http://berkleevalencia.org/academic-programs/master-degrees/master-of-arts-in-global-entertainment-music-business
Sampling, Copyright Infringement, and the
World of Hip Hop
Taylor S. Balian
IP Business Law
Professor Enric Enrich
December 18, 2012
Berklee College of Music
Masters in Global Entertainment
and Music Business
1. Introduction
As a genre of music that was established in the 1980s, hip-hop is a worldwide phenomenon that is a blend of old and new music and has profited immensely since its creation. Sampling is a huge part of the music that exists today. It was and is a fundamental element of the creation of hip-hop. However, in more recent years, a number of lawsuits have been settled in the court of law regarding the stealing and use of original works. The amounts of money that sampling artists are getting sued for as they have infringed on copyrighted works worries current and future sampling artists that have not only created a new genre, but a way of life within the past 20 years. There is worry that these lawsuits will divide sampling artists into two groups: outlaws and those that can afford to lawfully obtain copyright clearances at the costly price they are currently set at. Even more of a concern is the possibility of hip-hop declining due to the stringent laws of sampling that have been established and the lack of income that most sampling artists have that cannot afford them to continue their art. A middle ground must be found so that the owners of copyrighted material and sampling artists can both be satisfied and the world of hip-hop can continue to exist in the future.
2. The History of Sampling
Sampling, by definition, is taking a portion of a sound recording and reusing it and including it in a different song.
The technique of sampling is widely agreed to have put together the genre of hip hop as many artists in the late 70s and early 80s started to make their music by using samples of older music to create a new work. However, hip-hop artists did not invent sampling. In fact, the practice of sampling has been happening since the 1800s. Composers Rachmaninoff, Brahams, and Liszt ‘borrowed’ material from Niccolo Paganini’s works in order to create their own compositions.[1] In a positive light, sampling helps to create valuable and new contributions to modern music, as hip-hop has been witness to.
Unfortunately, unauthorized sampling is also considered vandalism and stealing because more times than not, sampling artists chop up and rip off songs of another artist without giving any credit or monetary gain to that original artist. Without the permission or payment to the original artist, sampling artists can pass off what is truly joint work as the work of him or herself as a single artist, which is a definite violation and infringement of copyright. Due to much controversy, the Lanham Act was established, punishing deceptive trade practices that mislead consumers about what they are buying and who made the product.[2]
Copyright owners have the exclusive right to authorize the making of copies and derivative works based on the original work, whether it is a musical composition or recording.[3] In most cases, the music publisher owns these right contained in recordings or ‘masters’.
Fair Use Defense permits unauthorized copying from a copyrighted work, as long as the copying does not substantially impact present or potential value of the original work.[4] The new work must also advance the public benefit. This defense is more rational when only a small portion of copyrighted work is used. However, it has never been made clear how much ‘small’ is.
Musicians, engineers, and producers that sample music usually try to reduce their chances of successfully infringing on copyright by electronically processing and camouflaging their sampled portions of music so that they become not easily recognizable. Filtering, synthesizing, and distorting recorded sounds helps to conceal sampled material, but still retains the essence of the original works instrumentation or vocal phrases.[5]
The financial demands in court by a plaintiff to the defendant vary depending on how much is owed from the defendant’s sampling of the plaintiff’s music. However, the average costs of lawyers and court fees can be easily calculated and unfortunately for defendants, especially those who are not the wealthiest of sampling artists, the numbers can be astonishingly high. On average, entertainment lawyers charge anywhere from $100-400 US Dollars per hour. More experienced copyright litigation lawyers tend to charge even more. All in all, average costs for court battles of this nature can cost around $350,000 US Dollars for just one side’s court costs and attorney.[6]
Considering the costs and time that one may have to sacrifice for the infringement of copyright, it is best to properly and legally obtain the permission to sample a work through copyright clearances, despite the fact that this, too, could be expensive. There are four main ways to deal with properly using copyrighted material: royalties, buyouts, sampling software, and a written request for permission. When it comes to royalties, most record companies tend to negotiate mechanical license fees of 50-75 per cent of the statutory rate.[7] From that fee, sampling artists pay the owners of any sampled materials and when one or more track is sampled, the clearance costs tend to double or triple. Buyout negotiations consist of a one-time flat fee for the use of sampled material. This can cost as low as $250 US Dollars but can also be as high as $10,000 US dollars.[8] A more tailored approach for aspiring recording artists, commercially available sampling software contains various ‘pre-cleared’ and public domain instrumental sounds and effects for unrestricted use, without the additional payments of royalties or fees. However, this technique greatly limits the creativity of sampling artists, especially those who find their inspiration from previously recorded material. Last, but not least, a written request may be sent to the publisher or who ever holds the rights to the recorded music asking permission to sample the work with details on how the sample will be used, the length of the sample, etc. Interestingly, a publisher, record company, or whomever, may be more willing to grant a low cost license to sampling artists that aren’t currently enjoying significant sales
3. Four Cases Regarding Sampling
In order to better understand copyright infringement with regards to sampling, I have chosen to look at four court case examples and examine their outcomes and reasonings.
