixing is a part of culture and they way live, not all cultural products need to be copyrighted in the way corporations need copyrights. Looser, more open and lawyers licenses allow for more cultural production.
*"This issue is not free music." File-sharing is wrong and illegal, but also disruptive to the potential of this technology, because it inspires insanity on the part of the industry. He is against extremes in the debate: those that would make kids into terrorists and those that would break the law.
* Demonstrates how a song – "My Life" – under creative commons license was remixed by at least seven people without ever meeting and, most importantly, without lawyers.
*Cites Danger Mouse’s Grey Album and Jonathan Caouette‘s Tarnation as examples of the fruits of remixing.
*States that most acts of remixing we do without thinking about it – criticizing or praising a film we just saw, for instance – and it is done for free and allowed without government intrusion.
Newton v. Diamond is a court case that, similar to Bridgeport Music v. Dimension Films, revolves around de minimis sampling. The case involves the rap group, the Beastie Boys, and accomplished jazz flutist, James Newton. The Beastie Boys, in their song “Pass the Mic,” sampled a very small segment of Newton’s recording, “Choir.” The sample was a six-second, three-note snippet of Newton playing the flute. The Beastie Boys acquired a license for the actual sound recording from a record company, but they didn’t obtain one for the underlying musical composition from Newton. The court held that the three-note segment of the composition of “Choir” could not be copyrighted because it lacked requisite originality; further, it stated that if the segment had been copyrightable, the Beastie Boy’s use was de minimis.
The analysis on de minimis, unlike in the Bridgeport case, was on the musical composition, not the sound recording. First, the three-note sequence wasn’t the heart of the work and was insubstantial as it appeared once within the four and one-half minute song. Even more important, though, is that the note sequence in question—C – D flat – C, over a held C note—doesn’t contain sufficient originality to be awarded copyright protection. There are only so many notes, chords, and chord progressions available to musicians. Therefore, some of these basic notes and progressions can’t be “owned” by anyone.
With this type of court decision and interpretation of copyright and de minimis laws, the need for certain sample clearances becomes void. Along with the outcome of the Bridgeport case, if I sampled a one-note snippet of a song, I would still need licensing from whoever owns the master recordings. With the Newton v. Diamond case, however, I would now only need licensing from the record company, for instance, and wouldn’t need to seek approval from a composer or music publishing company. The composer doesn’t own the rights to certain notes, and therefore I can sample certain compositions.
This is an important differentiation for me, or anyone who samples for that matter. It is definitely something to take into consideration for my songs that sample and any future song that I produce. It would allow me to sample small segments and only have to clear them with record companies, saving me time and money. This is an interesting wrinkle in copyright law that is certainly relevant and applicable.
The “Music, Money, and Sampling” chapter (6) of the book Music, Money, and Success (by Jeffrey Brabec) offers a thorough overview of how sampling works within the music business. It provides an all-encompassing layout of how deals usually go down between copyright holders of a song—artists, record labels, or music publishing companies—and someone who wants to take a portion of that existing song and integrate it into a newly recorded performance—songwriter, recording artist, or record producer. It serves as a tutorial for someone interested in the standard operating procedures of procuring clearances. It can also serve as a source of knowledge to someone curious about how music companies and artists are compensated for allowing samples from their catalog. It ranges from what happens when sampled songs are released without permission to the in-depth negotiating options that exist between the sampling party and the sampled party when clearance is approved.
The options mentioned are one-time “buy-out” fees, the payment of a percentage of income received from the new song, and the transfer of a portion of the copyright of the new composition with the income that this would generate. Also mentioned are the criteria that copyright holders use in analyzing the new song to help determine types of deals. This type of analysis takes into account: duration of sample, nature of the sample, sales of the new song if it has been released, and whether the sample was a key element or recognizable piece of the original composition. Although there is nothing exact, as it comes down to negotiating, the specific percentages that copyright holders usually bargain are covered.
The information in this chapter is relevant to my creative project because all of it would be applicable if I were to try and clear the songs I produced by integrating copyrighted work. Here I can see how companies would analyze my music and the type of deal I could expect. It really covers just what people have to go through to clear their samples and how much money they forgive in doing so—paying for the sample and then losing out on publishing percentages. On top of all of this, the chapter helped give me a greater perspective on why so many artists were outraged over court decisions regarding sampling…it cost them a lot of money, and some probably couldn’t afford to keep sampling at all!
Music, Money, and Success
Schirmer Books; 2nd edition (October 15, 2000)
Grand Upright Music v. Warner Bros. Records was the court case that started it all when it comes to sampling, copyright infringement, and the necessity of acquiring clearance to sample a copyrighted work. The case was brought against one of Warner Bros. Records’ artists, a rapper named Biz Markie, by Grand Upright Music, which owns the copyrights to singer and songwriter Gilbert O’Sullivan. Grand Upright claimed that Biz Markie infringed upon O’Sullivan’s song, “Alone Again (Naturally),” by incorporating a partial piece of the copyrighted song into a rap recording. The court found this to be evident.
Markie’s main argument was that he should be excused from liability for infringing copyright because others in the rap world are also engaging in the illegal activity. The judge was quick to point out that this mere statement could do nothing more than lead to that argument’s own refutation. The judge then pointed to the US copyright laws, as well as even the Seventh Commandment, “Though shalt not steal,” as his basis for siding with Grand Upright. Just because stealing might be rampant in the rap music business, there is no way to view this as excusable or justifiable. The court viewed that appropriating copyrighted work into a new one for the sole aim of economic achievement is a blatant disregard for the law and the rights of others.
