Music Sampling and Copyright Law
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CACPS UNDERGRADUATE THESIS #1, SPRING 1999 MUSIC SAMPLING AND COPYRIGHT LAW by John Lindenbaum April 8, 1999 A Senior Thesis presented to the Faculty of the Woodrow Wilson School of Public and International Affairs in partial fulfillment of the requirements for the degree of Bachelor of Arts. ACKNOWLEDGMENTS My parents and grandparents for their support. My advisor Stan Katz for all the help. My research team: Tyler Doggett, Andy Goldman, Tom Pilla, Arthur Purvis, Abe Crystal, Max Abrams, Saran Chari, Will Jeffrion, Mike Wendschuh, Will DeVries, Mike Akins, Carole Lee, Chuck Monroe, Tommy Carr. Clockwork Orange and my carrelmates for not missing me too much. Don Joyce and Bob Boster for their suggestions. The Woodrow Wilson School Undergraduate Office for everything. All the people I’ve made music with: Yamato Spear, Kesu, CNU, Scott, Russian Smack, Marcus, the Setbacks, Scavacados, Web, Duchamp’s Fountain, and of course, Muffcake. David Lefkowitz and Figurehead Management in San Francisco. Edmund White, Tom Keenan, Bill Little, and Glenn Gass for getting me started. My friends, for being my friends. TABLE OF CONTENTS Introduction.....................................................................................……………………...1 History of Musical Appropriation........................................................…………………6 History of Music Copyright in the United States..................................………………17 Case Studies....................................................................................……………………..32 New Media......................................................................................……………………..50 Proposals........................................................................................……………………...63 My Proposal: A Compulsory License System for Samples.....................…………….94 Conclusion......................................................................................………………..…..106 Appendix A: Lyrics for “In the Pines”................................................……………....110 Appendix B: Lyrics for “Sam Stone” and “Cop Shoot Cop”..................………..…111 Appendix C: Lyrics for Roy Orbison’s “Oh, Pretty Woman”.................………….112 Appendix D: Lyrics for 2 Live Crew’s “Pretty Woman”........................…………...113 Appendix E: Fair Use Findings Using Don Joyce’s Criteria..................……..…….114 Appendix F: Compulsory Sample Royalty Computations.....................……………117 Appendix G: Contents of Audio Disc................................................………………...120 Bibliography and Discography.........................................................…………………121 Introduction 1 INTRODUCTION Remember when the music came from wooden boxes strung with silver wire? -Harry Chapin1 Copyright law was established in the Constitution to “promote science and the useful arts.” In the age of digital formats for music, copyright law makes it illegal for “bootleggers” to commit audio piracy by copying works of music without paying the artist. However, the advent of digital sampling, which allows a musical artist to appropriate sound from a previously recorded work and incorporate it into a new work, has challenged the existing framework of copyright law. The search for balance between the need to protect artists from audio piracy and the goal of fostering the ability of new artists to draw on previous media has provoked a good deal of legal controversy within the music business. Laws and court decisions have not established what balance between the protection of an original artist and the protection of new appropriative artists would best foster overall musical creativity in the United States. Digital sampling technology allows an artist to copy a portion of a recorded sound or series of sounds and incorporate the fragment into a new work.2 While only 8 of the top 100 albums contained sampling 10 years ago, almost a third of the current Billboard 1 Harry Chapin, “Remember When the Music (Reprise),” The Gold Medal Collection (Electra/Asylum, 1988). 