Richard Harrison Intellectual Property Law Supervisor: Alan Story

Richard Harrison Intellectual Property Law Supervisor: Alan Story

Richard D. Harrison March 2005

‘Copyright Laws are Too Harsh for Musicians Who Sample’

Intellectual Property Law: LW556

Supervisor: Alan Story Word Count: 5227

Glossary[1]

Sample

1. Ascertain the momentary value of (an analogue signal) many times a second so as to convert the signal to digital form

2. A small part of a song which has been recorded and used to make a new piece of music

Sampler

1. An electronic device used to copy and digitally manipulate a segment from an audio recording for use in a new recording

2. A person that takes samples

Sampling

The technique of digitally encoding music or sound and reusing it as part of a composition or recording.

Abstract

The emergence and advance of digitisation enabled new ways of manipulating music and saw the birth of new genres. Sampling can been seen to be at the forefront of this but is a copyright minefield due to the concepts of ownership and unauthorised derivative works. The strict judicial interpretation of what constitutes an unauthorised sample significantly stifles the creativity of musicians who rely on the use and manipulation of samples to create ‘new’ music. Laws dictate that this music is not really ‘new’ at all. Musicians should be able to protect their work and heavy unauthorised use of a single sample should be restricted though this dissertation argues that the combination, disguise and reworking of sampled ‘snippets’ should be free of the stranglehold of copyright and not susceptible to infringement action. I argue that the ‘solution’ of sample clearance is an unaffordable reality for aspiring musicians and though Creative Commons is an attractive prospect its aspirations will also go unfulfilled. Copyright laws are exploited by the dominant forces in the music industry and can be seen to have had a direct effect on the ‘sound’ of the genres who rely on them thus changing their essence altogether.

And I’ll be damned if I hear another person say

That isn’t music because they’re not real instruments you play

Narrow minds will say this

But how many people can use a computer and play this

Call me a rapist

But we take you to levels (you never even knew) James-

Now some young people know you’re name

Bring fame to the dead and make Curtis sound hard-core

Now who could ask for more?

You want to change the law

And I deplore what you said about the way we made this

Sampled the drums but it don’t sound like how he played it

Music always stems from other people

Listen to the radio

The same melodies played time and time you know

Rave comes from electro

Electro comes from disco

You can put it all in the same mix

Thrash beats metal guitar from Jimi Hendrix and punk

Hip Hop from the funk

And some call it junk

You want to stop the chain of music, you’ll f*** up the whole system

And every single musician will be a victim .

--Braintax[2]
Introduction

As opening quotations go, this must seem spectacularly crass and severely lacking in academic propriety. But context is all. Joseph Christie AKA the ‘underground’ UK hip-hip pioneer and producer Braintax, expresses his disdain for the prejudicial views of the conservative world against musicians who use the digital sampler as their exclusive tool of musical expression. The capitalist construct of the ‘underground’ in the music industry is a term synonymous with notions of impropriety and illegality. I use this lyric as an ironic gesture of support to the sonic ‘outlaws’ of the underground, the digital samplers who search for music of a bygone era, resurrect and recontextualise it, thus giving it a new lease of life as part of a new contemporary musical work.

If an artist is not established and signed to one of the labels at the head of the music industry who can afford to pay for sample clearance, current copyright laws will often serve to deny any large scale commercial release of an independent sampler’s music. The aspiring electronic musician’s economic incentive to create is being diminished by the stranglehold of the industry’s dominant record labels who exploit the statutory provisions in the Copyright, Designs and Patents Act 1988 as a tool of oppression. The sample clearance system as it stands has the force of the law behind it and either or both need to change to ensure creativity and the production of new original sample based music. The law at present does not function to cater for the shift that has occurred in popular culture and the advancement in music technology, it stifles creativity and acts as a barrier to new aspiring producers.

Sampling: Lazy Composition or Creative Transformation?

There are possibly two contrasting schools of thought on digital sampling:

1) The ‘Copy Right’ maintain sampling is a lazy technique of music production as it extinguishes the function of the musician, a producer can obtain what he needs from a single recording so a musician is no longer needed. However, I argue that although this may be true to some extent, the requirements of a producer may not make this financially viable. If a producer wishes to sample an orchestral track, then the cost, time and logistics of hiring an orchestra to fulfil his needs for possibly a five second ‘sample’ that he will loop, makes this simply impossible. However, it can be argued that if the record companies get involved when a producer must clear his sample, then the cost of clearing it would be higher than hiring musicians to fulfil his needs.[3] This view of digital sampling favours a strict notion of the ownership of intellectual property therefore sampling is essentially theft of a past-musician’s work if permission is not cleared. This view maintains that all sampling is lazy regardless and intellectual property laws exist to protect past creators.

