The Fine Line Between Sampling and Stealing

This article has been written by Anet Nderi, a student at Berklee College of Music-Valencia, for the course “Business and Intellectual Property” in the Master in Global Entertainment and Music Business http://berkleevalencia.org/academic-programs/master-degrees/master-of-arts- in-global-entertainment-music-business

The Fine Line between Sampling and Stealing Anet Nderi

Contents page

Page No. Introduction 3

Sampling and Hip-hop 4

Fair Use and Parodies 5

Acuff-Rose Music, Inc. v. Campbell 6

Grand Upright Music Ltd. v. Warner Bros. Records, Inc. 7

Personal Opinion and Conclusion 8 – 10

References 11

2 Introduction

Music producer Timbaland has this to say regarding sampling “have I sampled? Hell yeah. I didn’t go to them and say, ‘Hey, I’m gonna steal your beat.’”

Everything that has been created has been influenced by something and to a certain extent; originality involves putting one’s personal stamp on an already existing concept. As a fan of hip-hop music I am well aware of the use of sampling, however I was not aware about all the legal issues surrounding this grey area of copyright law.

The two cases that impacted sampling in hip-hop will be discussed in this paper in an attempt to come to a conclusion to the age old question of whether “sampling is stealing.”

3 Sampling and Hip-hop

In the same way artists make art collages; hip-hop artists and producers use samples to make a musical collage. Sampling is when a portion of a previous recording is incorporated into a new recording. Using a prior recording without permission is copyright infringement and there are severe penalties if found guilty. The owner of copyright does not have to grant permission and if the sample is used without permission, the sampled records may be destroyed and damages paid to the copyright owner.

To use a sample, an artist must get permission from:  The copyright owner of the sound recording (i.e. record label) and/ or,  The copyright owner of underlying musical work (i.e. music publisher)

The license fees to use a sample vary depending on the following factors:  How much of the music is sampled  Popularity of music one intends to sample  Intended use of sample – i.e. will it form the hook of the new song

Sampling is the foundation of hip-hop music. However, with all the difficulties in clearing samples, high costs and lawsuits many artists were put off sampling in the 90s. A revival in the remix culture in the 2000s saw a resurgence in sample use. In spite of this, hip-hop has steadily become more commercialised, as many artists are not able to afford clearing samples.

The debate over sampling being stealing comes a conflict between creativity/

4 originality versus laziness/ theft. Should an artist use pieces of someone’s song in his/her own version and need to pay royalties to the original owner? IP rights need to be respected, however if someone uses a sample in a new way that does not harm the commercial viability of the original, should the person who sampled be forced to share credits or royalties with the owner? Most of the time the original owner benefits from the use of their work in a new work as fresh attention is drawn to them and their work.

Fair Use and Parodies

Parodies are protected under the Fair Use Doctrine. Essentially, Fair Use pokes fun at, criticises and imitates cultural and political icons. To determine Fair Use the court considers the following factors:

1. Purpose and character of the work – did the artist of the new work do it for profit or just to offer their opinion

2. Nature of the work – parody, satire, criticism and if this is obvious in the new work

3. Amount and substantiality of the portion used in new work – how much of the original is included in the new version

4. Effect of the use upon the potential market for the copyrighted work – whether it will affect future or present sales of the old work

Parodies are considered as free expression and free speech, hence they are more likely to be deemed as Fair Use, therefore consent from the copyright holder is not needed. Although, Fair Use is helpful, it becomes extremely controversial in sampling.

Additional criteria to be considered include:

 Importance of sampled material  Frequency  Popularity of original  Degree of alteration to original

5  Attempts to negotiate licensing  Acknowledgement of original artist by sampling artist

It is easy to see where confusion can arise when it comes to Fair Use and sampling, which leads us to a landmark decision regarding parody, sampling and Fair Use.

A cuff-Rose Music, Inc. v. Campbell

This is probably the leading case on Fair Use as it relates to musical parody. Campbell (2 Live Crew) was sued by Roy Orbison’s record label over a rude remake of Orbison’s classic "Oh, Pretty Woman." Campbell had asked for permission to remake the song from Orbison’s label, however they refused to grant him permission. Despite this, 2 Live Crew went on to make the song and released it.

When the matter was taken to court, the court decided that 2 Live Crew’s version “commented on” the earlier song and seemed to criticise it. They reached a unanimous decision that 2 Live Crew’s version was a parody hence was protected under Fair Use despite their version being released for commercial gain. Since 2 Live Crew changed the lyrics and re-recorded the bass riff, it was considered to be transformative enough. As stated, Fair Use protects parody under the first factor (purpose and character of the work). In addition, with parody a significant portion of the original has to be used in order for it to be effective.

This controversial decision highlighted deficiencies in copyright law. The decision on 2 Live Crew expanded the legal concept of Fair Use because their version was limited in artistic value, contained mild criticism of the original and had "lyrical content bordering on juvenile."

6 Grand Upright Music Ltd. v. Warner Bros. Records, Inc.

The Biz Markie case changed the operating method of hip-hop music and signalled a turning point in sampling. Although it did not decide an actual law, it showed that people cannot simple sample without obtaining permission from the original copyright owner.

Gilbert O’Sullivan accused biz Markie of copyright infringement for using a sample of O’Sullivan’s “Alone Again” in Markie’s “I Need a Haircut.” Markie tried to obtain clearance but was denied and he still went ahead to use the sample in his version that was then released. O’Sullivan was out of the mainstream music market at this time and the use of his song as a sample made him relevant again. The presiding Judge Kevin Thomas Duffy ruled that samples needed to be cleared before use and infamously stated, “thou shalt not steal.” Warner Bros. (Biz Markie’s label) was forced to pay a large sum of cash and remove the song from the album.

