For the 1967 volume of her Complete Poems, Marianne Moore preceded the section devoted to endnotes with a statement about quotation and intellectual property. "A Note on the Notes" reads as follows: "A willingness to satisfy contradictory objections to one's manner of writing might turn one's work into a donkey that finally finds itself being carried by its masters, since some readers suggest that quotation-marks are disruptive of pleasant progress; others, that notes to what should be complete are a pedantry or evidence of an insufficiently realized task. But since in anything I have written there have been lines in which the chief interest is borrowed, and I have not yet been able to outgrow this hybrid method of composition, acknowledgements seem only honest. Perhaps those who are annoyed by provisos, detainments, and postscripts could be persuaded to take probity on faith and disregard the notes." In this project I hope to parse this statement, look at the history of "Poetry" and "The Octopus" to see how quotations operate and change across versions, and ask whether and why modern American poets like Moore who quote borrow or steal.

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:

"...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"?

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.

Good points:

*"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.

Thesis: Samples, remixes, and mash-ups have all been affected by the interpretation and application of copyright law....... I am doing a creative project where I will produce four songs--a mash-up, a remix, and two beats that contain samples. I am choosing to do two samples because they are of different natures. One beat has samples of substantial similarity, whereas the second has a sample that has modified enough to make the original work unrecognizable. I will then discuss the relationship and implication that copyright law holds with samples, remixes, and mash-ups while using the songs I created as bases for comparison and analysis. The legal copyright implications will be addressed and critiqued.

     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

Jeffrey Brabec

Schirmer Books; 2nd edition (October 15, 2000)

ISBN-13: 978-0825672668

        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.

    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.

 

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.

 

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.

 

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. 

 

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.

Opinions Included:

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)

 

This annotated bibliography serves to support that: "Most rap music as an art form intrinsically relies on music sampling to exist. Current copyright law as it relates to fair use of music sampling severely limits hip hop artists and composers, almost to the point of killing the genre. Specifically, the case of Bridgeport v. Dimension Films outlaws the use of any sampling without proper payment to the copyright owner. This decision has made it impossible for the non-wealthy to enter the public hip hop market and limits the creativity of those already in."

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.

belongs to Copyright and Culture: Sampling and the demise of hip hop project
tagged Bridgeport NWA copyright hip_hop license music sampling by grahama ...on 28-NOV-06