Music Sampling and Copyright Law - Assignment Example

Music sampling and Copyright Law Introduction In this day and age of discoveries and inventions, intellectual theft has made it imperative for the creation of laws that protect intellectual and creative rights. Music too, has fallen in the category. However, as with every law, there are perceived loopholes and so too, the Copyright Law pertaining to music. One main contention is that the use of a sampling of previously composed music be permissible in the creation of new music. However, present copyright laws make this illegal. In the mid- to late 1980s, hip-hop artists had a very small window of opportunity to run wild with the newly emerging sampling technologies before the record labels and lawyers started paying attention. No one took advantage of these technologies more effectively than Public Enemy, who put hundreds of sampled aural fragments into It Takes a Nation and stirred them up to create a new, radical sound that changed the way we hear music. But by 1991, no one paid zero for the records they sampled without getting sued. They had to pay a lot. (McLeod, #20). Digital audio sampling poses several interesting challenges to existing property laws and by looking at the specific case of rap music, a form that is in many ways based on the opportunities presented by sampling technology, these confrontations are highlighted. (Shumacher, 1995) Understanding Music Sampling and Copyright laws Before one attempts to co-relate the concepts of Copyright Laws and Music Sampling, it would be prudent to understand each of the concepts in terms of their history and origin (based on need). Only then will a co-relation between the two concepts be more comprehensible. 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. While only 8 of the top 100 albums contained sampling 10 years ago, almost a third of the current Billboard 100 albums use sampling as an artistic tool. 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. 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 (Lindenbaum, 1999)." Understanding the loopholes Here is a simple case in study of the intricacies related to US Copyright Laws. Shirley Dixon was thirteen years old in 1976, when she first played the Led Zeppelin song "Whole Lotta Love" for her father. Shirley had borrowed the 1960 album Led Zeppelin II from a friend because the hit song from it reminded her of one of her father's compositions. Her father was the legendary blues composer, performer, producer and bass player Willie Dixon. Young Shirley was well-versed in the "property talk" of copyright law. She had been typing her father's lyrics and filling in copyright registration forms since she was eight years old. Shirley applied her keen ear and mind to the Led Zeppelin song and concluded that "Whole Lotta Love" reminded her of her father's writing style. He agreed that "Whole Lotta Love" sounded like his obscure song "You Need Love" which was recorded by Muddy Wayer in 1962. Willie Dixon filed a suit in 1985 against the British rock group. They settled their dispute in 1987. Although this case never made it as far as a court hearing, the tensions between the older blues composer and younger hit makers illustrate many of the contradictions and complications of American music copyright (Vaidhyanathan 2003). While discussing the Copyright Laws, one frequently also encounters the concept of fair use. A comparable example of the application of the fair use doctrine in a Untied States sampling case is provided by Campbell v. Acuff-Rose Music, Inc (1994). This case concerned the rap group 2 Live Crew who utilized the composition 'Oh Pretty woman', the work of Willaim Dees and Roy Orbison, as the basis for their own composition entitled 'Pretty Woman'. 2 Live Crew took the distinctive bass line and adapted the lyrics so that they were more in keeping with their own distinctive style. Effectively this took the song into the cachet of parody. The question for the court was whether this was indeed an infringement of copyright. On the face of it a strongly arguable case could be made that a substantial part of the work had been taken. Could the defense of fair use nevertheless be applied Four issues needed to be considered in applying the fair use defense under US copyright provisions 1) The purpose of the use, including whether the use was commercial or for educational purposes; 2) The nature of the original copyright work; 3) The amount of work taken in relation to the work as a whole 4) The effect of this upon the potential market for the original work The upshot of the decision (in 2 Live Crew's favor) was that in US law judgement of fair use involves a balancing act that takes into account issues of creativity (of new work) and protection (of existing work) (Frith, Marshall, 2004). The Ethics Of Sampling Music sampling has proven to be quite convoluted. Clearly sampling has created several problems in the field of copyright law. These are some of the possible solutions are discussed below. The main problem with sampling is that a musician is using not even an exact copy, but the original work of somebody and passing it off as one's own. A press release from the Music Publishers Association Ltd. (M.P.A.) made the point: 'How would you like it if your property was stolen, cut up in pieces and put back together in a different shape and sold