This case had a snowball effect on sampling and hip-hop, such as:

 More similar cases on sampling started coming up  Pressured record labels to clear samples before releasing  Discouraged sampling artists from requesting use of sample since it suggested infringement

7 The major problem with sampling is that it is not embraced or prohibited by the Constitution, Copyright Act and court decisions; hence cases are dealt with on a case-by-case basis.

Personal Opinion

Sampling is the staple of hip-hop music however; due to the rising costs and rampant litigation it has put a lot of people off this technique. The constant threat of lawsuits looms heavy over artists and labels. In my view, it is not stealing or a lack of creativity. There are various examples of how sampling can help in an artist’s career. For example, Jason Derulo used a sample from Imogen Heap’s “Hide and Seek” in his hit debut single “Whatcha Say” thus paving the way for his following hits.

Furthermore, sometimes the sample used is so small and goes through so much digital manipulation that the original owner does not “own” the sample in new song as it has been completely transformed to the point that it is no longer recognisable. In such a case, that original sample serves the purpose of being a starting point from which an entirely new piece of work is created. Having said that, I do believe that credit should still be given however, royalties is another matter.

RZA, producer of the Wu-Tang Clan states that "the art form of hip-hop – the sound that attracted us to it -- is diminishing," and "It's becoming just another form of pop music." This is a direct consequence of the high prices involved in clearing a sample which has in turn lead to an increase in using interpolation which is when musicians re-record the sample, hence the master clearance

8 (song on the recording) is not need however the publishing clearance (written music) is required, therefore only one copyright is paid which significantly reduces costs. Dr Dre has made this technique popular.

The music industry is constantly seeking new ways to create a fresh take on nearly any song. Sampling and remixes provide this and are an important part of the music industry. They enable recordings and songs to reach different markets and different audiences from the ones they were initially designed for and encourage a culture of sharing creative ideas.

I also believe that affordability of clearing samples limits most hip-hop artists. Sampling has almost become exclusive and reserved for big artists like Jay Z and Kanye West who can afford to pay large amounts of money to clear samples. For example, Kanye West’s “Gold digger” which uses Ray Charles’s “I got a woman” and more recently the collaborative project by Jay Z and Kanye West “Otis” which featured an Otis Redding sample, these are clear examples of both rappers wealth as they can afford to clear the use of expensive samples. This is an issue with hip-hop, samples used to be the core of the genre but now they are treated like trophies that are reserved for the elite, which is limiting creativity. The high cost discourages producers, which impacts all parties’ ability to make money.

Although it could be argued that this restriction has forced hip-hop artists to be more creative and innovative, they can no longer freely pick and choose what sample they want to combine on their track but instead ask themselves whether that particular sample is really needed. In my opinion, sampling not only generates money for the original song and new version but it adds a new dimension to the original song by placing it in a different context. Sometimes a sample is more obvious than at other times where it seamlessly integrates itself into the new work.

Perhaps one of the reasons some view this way of creating music, as stealing is because of the way it is done. You simply need to press a button rather than moving your hands up and down an instrument. I think that a sampler

9 can be seen as an instrument in which a rapper takes sounds off it and arranges them in their own way, to me that is creativity.

Since no laws exist regarding sampling but rather precedents set by courts outlining what you can and cannot do, it leaves the area of sampling very murky. In my opinion, most of the time sampling is done in good conscience, wholly knowing that you are using someone else’s work but with the intention to use it in a different context and put your own spin on it. However, doubts arise when one considers how much sampling is too much? How can this guideline be enforced? This is difficult to determine since every creation is different, hence courts make their decisions on a case-by-case basis.

To some sampling is very simple. If you want to use someone else’s work in your work, pay them royalties. This is true to a certain extent but there are always exceptions. Until some concrete rules are set many hip-hop artists will continue to look for alternatives to sampling.

The US Copyright Act was written in 1976 before sampling technology, therefore the law has not moved forward with technology which has caused numerous issues and cases being settled out of court since the rules regarding sampling are unclear.

Conclusion

In conclusion, as humans we justify when we copy others, however when others copy us we vilify it. Although sampling may have negative connotations associated with it, when it is done correctly and legally, a sampled piece of music can be a stylish and fresh take on a classic or lesser-known song. In

10 my view, sampling is a form of art and not a lack of creativity hence not stealing. After all, “copying is the best form of flattery.”

References

Ben Rogerson “BLOG: Why Sampling isn’t stealing” Music Radar, http://www.musicradar.com/news/tech/blog-why-sampling-isnt-stealing- 157446

Brabec, Jeffrey and Brabec, Todd. Music, Money and Success. 7th edn. New York: Music Sales Corporation, 2011.

Don Snowden “Sampling: A Creative Tool or License to Steal?: The Controversy” Los Angeles Times, http://articles.latimes.com/1989-08-06/entertainment/ca-454_1_pop-music

Legal Information Institute “Campbell v. Acuff-Rose Music (92-1292), 510 U.S. 569 (1994)” Cornell University Law School, http://www.law.cornell.edu/supct/html/92-1292.ZS.html

Lindenbaum, John. “Music Sampling and Copyright Law” Center for Arts and Culture Policy Studies Princeton University

Matthew Newton “Is Sampling Dying?” Spin Music Group, http://www.spin.com/articles/sampling-dying

11 Tomasz Rychlicki and Adam Zieliński “Is Sampling Always Copyright Infringement?” WIPO Magazine, http://www.wipo.int/wipo_magazine/en/2009/06/article_0007.html

Trevor Paxton “Sampling in music a practice that’s here to stay” The State Press, http://www.statepress.com/2011/10/11/sampling-in-music-a-practice-that’s- here-to-stay/