DePaul Journal of Art, Technology & Intellectual Property Law Volume 3 Issue 1 Fall 1992 Article 1 Digital Sound Sampling: A Re-Evaluation after Grand Upright Music David M. Bagdade Follow this and additional works at: https://via.library.depaul.edu/jatip Recommended Citation David M. Bagdade, Digital Sound Sampling: A Re-Evaluation after Grand Upright Music, 3 DePaul J. Art, Tech. & Intell. Prop. L. 1 (1992) Available at: https://via.library.depaul.edu/jatip/vol3/iss1/1 This Lead Article is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Journal of Art, Technology & Intellectual Property Law by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. Bagdade: Digital Sound Sampling: A Re-Evaluation after Grand Upright Music DIGITAL SOUND SAMPLING: A RE-EVALUATION AFTER GRAND UPRIGHT MUSIC David M. Bagdade' INTRODUCTION in identical or altered form.5 This process is generally performed with the assistance of a sophisticated key- Digital sampling of recorded sounds is an issue board. generated considerable controversy through- that has Sampling is considered to have originated in the out the record industry over the last several years, early 1980s when disc jockeys and mixers in dance raising questions as to the ownership of sounds, of clubs began to mix portions of different records freedom and of ethics. During that time, the creative together to create "new"works.6 With the rise of rap practice has flourished in a system where, in the music later in the decade, the practice spread to the absence of statutory or judicial guidelines, rules gov- recording studio, where producers and rappers would erning the conduct of those involved have been infor- splice prerecorded passages of other works into rap mal at best. In the first judicial expression on the recordings.7 As rap grew in popularity throughout the issue, though, a U.S. District Judge has equated sam- decade, so did the practice of sampling, and it spread pling with stealing, thereby sparking an even greater to other musical genres, most notably pop and rock. a flurry of debate and activi- controversy and spurring Almost from its inception in its present form, digi- ty within the record industry. This decision, Grand tal sampling has been a controversial topic through- prightMusic, Ltd. v. Warner Bros. Records, Inc.,2 has out the record industry. This controversy has certainly sent a strongly worded message to those engaging in been abetted by the differing perspectives of those sampling, and the record industry has unauthorized whose interests are actually involved. Many well- responded by re-evaluating its practices as other suits known recording artists often do not wish to be sam- follow in the wake of the Grand Upright decision. All pled, especially those artists who have developed a of this has contributed to the focusing of new atten- so-called "signature sound" through years of hard sampling issue, calling into question tion on the entire work, only to find that their distinctiveness makes the right of artists to sample as well as the rights of them an attractive source for samplers.8 Also, musi- those being sampled. Now that the issue has been cians who make their living doing recording sessions forced, though, there exists the possibility that those fear losing employment and income to sampled within the record industry will agree upon a more equivalents of their talents.9 In addition, the owners of coherent and workable framework for the licensing of mechanical rights in works being sampled decry the samples and for compensating the owner of sampled loss of income. material. On the other hand, producers and artists who This Article will briefly discuss the history and the sample claim that they are involved in the creation of nature of the controversy. Then it will provide a new works and that their use of passages from older detailed examination of the Grand Upright decision recordings can actually stimulate new interest in the and a view toward the future of digital sampling prac- older works; if they are prohibited from doing so, tices and legal action. they argue, such prohibition will have a chilling effect A BRIEF HISTORY on both the creation of new works and the develop- ment of new technologies. 0 In essence, they claim, technical aspects of digital sampling have As the they are involved in the most current phase in popu- not the pur- been set forth in detail elsewhere, it is lar music's extensive history of recycling source mate- pose of this article to do so here.5 In its most com- rial." monly understood form, though, digital sampling Finally, there are the record companies, who refers to the electronic borrowing of prerecorded 4 often have to view the issue from both sides-that is, sounds for use on new recordings. Generally, the they are aware their catalog items are being sampled the electronic lifting of a live or process will involve while they continue to release new albums containing recorded instrumental or vocal performance from its increasing numbers of samples. As a result of this original context, where it may then be sonically dual perspective, no record company had sued over to suit the needs of the user processed or altered the sampling of its catalog until very recently," since, musical context before being transplanted into a new by winning such a suit, the company would run the PublishedFall, 1992 by Via Sapientiae, 2016 1 1 DePaul Journal of Art, Technology & Intellectual Property Law, Vol. 3, Iss. 1 [2016], Art. 1 risk of contributing to a situation where the ability of copyright owner of his intent to do so, and he must its own producers and artists to sample would be pay royalties to the owner for each copy sold." If the crippled. user gives the required notice, the copyright holder As the practice of sampling developed, it began to cannot refuse to grant her permission to record the take one of several forms. The first and most basic composition.' In the record industry, such a license is involved the taking of a certain sound-for example, known as a "mechanical" license, as the licensee has an often-imitated drummer's snare-and the re-use of obtained the right to fix the new rendition of the that sound where the independent creation or imita- work in a sound recording. The resulting mechanical tion of that sound would be impossible or impracti- royalty is set by statute, although the standard prac- cal. In fact, as computers gained acceptance in tice in the record industry is to pay seventy-five per- recording studios, it became common for producers cent of the statutory rate.? Generally, the record com- to store such distinctive sounds on floppy discs and pany releasing the new rendition of the composition to use them over and over, with varying amounts of will assume the responsibility of both obtaining the electronic processing The earliest well-known sam- compulsory license from and paying the mechanical pling dispute arose from such a use, when a sample royalty to the publisher. of percussionist David Earl Johnson was used in the However, copyright treatment of sound record- theme music for the television show "Miami Vice," ings has often been problematic. Sound recordings composed and performed by keyboardist Jan were not even protected works until 1971, when the Hammer.' Johnson had earlier agreed to let Hammer 1909 Copyright Act24 was amended by the Sound record him performing on a set of rare, old African Recording Amendment of 1971.25 The Amendment, drums which produced a distinctive sound."5 The sam- though, was primarily designed to counter the prob- ple was featured prominently in Hammer's theme lem of record piracy, or the re-recording of complete music, and Johnson did not receive compensation or albums, which was rampant at the time. credit for the sampled performance. 6 Johnson took Although sound recordings are expressly protect- the issue up with the musicians' union, which ed under the terms of the 1976 Act, the extent of that declined to become involved on his behalf since protection is less than that afforded to the underlying Johnson had originally consented to let Hammer 7 compositions. For example, Section 114(b) provides record him.! that the owner's exclusive right under Section 106(2) The second and more controversial type of sam- is limited to the right to prepare a derivative work in pling involves the actual electronic lifting of an instru- which the actual sounds fixed in the sound recording mental or vocal passage from an existing recording are rearranged, remixed or otherwise altered; the and embodying the passage into a new musical con- owner has no right to keep others from duplicating text. Naturally, the amount of material taken and the the sounds contained in the recording, so long as the manner in which it is used has varied greatly; howev- duplication is entirely the result of the independent er, in many instances, it has been clear to knowledge- fixation of these sounds.26 In other words, one could able listeners that certain records are being sampled, conceivably hire a group of session musicians to per- and that some are being sampled more than others.,8 form an exact sound-alike version without infringing This is the type of sampling complained of by the on the copyright in the sound recording, as long as plaintiff in Grand Uprtgbt, and most of the current the imitation is the result of the independent fixation debate has revolved around this type.