With this decision, the face and sound of rap music was forever changed. Until that point, sampling had been widespread in the hip-hop world; some artists had even been using ten to twenty samples a song. Now, all of these samples would have to be cleared—and at a cost. Many artists couldn’t afford to sample after this. At the same time, copyright holders could begin refusing to license their songs for one reason or another.
In my project I have two songs with samples. Had I produced them in 1985, for instance, I wouldn’t have to clear the samples, and I would be able to reap every monetary benefit to their success. After this Grand Upright case, however, things are different. To try and release either of my songs, I would have to go through a costly clearance negotiation with record and publishing companies; and for all I know, even if I offered to pay, they might still not clear my samples.
“From Mozart to Hip-Hop” discusses the impact of the Bridgeport v. Dimension Films case on the future of digital sampling. The stance in this piece is particularly negative. The author believes that the outcome of this case threatens musical progress and creativity. She compares current sampling in hip-hop to the musical borrowing practices of Bach, Mozart, and Beethoven. It’s difficult to view sampling as negative when viewed this way if, as stated, it would’ve made some of music’s most famous works impossible. “Mozart to Hip-Hop” argues that the Bridgeport case contradicts the purpose of copyright law, overlooks creative value in sampling, will inhibit the development of new works, and doesn’t take into account the importance of sampling in hip-hop aesthetic. It further stands that the best way to evaluate sampling cases is through de minimis and substantial similarity.
While all of this adds value to my project, I was particularly drawn to the argument that substantial similarity analysis should be the requirement for copyright infringement. What should be important is whether an ordinary listener, without being directly told what to look for, could clearly recognize the appropriation. The “bright-line test” should be irrelevant if the heart or signature sound of the original work isn’t sampled. This substantial similarity law could be the best paradigm in evaluating sampling—it balances copyright protection by promoting artistic development while still fostering the creation of new works since de minimis sampling holds such a negligible potential harm to original artists.
This perspective on de minimis and the Bridgeport case is of great relevance to my creative project. In one of my songs I have samples that I believe aren’t of substantial nature. I am usually pro-copyright and pro-music industry, and while this hasn’t drastically changed, the author’s points and arguments definitely have some legitimate ideas. I can definitely employ this point of view on de minimis when assessing the copyright implications of my music.
tagged bridgeport de_minimis sampling by mbandier ...on 01-DEC-08
This journal article opens with a hypothetical: The main gist is that you are a successful businessman who one day comes to the office to find a first-year employee sitting at your computer. He is lifting exact portions of your work to incorporate into his own. He argues that because he is new, he should be entitled to borrow and quote your work, even if his final work seems to have your “signature style.”
You would never tolerate this, correct? It would be considered breaking and entering and intellectual property infringement. So why, then, should the music industry tolerate this rampant behavior that occurs through digital sampling?
The author points to the Bridgeport Music court case as what finally stood up for the talents and creative ideas of artists who work to attain their right “signature sound”—the sound that makes them top-selling acts. This piece is written in full support of the Bridgeport decision, with the perspective that the unethical and unlawful use of prior work amounts to copyright infringement. It covers the history of sampling technology, the response of the courts and the music industry to sampling, an analysis on the debate of whether sampling is “art” or “theft,” and lastly, a proposed solution to foster creativity while protecting against unauthorized sampling.
While all of these categories have relevance to my project, I was primarily drawn to the section on sampling as “art” vs. “theft.” In this, three myths are addressed and debunked: one, that sampling is analogous to “borrowing” work owned by others; two, that sampling is an art form and, therefore, samplers should be entitled to freely use copyrighted material; and three, that for a proper balance in copyright law, more protection should be granted to samplers. Every “myth” offers a variety of arguments presented by “free digital sampling” advocates. Each, however, is followed by a critical, thought provoking, and analytical assessment that fully shoots down any point in support of free sampling.
Most sources that focus on sampling and its relation to copyright law seem to draw criticism on the Bridgeport decision and subsequent infringement cases. It was really helpful to have an article that fully supported Bridgeport and the notion that all digital sampling, regardless of length or clarity, needs copyright clearance. Any form of reasoning I could come up with to defend the songs I created was covered—and each was fully and thoughtfully undermined. This adds a particularly interesting aspect and perspective to my project, my songs, and their copyright implication.
Bridgeport Music v. Dimension Films is a court case that has had a major impact on the music industry, specifically with regards to the future of digital sampling. The case revolves around the use of a sample from the song “Get Off Your Ass and Jam” by George Clinton and the Funkadelics, whose copyright is held by Bridgeport. The sample in question comes from a three-note, four-second guitar riff in “Get Off.” N.W.A.’s song, “100 Miles and Runnin’,” takes two seconds from this snippet, lowers the pitch, and loops it to extend 16 beats. This song was then included on the soundtrack for a Dimension Film’s movie, I Got the Hook Up, which Bridgeport Music then claimed to infringe on its copyright. In a district court, Dimenion Films won on grounds that the alleged infringement was de minimis, and hence not actionable. When brought before a federal court, however, the decision was reversed.
The court used the points on derivative work from Sections 106 and 114 of the US Copyright Law as reference for their decision. Because a sound copyright holder has the right to authorize the rearrangement, remix, and alteration of its recording, the copyright owner also then has the exclusive right to “sample” its recording. From this it was made clear: the judge announced, “Get a license or do not sample.” Grand Upright Music v. Warner Bros case sided with copyright holders to an extent; but, after this interpretation, even the de minimis defense became null. The decision supports that the usage of any section of copyrighted work, regardless of length or clarity, needs clearance. The court analyzed that even when something small is taken from a sound recording, what was taken is still something of value. Further, the copyright holder of a sound recording doesn’t just own the “song,” but rather owns all of the fixed sounds in that recording.