a. O’Sullivan vs. Biz Markie
Hip Hop artist, Biz Markie, sampled three words and a small portion of music from Gilbert O’Sullivan’s “Alone Again (Naturally)” tune in his own entitled “Alone Again” in December of 1971. Feeling that his copyrighted work had been infringed upon, O’Sullivan sued Biz Markie and Warner Brothers and sought strict enforcement against the use of his drumbeats in Markie’s “Alone Again”.[9] Interestingly, the judge held that the defendants knowingly and intentionally committed copyright infringement because they had previously tried to secure a license from the plaintiff prior to sampling O’Sullivan’s song.
b. Jarvis vs. A&M records[10][11]
In November of 1982, Boyd Jarvis and his group, Visual, wrote and recorded the song “The Music’s Got Me In”, which was released by Prelude Records. Prelude owns and retains the copyright to the sound recording of Visual’s song. Seven years later, in 1989, Robert Clivilles and David Cole wrote and recorded the song “Get Dumb! (Free Your Body)” and released it on A&M Records as well as on Vandetta Records, A&M’s subsidiary label. Clivilles and Cole’s song slightly samples Jarvis’ and in 1990, Jarvis sued the defendants for copyright infringement. Jarvis and his team claimed that the damage that had been done by Clivilles, Cole, A&M and Vandetta not only added up to $15 million US Dollars, but also ruined future gains planned for “The Music’s Got Me In”. Jarvis claimed that he was attempting to remix the song when the infringement occurred, therefore causing him to lose the opportunity for advancement. In this case, the courts sided with Jarvis and claimed that song copyrights had definitely been infringed. Additionally, the courts stated that a sample should be judged by how qualitatively and quantitatively it reflects the original work. In this case, the parts of “The Music’s Got Me In” used in “Get Dumb! (Free Your Body)” were too similar to be looked over.
c. George Clinton vs. I Got the Hook Up[12]
In 1998, No Limit Films released the movie, I Got the Hookup, which featured a song by the group NWA called, “100 Miles and Runnin’”. The song from the film contains a 3-note guitar riff, measured two seconds in length, from George Clinton’s “Get off Your Ass and Jam”. Bridgeport Music, the publisher of Clinton’s tune, and Westbound Records owned the sound recording of “Get off Your Ass and Jam” and decided to sue No Limit Films for copyright infringement. What is interesting about this case is that NWA actually had acknowledged that they sampled Clinton’s work. No Limit was able to successfully argue that even though the work was sampled, the new usage of the song rendered the identity of the original unrecognizable. The new version by NWA had the guitar pitched down, and therefore it was not an infringement on Clinton’s work. Surprisingly, the court ruled in No Limit’s favor. The question that still lingered, though, was about NWA’s acknowledgement of sampling Clinton’s work, which was copyrighted. Had they not acknowledged Clinton, they could have gotten off free.