2 “The process of digital recording changes sound waves into digital information. Sound travels through air in waves. Therefore, a sound must be sent to a transducer, such as a microphone, which converts the sound wave into voltage variations. After the sound waves are converted into voltage variations, the signal is sent to an analog-to-digital converter. The converter changes the analog signal into digital information by first measuring the analog voltage at regular intervals. These regular intervals, known as bits, are then assigned a binary number representing the intensity of the signal at that time. This is the process known as sampling. A computer then stores or processes the sample information. At this point, the sample can be altered by changing or rearranging binary values. When it is time to hear the sample, the process is reversed. A digital-to-analog converter changes the digital information into a voltage signal. This signal passes through a transducer such as an amplifier that coverts the voltage variations into sound waves that the ear can hear.” from Paul White Creative Recording Effects and Processors (1989) and Craig Anderton, “Digital Audio Basics” in Synthesizers and Computers (Milwaukee, WI: H. Leonard Publishing Company, 1985) and Jim Aikin, “Digital Synthesis: Introducing the Technology of Tomorrow,” in Synthesizers and Computers. Introduction 2 100 albums use sampling as an artistic tool. 3 Whereas many rock and pop artists have used the technology to save the time and cost needed to hire a live band, hip-hop, dance and experimental artists have chosen the sampler as their primary instrument. For example, Tone Loc’s rap hit “Wild Thing” is based on the guitar riff from Van Halen’s “Jamie’s Crying,” and the Beastie Boys’ 1989 Paul’s Boutique is a rap album with beats composed of hundreds of samples including an Isley Brothers guitar solo, the reggae standard “Stop That Train,” The Beatles’ guitar solo from “The End”, Johnny Cash’s “Folsom Prison Blues,” and radio advertisements.4 As rap producer Daddy-O says, sampling “is something you put together out of bits and pieces other people have done. Once you have the complete product, you have a completely different picture.”5 However, because a sample infringes on the underlying composition and sound recording copyrights of the original song, the use of sampling in music involves either licensing the sample from the copyright holders or risking legal action. Interpolation, the process of including part of a song without sampling it, has often resulted in the copyright holder for the original co-owning the new song. 6 White Town’s hit “Your Woman” included an interpolation of a 1930s song by Al Bowly, and the three co-writers of the original now receive 50% of the publishing income from the new song. 7 In order to prevent claims from the sampled artists, new artists can use sample CDs with pre-cleared samples on them, make their own samples, or use a song whose copyright has expired, as 3 This is due to the increased popularity of rap music, which uses sampling heavily. The charts can be seen at http://www.billboard.com. 4 Wayne Robins, “‘Boutique’ and the Beasties: Audio Delight,” Newsday, August 20, 1989. 5 David Zimmerman, “Rap’s crazy quilt of ‘sampled’ hits,” USA Today, July 31, 1989. 6 “The Pirates of Pop,” http://www.futurenet.com/samplenet/tutorials/Pirates/Pirates.html 7 “The Pirates of Pop,” http://www.futurenet.com/samplenet/tutorials/Pirates/Pirates.html. Introduction 3 when Coolio incorporated Pachelbel’s Canon into a rap song. For the most part, though, sampling requires paying the copyright holders to re-use the original song. Unfortunately, the license system that has developed reflects the economic power of the music industry rather than goals of the Constitution or the desires of artists. Only songs that are successful, like the Verve’s “Bitter Sweet Symphony,” are responded to by lawsuits, prompting the phrase “where there’s a hit there’s a writ.8 In some cases, suits develop when a song that was aimed at a limited market suddenly becomes very popular, as when DNA was forced to accept just £4,000 as payment for a remix of Suzanne Vega’s “Tom’s Diner” that went to the top of the charts in 11 countries. For the most part, sampling artists are at the mercy of large record labels and music publishers when requesting licenses for samples. As drum ‘n bass artist Mocean reports, “I tried for nine months to clear the Mahalia Jackson sample. When I finally got a call back, they’re like, ‘We want six cents a record and $10,000 in advance.’ I said, ‘You know, I’m going to sell, like, 2,500 records. You’re crazy! My album budget was $40!.’”9 Because the current system has developed in response to economic pressure from large companies, and because sampling will become an increasingly important aspect of new music, the sample licensing system could benefit from evaluation and possibly change from the judiciary and legislature. Although the composition and performance of any song is by definition creative, fostering the arts in the United States involves allowing artists to break new ground stylistically, thereby promoting progressive musical evolution. A musical piece not does need to rely on new technology or bizarre styles to be considered creative, but the 8 “The Pirates of Pop,” http://www.futurenet.com/samplenet/tutorials/Pirates/Pirates.html. 9 Andrew Beaujon, “It’s not the beat, it’s the Mocean,” CMJ New Music Monthly, April 1999, p. 25. Introduction 4 American