The case had a monumental impact on music, copyright, and sampling. There now exists a “bright-line test,” where any sampling is infringement. This affects any producer or artist who wants to sample music in a song from here on out. Lengthy and costly negotiation and litigation will be necessary to sample, even just to take a two-second snippet. In my project I have two songs with samples. In one I rearrange a hefty portion of the original recording, which would have qualified as infringement after the Grand Upright v. Warner Brothers case. But in the second one, I sample a song while altering it so much that the source is unrecognizable. With the Bridgeport decision, though, there now stands a heavy consequence on my song and the type of sampling that I employed.
“Digital Sampling and the Legal Implications” focuses on digital sampling, its impact on music, the effects that will occur for artists and the music business if the Bridgeport case isn’t reexamined, and finally, possible solutions and alternatives for dealing with the sampling dilemma. The paper has a strict perspective that sampling holds a positive impact on music, and that the Bridgeport decision has the capability to extremely hinder creative output. What I was particularly drawn to were the suggested solutions to seemingly never-ending debates over sampling and its copyright implications.
The three main options mentioned and explored are the creation of a subgenre in fair use to cover digital sampling, a compulsory licensing system, and lastly, a combination of the two. For the subgenre in fair use, the key component would be to determine the purpose, character, and use of the sample, and its effect on the original work’s market. If the underlying work was altered enough or so minimal that it was unrecognizable, the sampled artist or copyright holder shouldn’t and wouldn’t be injured. A compulsory licensing system would make copyright owners compelled to allow samples of their songs. In return, they would receive payment from all of the uses of the new work at a predetermined rate.
A combination of the two would look something like this: A fee would be paid to obtain “temporary” rights to use the sample. The new work would then be analyzed under the proposed new sampling subgenre of fair use. This would determine whether the sample was substantial enough to be recognized or have an effect on the original copyrighted recording. If it didn’t fall under fair use, then a new fee would be assessed in terms of length, prominence, and importance of the sample. An official authority would be put in position to help mediate this last negotiating step.
This is a really creative and intelligent way of looking at possible solutions to the legal issues regarding sampling, infringement, and payment. I think the combination of compulsory license and fair use could have a dramatically positive effect on artistic creativity and output, as well as on the chronic litigation that plagues music companies. This is relevant to my project because if this type of system were instated, it would drastically change the copyright implications of my songs and how they were greeted and treated. I could potentially release these songs at a much lower time and financial cost; but more important, I would be releasing them legally.
This academic journal is published by Cambridge University Press and is a commentary on the first source listed above. Laing highlights the most important points of Frith’s work, offering his professional opinion in a disagreement, agreement, or clarification in the very least. A notable quality of this journal is the fact that is it printed in Great Britain; therefore it offers the insight of a foreigner analyzing American copyright law in contrast to that of the United Kingdom. This perspective draws attention to aspects of the law that may not been previously considered.
The essay is short and concise, wasting no words in a full examination of Frith’s work. He calls into question Frith’s assertion that the copyright system is an “aspect of the competition between different music producers…and…different music users,” and claims that there is much more to it than that. He acknowledges the complexities in the system in that they do not clearly favor or target neither the creator, nor the performer, nor the consumer. Slightly outdated, this essay was written before any sampling lawsuits were completed in the courts (at least in Great Britain) however, this serves as a strength instead of a weakness, however, seeing as his calculated predictions can be measured against the results to gauge how scholars viewed the subject.
This journal is not only an intellectual work in itself, but it is also an intelligent deciphering of some of Frith’s most significant assertions. This serves the reader well as some of his reading can be confusing and seem contradictory at parts. In reading Frith’s work, I will be sure to keep Laing’s journal on hand for color and clarification in order to most accurately comprehend the discussion and facts presented.
This book is an objective look at the various implications of digital sampling and copyright infringement in the music industry. It offers numerous examples of instances in the production of music that range from simply “causing a stir” to reaching a major court decision – and it provides the results of each. It has been written and edited by a collection of scholars, specializing in a number of fields and commenting from a variety of backgrounds and points of view.
The book does not necessarily pose an argument as much as it clarifies the dispute between the recording industry and the digital sampling community. It pits the copyright laws against the “creativity” of new musicians. The book takes neither stance but rather gives adequate attention to both. On one hand, it states that copyright is often blamed for curtailing creativity in music, in that it prevents the production of completely new songs simply because of their use of a small sample of a previous work. Conversely, the authors acknowledge that copyright is also seen as a catalyst for creativity, offering incentive to create fully original work instead of somehow deriving it from a pre-existing source.
This dichotomy is essential to my argument seeing as it offers equal views and examples on the subject of digital sampling. The cases identified in the text are sound evidence of the evolution of the copyright law as a result of the development of the digital sampling technologies and practices. As a result of these case studies, the book also calls to mind a number of musical examples that can not only be analyzed further, but can also be used to find other examples or to gain further insight into the specific case in question. All of these items are discussed in a case-by-case basis with commentary following and this formal structure provides an easy reference into any single instance of copyright infringement that results from the practice of digital sampling. This source will prove invaluable in the completion of the final paper, seeing as it outlines all of the surrounding facts and intricacies of copyright law as it pertains to music. In deciding whether or not a sampling is within the bound of copyright law, this book has been cited numerous times, and will be upon completion of the paper.