d. BEP vs. George Clinton[13]
On May 8, 2012, George Clinton and the group, Black Eyed Peas, came to an agreement about a lawsuit that has filed in December of 2010. Clinton sued the four-member group for using parts of his song, “Not Just Knee Deep” in remixes of their song “Shut Up” which was released in 2003 and again in 2009 on the deluxe edition of their “The E.N.D.” album. As decided by the courts, Clinton was limited in how much he could claim from the suit due to the lack of evidence stating how much he lost in the sampling or how much BEP profited in using Clinton’s music. Confusingly, Universal Music and Black Eyed Peas claimed they had licensed the music, but Clinton says he never granted permission. He claimed producers tried to license the song, but he refused to do so. Additionally, he claims his signature was forged on a release form that later was provided to his attorneys and that he has never been paid royalties on the remixes. Although the exact details of the settlement are unknown, both parties came to an agreement regarding the infringement. The exact payments and negotiations are unknown by the public.
4. Compare and Contrast Cases
Most of the cases that I have chosen to examine, observe, and compare deal with the genre of hip-hop and the difficulties it has had to endure regarding copyright infringement accusations. In the case of George Clinton vs. “I Got the Hook Up”, the courts favored the defendant, claiming that the new works that the sampling was either insignificant or unidentifiable to prosecute, even though the plaintiffs believed they had a strong enough case and believed their work had definitely been stolen and used against their permission and without receiving any monetary benefits. However, in the O’Sullivan vs. Biz Markie and Jarvis. vs. A&M Records cases, the courts believed that the parts of Jarvis’ song that were used by A&M Records were too similar to be overlooked and that Biz Markie and his record label knowingly infringed on copyright even though O’Sullivan had denied the use of his song in Markie’s new work. Lastly, the interesting court case between the Black Eyed Peas and George Clinton (who clearly has a strong dislike of his music being sampled, due to the many law suits he has been involved in regarding sampling) is complicated in that George Clinton was limited on how much he could claim in financial repercussions due the lack of evidence that he could provide.
What is clear after examining these court cases and the troubles within sampling is that there is really no definite explanation within the court of law of what is and is not acceptable when it comes to how much of an original piece is able to be sampled without facing copyright infringement. The exact causes of what how the courts agree or disagree on what is a truly sampled product and what should be considered infringement and unlawful is indistinguishable and imprecise. As sampling becomes more popular and more cases are being taken to court on behalf of protecting the works of artists and copyright holders, there clearly is a need for more solidly set standards to be put in place to handle sampling cases and a more reasonable set of rules and regulations on how sampling artists are to go about lawfully using original works and recognizing the artists and copyright holders who own that work.
5. Conclusion
First of all, I think it is important to recognize the opinions on sampling coming from professionals in the industry and deal with sampling first hand. According to producers, DJs, and artists who were interviewed in the documentary “Copyright Criminals”, not only is sampling good for business in that it has created a whole new and highly profitable genre of music for the world, but it also has revitalized careers. For example, artist George Clinton, who is no stranger to this paper, was re-introduced to the world thanks to the sampling of his music through hip-hop [14]. Sampling nowadays is about creating a new culture by taking other works and creating something new with respect to the old. World famous drummer, Clyde Stubblefield, is best known for his work with James Brown and establishing some of the standard-bearers for funk drumming. In fact, his rhythms on James Brown’s “Funky Drummer” are believed to be the world’s most sampled record.[15] The rhythms and many variations of them can be heard in almost every famous hip hop and pop song that has been made since the inception of “Funky Drummer”. Mr. Stubblefield has not received much, if any, monetary gain from the use of his beats over all these years. However, in the documentary, he does not express much emotion for not having received much in the way of finances from the sampling of his beats. He believes that his beats and work have contributed much to the world of modern music and for that he is happy[16]. Although some compensation would be nice, Mr. Stubblefield would be content simply receiving recognition for this revolutionary beat being used time and time again over decades of successful music[17].