2) The contrasting idea held by people who could be termed the ‘Copy Left’

favours the idea that intellectual property laws should also promote creativity. Digital sampling is a thoroughly creative process and although using previous copyrighted recordings in its creation, a unique sound collage is created by a sampler combining this arrangement of sampled snippets. Samplers should not be strangled by restrictive copyright laws as the sample of the recording is quantitatively insubstantial.

I maintain a more liberal standpoint which does lean towards the Copy Left but with qualification. I argue ‘good’ sampling and production should be exempt from current copyright laws however ‘lazy’ sampling should still be subject to royalty fees. However, this is presents a thorny legal issue as what constitutes ‘good’ or ‘lazy’ sampling. The law purports to be neutral to aesthetics as it will happily grant copyright in a good or bad book, an uninteresting or superlatively beautiful song. The conflict between sampling and copyright law simply brings this argument into full focus. [4]

It is difficult to define what ‘good’ production using sampling is on paper. Samplers often only use a few notes from a pre-recorded musical work and combine it into an entirely new multi-layered new musical work wherein the sample is still perhaps slightly recognisable but it is only minimal. In my opinion, by doing so, they have not used a substantial part of a previous recording in its quantitative definition. However, they may have used the most readily identifiable small segment of the track so qualitatively this amounts to a substantial part. If the sample is small, it should be free of illegality as the original performer’s or composer’s effort into producing or playing that single note or phrase is minimal however an entire rhythm is different and original owners of copyrights should be protected.[5]

This area of the law is a particularly grey area. Producers want guidance; black and white rules and principles of how they can conduct creative legal sampling of pre-recorded music. Producers want a quantitative decision which would permit minimal use without sample clearance being needed, a rule that permits samples of under 3 seconds for example. Anything more than this would be subject to royalty fees on a sliding scale as to the extent of the sample. A ruling such as this could, if obeyed enable many new artists to emerge from this great incentive to create and achieve copyright protection in their own right.

Digitisation and the technology behind sampling [6]

Before the emergence of digital audio and the endless opportunities it offered, the hip hop DJs of late 1970s black urban America were the first pioneers of live ‘sampling.’[7] It is important to understand the emergence of a genre which discarded all previous musical conventions, rules or ethics, in understanding why it clashed with copyright to the extent that it did. The hip hop DJ would use two turntables to confront their mainly African-American audience with additional acoustic effects taken from the media environment around them. Snippets from television jingles, political speeches, movie soundtracks and video games were commonly inserted into these live-mixes to create a collage of sound.[8] By doing so, the DJ’s would thus use the turntable as an instrument of its own. However, as DJing was a manual technology, its range of effects was as limited as the manual dexterity of a lone individual.[9]

The invention of the digital sampler in the late 1970s was only enabled with the introduction of digital audio. Digital audio enabled recorded sound to be represented in binary code, hence computers could be involved in sound reproduction for the first time. Opportunities to distort music in the analogue format were limited though this new technology enabled this with ease. Although the first samplers had a limited capabilities, modern samplers are able to distort, speed up or slow down the sample, play it backwards, filter and isolate individual components, loop them, rearrange them, an almost endless number of possibilities to re edit the sample. The samples taken from different records are then layered in a compositional arrangement. An entire drum set can be pieced together from single strokes from many different records. [10]

Initially samplers were very costly but economies of scale soon enabled the price of the sampler to tumble and thus the technology was soon within reach of the consumer to exploit its capabilities.[11] The sampler was and is a very democratic tool which allows even those with little or no formal training to create their own music. David Sanjek recognizes: ,“It is a longstanding practice for consumers to customize their commodities, command their use and meaning before they are commanded by them.”[12]

Consequently, hip hop DJ’s gleefully embraced the digital sampler as it provided the necessary stepping stone to record and digitally manipulate the live collage of sound they created. However, the disregard of musical convention, rules and any type of formalities in their art form was instrumental in bringing a clash with copyright law and the owners of the samples they used. The introduction of the sampler engendered a genuine revolution in the way hip hop was made.

With the sampler, hip hop groups were able to make modern music out of classical sounds to capture the quintessential funk and maintain the gritty authenticity of old tracks re-recorded on state of the art equipment. The introduction of the sampler raised great controversy, raising the question of whether this practice was art or thievery. Certainly it was an homage to resurrect the hits of the past and transform elements of them or combine many hits to make a new contemporary work, however the record labels did not see it this way.