This book is a guide – as its title might suggest – to all things digital when it comes to music. It serves as not so much an analysis on copyright in the music industry as a whole, but rather as a set of legal and technical guidelines so that one may participate in the consumption and production of such music without infringing on copyrights. In other words, it describes for the reader all of the ins-and-outs of the digital music industry so that one may know where in the law his practices may reside.
Hill’s book has entire chapters devoted to the assessment of what is legal, what is not, and how to go about participating in said sanctioned musical practices. He identifies a list of acceptable file-sharing websites, and offers his own commentary on why others are forbidden, as well as why these are acceptable. The book begins with a basic introduction into the technologies and methods used in the digital realm and then goes deeper to list available services and to comment on the merits of various practices. His advice is clear and he condones no illegal activity, yet he makes clear why certain people might be motivated to circumvent copyright laws in terms of digital music. He further lists specific file types and programs that are used in these practices and he identifies useful software. He finishes the book with another broad chapter about the “Conscience of Digital Music” as a whole as well as his prediction of the future of the industry.
Hill’s technological knowledge is a key aspect of this book that has allowed me to delve deeply into the details of digital music production and sharing. He explains these issues in simple terms, while still conveying the complexity of their implications. In writing this final paper, the technological terms and details from this book will provide much-needed expertise in a field that I am not necessarily well-versed in. In my analysis of the acceptability of digital sampling, I must first know how the practice works and what techniques are involved; this book offers me this knowledge, which is key to reaching a conclusion in my final paper on what sampling is acceptable within copyright law.
tagged appropriation bootleg bootlegging burning copyright copyright_infringement digital_music digital_sampling downloading file-sharing grokster kazaa mix-cd mp3 music peer-to-peer piracy remixing ripping sampling sharing software song by minglet ...on 25-NOV-08
One look at the pages of this book and it is immediately known that it is unlike any other sources to be used for this essay. The pages are printed with a hole in the center and the outline of a CD on each one – clearly a modern work by a modern author. This is the argument for all of the merits of sampling and Dj-ing music for a crowd as told from the perspective of an established DJ, Paul Miller (DJ Spooky). Despite its casual tone and appearance, however, this book is filled with intellectual commentary on the state of music and the art of remixing today.
Quoting anyone from Woodrow Wilson to George Clinton, Miller offers a wide range of examples to support his stance on the art of Dj-ing. He believes that sampling music is a form of creation, putting a musical piece of work together in a different way in order to achieve what DJs refer to as “flow.” He asserts that sampling is both the result and catalyst for new music. “You can never play a record the same way for the same crowd,” he writes, calling the digital sample a “recycling” of sorts, a “repurposing” of an old melody or riff.
Miller’s unique stance as a DJ himself, combined with the casual tone of this narrative offer the reader a conversation with a man deeply involved in the digital music industry. As mentioned above, he does indeed advocate the benefits of the art, but he also recognizes the dangers of “taking sampling too far.” Seeing the digital music industry from his eyes in this way is a welcome insight into yet another point of view on this topic. This will only add to the complex standpoint that I will be able to take in writing this essay.
Seemingly a sequel to his previous work, Sound Unbound is compiled with the help of numerous contributors and reads much more like a scholarly account than its predecessor. It delves further into the intricate aspects of Dj-ing and remixing: sampling, appropriation, plagiarism, and various forms of musical technology from tape loops to video opera. The list of contributors ranges from science fiction writers to media activists, from rappers to composers, and this wide range of expertise offers an even better insight into the intricacies of the music industry in the digital age that the first book provides.
Most important to the focus of this paper, however, remains to be the testimony and work of Paul Miller. Once again, his experience as a professional DJ offers an exclusive look into the life of someone who makes a living off of sampling and remixing, however the supporting chapters from his colleagues offer a much stronger foundation for his more up-to-date commentary on the industry. In addition, the work of novelist Jonathan Lethem on appropriation and plagiarism is a good complement to Miller’s chapters on sampling and civilization.
Contrary to the last book by Miller, Sound Unbound explores more deeply the legal implications of “stealing” another’s song or work, and the distance that one must go in order to gain such negative attention from the authorities or at least the original creators. Furthermore, the book includes a mix-CD compiled by Miller himself, made up of a variety of artists commonly classified as “avant-garde,” which only serves to enhance the written works that he includes in the book. It gives the reader something real and interactive – a way to experience what all of the scholars are talking about first-hand. It is the well-roundedness of this complete work and the many facets of the modern music industry that it covers from the inside-out that is the reason this is so helpful in the construction of my final paper.
tagged appropriation author's_rights bootlegging copyright copyright_act digital_sampling dj-ing dj_spooky fatboy_slim international_copyright_law jonathan_lethem lyrics mix-cd morality music music_industry plagiarism public_enemy remixing sampling song by minglet ...on 25-NOV-08
Katz also examines the realm of digital sampling, but he does so with a keen detective’s eye, looking at the practice from the outside-in. He uses three case studies to show the main uses and techniques employed with digital sampling. First of which is a “song” created by Paul Lansky with recordings of human voices speaking random words entitled “Notjustmoreidlechatter.” The complicated issue of speech and music is addressed through this first instance of sampling and Katz identifies the specifications and implications of either one. Secondly, he compares two pop songs, Camille Yarbrough’s “Take Yo’ Praise” and Fatboy Slim’s “Praise You,” which uses bits of the former in its creation of the latter. Finally, he breaks down the numerous sampled bits in Public Enemy’s “Fight the Power.” Public Enemy’s strong political message coupled with the nature of his samplings creates one of the most powerful sample-ridden songs of contemporary music.
Katz only does so after first clarifying with the reader what exactly sampling is. This definition has been found in the majority of the sources, but none went on to detail the legal issues as well as Katz. He also goes on to explore the question of originality and immorality in terms of remixing and sampling. Nevertheless, his case studies have proven most useful in determining the full extensions of digital sampling in music and his insight into its effect on music today. He also lightly touches on the various effects parodies have upon the original work, if any, and acknowledges the complexities within the industry when it comes to approval for such works. This book could possibly be the best source found thus far, seeing as it is not overly specific in its subject matter, yet it explores enough topics in a reasonable level of detail to be reliable.
tagged camille_yarbrough copyright copyright_act creative_commons digital_sampling fatboy_slim international_copyright_law morality music music_industry notjustmoreidlechatter paul_linsky phonorecords piracy public_enemy remixing sampling speech by minglet ...on 25-NOV-08
Lee Marshall, co-editor of the very first source, "Music and Copyright – Second Edition," authors this work of similar form but on a slightly different subject. The strictness of copyright law in terms of music is once again revisited but is no longer commented on as either fostering or inhibiting creativity in the industry. Lee more explicitly lays out the fundamentals of copyright law, especially when it applies to bootlegging and piracy, and he broadens the discussion outside of the United States to international copyright law.
Prior to his outline of the bootlegging/piracy portion of the industry, Marshall itemizes the four main copyright issues in music. The first two he identifies as the copyright of the original work itself: song and lyrics. Beyond that, he clarifies the issue of copyright of the recording and who often owns the rights to a song produced in a studio. Lastly, he outlines the details of copyright it terms of the performance and the differing stipulations both in the United States and abroad. Marshall then asserts that the main concerns over performers’ rights stem from issues regarding bootlegging, and he goes on to explain the complicated laws concerning it.
Bootlegging and piracy are two of the main portions of copyright law that are most closely related to, if not directly cited in, cases involving digital sampling. By referencing Marshall’s comprehensive look at copyright law as it pertains to bootlegging, I can not only ascertain for myself whether or not a particular usage is acceptable or not, but I can also refer to the various case studies employed by Marshall if unsure. In writing this final essay, Marshall’s detailed work on bootlegging and piracy in terms of copyright law has certainly been a valuable source to cite.
An academic journal from Columbia University, this source is the first on the list to fully support the other side of the argument between song samplers and those being sampled. McGiverin begins the journal by arguing for the musician’s rights to be compensated for any and all portions of his work that are reproduced in another work. He then goes on to divide his work into three main portions: the first of which describes sampling and its implications in the music industry, the second applies the 1976 Copyright Act to sampling from phonorecords, and finally the third investigates state common law and rights of publicity in terms of musicians’ control over their original work.
A source of this nature is essential for any paper analyzing the issue of sampling in the music industry, seeing as it provides the exact counter-argument of a few of the sources found. McGiverin continues to refer to an artist’s sampled work as his or her “auditory identity,” giving great importance to the underlying bass lines and riffs that make up the background of a performance. In doing so, he asserts the value of these otherwise-overlooked aspects of a work. Seeing that they are often the portion involved in the sampling, they should be given greater significance and, as McGiverin believes, the original artist should be compensated for their use.
As mentioned above, this source is arguably the most important, simply because of the point of view that it represents. Although this paper has been unbiased in theory, the majority of the sources were all either neutral or in support of one side of the argument. By providing an intelligent and fresh insight into this half of the issue, this source is one of a few to complete the perspective in order to find a well-informed answer to the question concerning the limits and merits of digital sampling in the music industry.
This source happens to be a blog entry written by a visiting professor at Washington College of Law who is also on the board of Creative Commons at the college. The blog is a response to a Sixth Circuit court interpretation of the Copyright Act in the case of Bridgeport Music vs. Dimension Films which stated that artists must either have a license or abandon their sampling. Carroll then continues to explain a few stipulations in the Copyright Act and their involvement in this court decision, namely Section 114 and Section 106.
Carroll analyzes the courts assessment of de minimus in the Copyright Act and how it was originally interpreted in the local Bridgeport court. In the appellate court, however, Carroll finds fault with the way the court approached its decision, moving straight to Section 114 instead of focusing on Section 106. He disagrees with their reading of the Act and consequently, their decision to remove de minimus from the realm of sound recordings, stating that he does not believe there is a “statutory basis for the rule announced by the court in this case.”
Carroll’s stance in the Creative Commons forum at a prominent law school in the United States, as well as his origins in, and knowledge of, international copyright law once again present the material in a newly-cast light. The case he references is one of much importance to the focus of this final paper and his commentary on the subject is clear and well-formed. This source provides a very narrow view into one single court decision that acts as a useful spotlight among other more general sources.
This fairly short case played a large part in the demise of sampling as a legitimate artform. The case begins "Thou shalt not steal," which places sampling clearly in the category of theft. The case follows the incident in which Biz Markie sampled a portion of "Alone Again (Naturally)" by Gilbert O'Sullivan for his track, titled "Alone again." Biz Markie attempted to acquire the rights to use the samples and upon failing prodeeded to use the sample anyway. The court decided 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."
This case's relevance is fairly obvious - this case was one of those that helped to create the anti-sampling precedent which makes it so difficult for a sampling artist to legally go about creating material. Particularly shocking is the complete absense of any discussion or consideration of Fair Use. The judge in this case simply assesses whether or not Biz Markie acquired a license to sample O'Sullivan's track and whether Markie knew that he needed to get a license. There is no mention of whether or not the use is transformative or of the potential market impact of the new version on the original. I have never heard either song, so I cannot make the evaluation myself. Nevertheless, I find it shocking that the court wouldn't even consider the possibility that it could have been a fair use.