Artists who made extensive use of sampling in creating new music had an undisturbed ‘honeymoon’ period in the late 1980s and the very early 1990s when the record industry were caught unawares as to the potential for exploitation. Public Enemy voiced by the charismatic front man Chuck D, an artist with significantly controversial views on the laws regarding sampling and online music,[13] were able to ‘run riot’ in this era without getting sued. Public Enemy produced their 1988 album ‘It Takes a Nation of Millions to Hold Us Back’ which contained hundreds of samples without recognition in the album sleeve.[14] Similarly, other groups such as N.W.A, the Beastie Boys, Ice Cube, De La Soul and Gang Starr [15], were all free to create albums of high critical acclaim using hundreds of un-cleared samples during this period, before the restrictive ruling in Grand Upright v Warner (1991)[16] was decided.

Although the big music companies had been caught unawares, they soon took notice of the potential of this technology for abuse by producers sampling their extensive back catalogues without permission. More money could be made from long forgotten artists whose popularity had dwindled, without increased expenditure. Hip hop instigated a sampling revolution and white corporate American wanted to cash in and contain black cultural expression. Sampling and copyright law clashed thus the record labels began to enforce their rights and drafted the lawyers in.

Copyright: The Current Law

“Thou shalt not steal.”[17] When rapper Biz Markie sampled the melody from Gilbert O’ Sullivan’s 1972 hit ‘Alone Again (Naturally)’[18] for his song ‘Alone Again’ on his 1991 album ‘I Need A Haircut,’[19] Judge Kevin Thomas Duffy opened with this (un attributed) Biblical admonition from Exodus. Gilbert O’ Sullivan denied Biz Markie the right to use the sample but Biz Markie ignored this and Gilbert O’Sullivan filed suit. In his opinion, Judge Duffy likened Biz Markie to a common thief, granted an injunction against future distribution of the album and song, and referred the case to a U.S. district attorney for possible criminal prosecution. Although Biz Markie never served time for his alleged violation of the ‘Eighth Commandment,’ the case did set the precedent for viewing unlicensed sampling as a crime.[20]

Unauthorised sampling is theft. If you want to be a jurisprudential purist about it then this three word sentence sums the technique up. [21] However, I know of no criminal convictions to date that have arisen because of a copyright violation from sampling. The majority of legal precedent regarding digital sampling stems from a discrete number of cases in the USA. In 1993 Jeremy J Beadle recognised the absence of English case law on copyright infringement. [22] The most likely case to reach the English courts was in 1989 concerning ‘The Beloved’ sampling “a mere eight notes” from a CD by Hyperion of compositions by medieval composer Abbess Hildegard of Bingen.[23] The case reached a preliminary ruling in which the judge Hugh LaddieQC indicated he had ‘some sympathy’ with the defendant’s viewpoint and was prepared to let the case go on to full trial. However, it was the plaintiff who ended up backing down as the defendants were a much larger record label. Consequently, no legal precedent was set in the UK regarding whether the size of the sample was an issue.

Twelve years on, little has changed. A quick search on Westlaw reveals precisely the same answer. In the UK, settling out of court is the norm in the music industry when a sample has been taken without permission. Although this case possibly offered some hope if it were to have proceeded to full trial, samplers in the UK are justifiably wary of English Courts blindly following the precedents set in the USA, preferring to settle out of Court rather than to litigate through to judicial decision which could prove very costly.

In the United Kingdom, the provisions of the Copyright, Designs and Patents Act 1988 (CDPA 1988) regulate the copyright system. Copyright subsists in “original literary, dramatic, musical or artistic works” and in “sound recordings, films or broadcasts.”[24] Section 16 of ‘the Act’ confers upon copyright owners five restricted, exclusive rights to control how, when or if their copyright works may be used.[25]

Musicians who sample from sound recordings produce what are known as secondary or derivative works defined in s. 5A(1)(b) of ‘the Act’ which stipulates a sound recording is: “a recording of the whole or any part of a literary, dramatic or musical work, from which sounds reproducing the work or part may be produced, regardless of the medium on which the recording is made or the method by which the sounds are reproduced or produced.” Therefore copyright would certainly subsist in parts of previous recordings which have been incorporated into the derivative work through sampling. However, if these songs are highly original in their own right and permission has been obtained and a fee paid to use the samples, then a sampler’s derivative work is granted a copyright of its own.[26] If a fee has not been paid for a license to use the sample, then if the sampler attempts commercial exploitation of his derivative work he may breach copyright on up to three counts.

Copyright subsists in ‘the song’ otherwise known as the ‘composition right’ which will usually be owned by the music publisher. Copyright also subsists in the recording, otherwise known as the ‘mechanical right’ which is usually owned by the record label that issued the recording. The third right can be seen as the moral right of an author (which always retain with the author and cannot be assigned as with the actions in s.16). [27]