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)
Bridgeport Music, Inc. v. Dimension Films, No. 01-00412—Thomas A. Higgins, District Judge (2005).
This case involves N.W.A.'s song "100 Miles and Runnin" which has a two second sample from George Clinton Jr. and the Funkadelic's song "Get Off Your Ass and Jam". N.W.A. just took that 2 second clip, lowered the pitch and looped it on their song. Since this was done without getting consent from Bridgeport Music, Dimension Films was brought to court because N.W.A.'s song was featured on the soundtrack of one of their movies, I Got the Hook Up. Bridgeport, however, entered into two agreements with two of the owners of "100 Miles and Runnin", which granted them the license to sample so Bridgeport was originally ruled against by the U.S. district court. Bridgeport argued that "(1) that the sample was not protected by copyright law because it was not "original"; and (2) that the sample was legally insubstantial and therefore does not amount to actionable copying under copyright law." Then the case was taken to the Sixth Circuit. Here the court used the factors for exclusive rights in the Copyright Act of 1976 and ultimately ruled that Bridgeport's copyright rights had been violated.One of the most important issues here would be that of de minimis. It is defined as something that is so small and insubstantial that it can be overlooked, which three notes seemed to be initially. The Sixth Circuit ruled that this and substantial similarity should not be factored in when ruling on a sound recording. Since there was no debate about whether or not part of "Get Off Your Ass and Jam" and was copied, which it was, the court ruled in favor of Bridgeport Music. This ruling ties heavily into the rap industry as de minimis is often relied upon by producers. While Vanilla Ice shouldn't be able to get away with using virtually the same song as another group without permission, it was often acceptable to take a small piece of another work and build off that. This ruling causes the prevention of this in many cases. Producers would not be able to borrow anything due to de minimis becoming outlawed in a sense for sound recording cases, which is where hip hop music needs it. If the law were to continually make rulings that further narrow the range for sampling, those rappers/producers without much money would be scared off because they could not borrow even the tiniest bit from another song, stifling their creativity due to a ruling against one of the conventions of their genre of music.
Campbell v. Acuff-Rose Music (92-1292), 510 U.S. 569 (1994)
The rap group 2 Live Crew used a sample of Roy Orbison and William Dees' "Oh, Pretty Woman" for their track, "Pretty Woman", on their album As Clean As They Wanna Be without Orbison's permission. This led to a copyright infringement case being filed by Orbison and a ruling by the Supreme Court which has great implications for both rap and music as a whole. 2 Live Crew's defense was that their song was a parody, and as such should be seen as fair use since a parody must borrow heavily from the original artwork in order to spoof it.
The court went through the 4 factors that typically determine fair use as outlined by the Copyright Act of 1976. On the first factor (The purpose and character of the use) the court determined that since 2 Live Crew's version of the song was fairly transformative, this outweighed the commercialism that would rule against fair use. As for the second factor (the nature of the copyrighted work), the Supreme Court decided that because the song is a parody, it intrinsically borrows heavily from a public, copyrighted work, and thus does not put too much weight on this factor for determining fair use. The third factor, (the amount and substantiality of the portion of the original work used), the court decided that as a parody, it was necessary for 2 Live Crew to borrow the "heart" of the work, however they differentiated their song enough from Orbison's by changing the lyrics heavily. For the fourth factor, (the effect of the use upon the market (or potential market) for the original work), they determined that it is unlikely for this work to substitute the original, and thus would not harm Sony's market.
This case is very important to music because it was one of the earliest to set down guidelines as for sampling in music, though it was a parody. Also, at this point, these types of cases were rare for courts to see, so the legislation for ruling on them was ill-defined. It was determined that parodies can not be automatically determined by an aggregate set of laws and must be tried on a case to case basis. Since rap music often samples in ways like 2 Live Crew did, this ruling essentially let the reigns free for other artists to sample music by diminishing their fears of it not being fair use. However, this is a parody and majority of rap songs are not, meaning that they are given less leeway when it comes to fair use.
Go to this site: http://www.findlaw.com/casecode/courts/6th.html and search for Bridgeport. Click Bridgeport v.WB Music Corp.
Bridgeport Music, Inc. v. Warner Bros. Music Corp., 2004 FED App. 0233P (6th Cir.)
Bridgeport once again claims that due to sampling by Ice-T of the opening three notes of George Clinton's "Get Off Your Ass and Jam" in his song "99 Problems" on the Home Invasion album, their copyright rights had been infringed upon. A key factor that differentiates this case is that there is approval of the sampling, but Bridgeport believed it was entitled to more money than they initially received due to profit being made after the limitations period. UPIP, the label under which Ice-T recorded the song, had a mechanical license for the song and received royalties for it. This is not an issue because Bridgeport never asked for the license to be revoked, and thus could not be considered infringement. Bridgeport also targeted Ammo Dump Music and Carrumba Music, which it ultimately failed to win anything from.This case is different from the others in that it is one that is both positive for the rap industry and for the evolution of copyright case law. Essentially, this case helped to solidify the fact that once rights are obtained to do something, such as sample music and make money off that new music, then it is hard to be taken away. Bridgeport received money to let the rights for "Get Off Your Ass and Jam" go, yet they were not satisfied with just that and attempted to glean more money off of the success of the derivative work. This case prevented them from doing so by outlining how the distribution of money and rights are once sampling is allowed. The immediate label Ice-T was part of here had 66.7% of the rights to his song while UPIP managed to acquire the other 33.3%. Bridgeport wanted that 33.3%, but was denied. This helps to further the rap industry because with its large amount of sampling, there has to be a certain amount of security in order to protect the money received from the money acquired after the rights for the sample are acquired. A label should not be able to get extra money off of a product unless it was agreed upon initially.
Grand Upright Music v. Warner Bros. Records, 02-cv-01662-RPM 780 F. Supp. 182 (S.D.N.Y. 1991)
This case involves Biz Markie's sampling of Gilbert O'Sullivan's, "Alone Again (Naturally)" for a song on Markie's album I Need A Haircut. Markie, under Warner Bros. Records, claimed that his sampling of 3 words and a small portion of O'Sullivan's song was fair use because Grand Upright Music did not have a valid copyright of the song. This turned out to be false as it was learned that Sullivan had indeed transferred the rights of the song to Grand Upright Music.
This is an important case to look at because unlike 2 Live Crew, who were told that they could not use the original work and did it anyway, Markie claimed that he sampled a song that he legitimately believed the rights were up in the air for. Also, 2 Live Crew set a precedent for the rap industry to begin using samples, whether they were approved of or not. This became part of rap music itself, and this point was argued by Markie's camp. The court did not factor this into their decision, ruling for an injunction against Warner Bros. citing that there was evidence that they tried to obtain permission for the song and was not able to, and thus had infringed on Grand Upright Music's rights. Their ruling was also rooted in the fact that the album could become commercially successful using a song that willfully infringed upon the rights of another.
Rap music as stated above hinges on the fact that sampling is part of the industry. Markie's loss in court serves as an antithesis to what happened in the 2 Live Crew case. Here, a rapper is penalized for sampling a song, even with the attempt of trying to secure the rights. Instead of rappers and producers gaining more confidence in sampling music, this case most likely drove some away. At that point, it could even be seen as the catalyst to a fall in the genre. It also sent a message that the attempt to obtain rights was not heavily valued, just whether they were attained in the end or not.
Marshall, Wayne. "Giving Up Hip-hop's Firstborn: A Quest for the Real after the Death of Sampling" Callaloo Vol 29 (2006)
This journal article uses ?uestlove of the hip hop group, The Roots, to highlight how today's artists are dealing with copyright law. The Roots are notorious in the modern day industry because they sample very minimally due to the fact that they play their own instruments, and thus, create their own music with them. Because of this they are able to create hip hop without conforming to the traditional method of sampling in order to create beats. The traditional method is often seen by as consumers as a necessary element to create "authentic" hip hop music. While ?uestlove obviously believes real hip hop can be made other ways, he acknowledges that sampling is too common for the art to thrive under current copyright law. To show how difficult it is, he provides real examples of the costs of some samples, with the average being $8,000 each. Most hip hop artists that have not broken out yet would not be able to pay such ridiculous fees.The most important thing about this journal is the issue of authenticity. This helps to understand why it is essential for rap artists to have samples instead of just accepting it as a given. Not only does it create a connection to the origins of the musical style, especially when it comes to vinyl records, samples also challenge the idea of musical ownership. This is to say that, hip hop is based on a belief that music ultimately does not belong to anyone, it is for the community to enjoy, and as such should be used by anyone freely. This closely coincides with pushes for the public domain to be expanded. ?uestlove also incorporates anti-copyright messages into his music in order for fans to realize the bleakness of the situation. An example is given where a DJ begins to manipulate beats but is abruptly stopped stating that showing off his talent "would cost too much".
Kersting, Jeffrey F. "Singing a Different Tune: Was the Sixth Circuit Justified in Changing the Protection of Sound Recordings in Bridgeport Music, Inc. v. Dimension Films?" University Of Cincinnati Law Review Vol 74 (2005)
Though Bridgeport v. Dimension has been touched upon, this journal article helps to understand why sampling is outlawed and questions whether the ruling was fair. The author has a clear disapproving view of the Sixth Circuit circumventing law conventions that were already in place such as testing for substantial similarity and considering de minimis. Here, their methodology is key, and is broken up into seven parts.
The first is that the ruling only applies to sound recordings. The second is that it acknowledges that this is a completely brand new test as it found the district court's testing, using substantial similarity and de minimis, inappropriate for the case. Third, it was decreed that originality of the derivative did not matter as long as it could be proven that a copyright existed for a work that was sampled from. Fourth and fifth, all samples would be defined as digital samples and tried as such. Sixth, there is acknowledgement that the popularity of hip hop music and technological innovation has increased the amount of sampling taking place. Seventh, the court believed that this new test would be beneficial for both the courts themselves and for the music industry as a whole. The argument behind this is that they are allowing artists to duplicate sounds independently, but not in arranged way that has already been copyrighted. Their claim is that this still allows for creativity to flourish. Also, the fees for licenses will be kept in check. Last, they feel this is necessary because there is no accidental copyright infringement when it comes to samples.The author believes that this method is flawed because it does not differentiate between different types of copyrighted works and points out loop holes that would allow de minimis and substantial similarity to be used. This would greatly help the hip hop industry in that their specific type of music would no longer be pigeon-holed. This article illuminates the fact that special case law had been created to judge a specific type of music. Even the creators of the legislation mention it. If rap artists and producers were to be judged by the standard that most copyright infringement cases were, it would help them win more cases and would be fairer.
McGraw, Molly. "Sound Sampling Protection and Infringement in Today's Music Industry" Berkeley Technology Law Journal Vol 4 (1988)
This journal article is quite useful because it provides a lot of background for copyright as sampling applies to it. Also, the journal article is old, allowing to help see how copyright law has changed. One key point is that originality is not a prominent factor in determining copyright infringement, but there does have to be a certain amount of "personality". At the same time though, the smaller the effort put in, the greater this "personality" becomes weighted. It also goes on to state that a sample must be a literal copy of an original sound in order be considered copyright infringement. The article references the need for substantial similarity, which is typically an important part for determining infringement. However, in Bridgeport v. Dimension, this need for substantial similarity was bypassed essentially because with all of the technology available to alter samples, it may not be fair to judge them on similarity since they may sound different, but are still stolen.
It also states "Theoretically, the question turns on whether the similarity relates to a substantial portion of the plaintiff's work, not whether the material constitutes a substantial portion of defendant's work. In the typical case, the trier of fact is instructed not to inquire into the value of the allegedly appropriated portion standing alone, but rather into its importance to the effect of the complaining song." This helps to clarify that samples were not originally looked at as stand alone pieces of importance, rather that the original piece as a whole was the most important part. This ties into rap music because while a producer might have been able to get away with taking a sample that alone anyone would think is insignificant, when it is then applied to the original song, it automatically gains more importance and would hurt the producer's chance of using it.
Unamed Author "Grey Tuesday" Tech Law Advisor February 14, 2004 - March 5, 2004
This piece highlights the battle between DJ Danger Mouse and EMI Records for the creation of The Grey Album, a musical work that samples both Jay-Z's The Black Album and The Beatles' The White Album. Capital Records, owners of The Beatles' works issued a statement before the album was released warning DJ Danger Mouse of his copyright infringement of their songs. Even though he had not officially released it, the album had time to circulate. Danger Mouse did not receive the proper permission from Capital Records and agreed to stop distribution of the album, but it had already leaked to too many sources. This caused an infamous day as the hip hop community rebelled against copyright law itself on "Grey Tuesday", where many sites would allow the album to be downloaded and distributed in order to "force reforms to copyright law that can make sampling legal."
This is a notable event because on top of it being a public outcry against copyright law and favoring hip hop sampling, it also provides a scenario where the one that created the infringing product agrees to stop his actions, but the public continues, thus making him liable for their actions. Danger Mouse was asked to identify everyone it had distributed the album to and account for all of units distributed, which is virtually impossible to do. The hip hop community clearly realizes that copyright law regarding sampling of music is hurting the art. Attacking a DJ that created an album which was clearly doing to be an underground project was the last straw. While most of the sources I have used make comments about how certain cases affect the rap industry itself, it is important to consider the fans responses to legislation. If the uproar is consistent and loud enough, then maybe a change will be made to the law.
Young, Gary. "6th Circuit Clamps Down On Sampling" The National Law Journal September 30, 2004
This article references Bridgeport v. Dimension Films, but has some particular feelings about how this law works, particularly focusing on the death of hip hop. One of the representatives for DJ Jazzy Jeff, a popular rapper in the 80s that was usually alongside Will Smith, believes that this legislation alone is enough to kill the art of hip hop. Even a member of the Recording Industry Association of America, RIAA, which one would think would support most copyright legislation believes it is a bad idea that will do more harm than good. The article also brings up a good point in that there could be retroactive liability created for people that were previously judged under the former method. In addition, another valid point is given in that licensing of samples has become so common that the problem may be overstated. Though this may be true for the recording industry as a whole, when applied specifically to hip hop, this argument holds less weight due to the fact that there is a heavy amount of unlicensed samples present on a majority of mixtapes.This article is important to consider because it is one of the few that actually shows that there is not only a backlash from artists themselves but from prominent figures in the industry such as the RIAA. The RIAA has been notorious in the last decade for cracking down on file sharing in order to curb the loss of profits that arise when people download instead of purchase music. With the RIAA having such a firm stance on public, one could assume that they would also back one that limits artists from illegal activity, but they do not. It is also worthwhile to note that DJ Jazzy Jeff was the artist that was referenced in the article. Jazzy Jeff has been relatively dormant on the hip hop scene for quite some time. This could be because as a DJ, he is no longer allowed the amount of leeway and freedom that allowed him to create hit songs in the 80s. New legislation effectively hinders re-entry into the market for artists like DJ Jazzy Jeff.
Wu, Tim. "Jay-Z Versus the Sample Troll" Slate November 16, 2006
In order to show that sampling lawsuits in rap music still exist, this article condemns Bridgeport Music for suing Jay-Z over sampling some notes from a Madonna song. This article references many of the others I have because Bridgeport has become notorious for capitalizing on the fact that they go after anyone who samples from any of the songs they own no matter how minimal and insignificant the sampling is. In fact, "Bridgeport launched nearly 500 counts of copyright infringement against more than 800 artists and labels." Bridgeport is also going after dead artists like Notorious B.I.G. and was able to recently cash in on his album Ready to Die, which is over a decade old, due to the illegal sampling that was on it. This is a direct result of hip hop booming within the last decade, which is sad because they are able to capitalize off an industry norm. This article shows the depth to which Bridgeport Music has gone in order to obtain more money, and with this many cases, is instrumental in the possible demise of rap music.
This article also brings up an interesting point of view in that, up until now I have written about Bridgeport being a money-grubbing corporation, but it could also be construed that its doing older artists justice by giving them their due off from today's popular songs. Though they might get some recognition from the lawsuits, Bridgeport ultimately keeps all of the money, so older artists don't really receive what they should. It also brings up a good point in that, thanks to Bridgeport's case against Dimension, many popular albums of the past would not be able to be created today, such as Public Enemy's, It Takes a Nation of Millions to Hold Us Back. This supports the theory that as copyright law regarding sample continues, more and more restrictions are placed on rap artists.