to someone else'. It also raises the question of whether the person who played the original sample that was looped back to make a new song owns the whole track or whether the person who took the sample and arranged it owns the track. One could even say that the sample is being stolen from the record company who paid for the studio time. (Copyright Law and the Ethics of Sampling). Recent Legal Decisions The most recent significant copyright case involving sampling held that even sampling three notes could constitute copyright infringement. Bridgeport Music Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005). This case was roundly criticised by many in the music industry, including the RIAA. There has been a second important US case on music sampling involving the Beastie Boys who sampled the sound recording of a flute track by James Newton in their song "Pass the Mic". The Beastie Boys properly obtained a licence to use the sound recording but did not clear the use of the song (the composition on which the recording is based including any music and lyrics). In Newton v. Diamond and Others 349 F.3d 591 (9th Cir. 2003) the US Appeals Court held that the use of the looped sample of a flute did not constitute copyright infringement as the core of the song itself had not been used. It seems that the position in law now is that with use of the sound recording any use without permission will constitute an infringement; however with the composition there must be some substantial use-the 'heart' of the song itself must be at least recognisable. This extends to both the music and the lyrics: a June 2006 case involving Ludacris and Kanye West held that their use of the phrases "like that" and "straight like that" which had been used on an earlier hip-hop track by another artist was not infringing use. Sampling can involve several seconds of a song, or only a small "riff" or sequence of notes or sung words. In some cases artists who publish samples in their music have obtained written permission or a license to sample a song by the copyright owner of the sampled song. In more cases, permission is not obtained. As a recent court opinion observes, where you "stand" on the copyright issues of this practice often depends on where you "sit." Artists whose songs are being sampled without permission generally condemn the practice, while artists who sample music without permission defend it. After many years of legal skirmishing, the first court opinion has been published as a first impression analysis of sampling. The court's analysis is somewhat complex but concludes that no sampling can be made without a license or permission. The reason is not because of the copyright to the music composition in the sample, but because of the copyright to the sound recording. The court interprets the copyright statute, 17 USC Section 114, as prohibiting the copying of the whole or any part of a sound recording. The new ruling reasons that you should either pay for a license to sample a song with the original sound recording, or go into the studio yourself and recreate the sample with your own sound recording. (Music and Copyright). Some useful alternatives The time it takes to clear samples yourself could be prohibitive and keep you away from your creative pursuits, so you might want to consider some alternatives. First of all, some companies have created royalty-free recordings that have authentic-sounding period pieces of music available for sampling at no cost beyond the price of the CD. You can also go into a recording studio with the musicians of your choice and create your own original master recording to sample in order to avoid going through the clearance process with a record label. Note, however, that if you take the cover-song route for sampling, you still have to clear the use of the composition with the publishing company that owns the rights to the song. You can also hire a third party to clear the samples for you. Sample clearance specialists will do all of the necessary work to secure the rights you need to clear your samples. Their fees vary from hourly to per song to project-based. Referrals to sample clearance companies can be obtained from record labels, your performing rights organizations, or - as always - your fellow musicians and producers in the business. (Aczon, 2002) Conclusion Music sampling and its relation to copyright laws has been a bone of contention among musicians themselves as well as lawmakers for years now. Though a clear solution is not something that will be arrived at in the near future, there are several attempts being made at clearing the path to creativity, In truth, in literature, in science and in art, there are, and can be, few, if any, things, which, in an abstract sense, are strictly new and original throughout. . . . The thoughts of every man are, more or less, a combination of what other men have thought and expressed, although they may be modified, exalted, or improved by his own genius or reflection. (Schumacher, 1995) Works Cited Aczon Michael A. Sampling and Copyright- How to obtain permission to use samples. http://emusician.com/ar/emusic_clear/ 2002. Copyright law and the ethics of sampling. http://www.low-life.fsnet.co.uk/copyright/ Part III Problems and solutions Frith Simon, Lee Marshall, eds, Music and Copyright, Second Edition, Edinburgh, Edinburgh University Press, 2004 Lindebaum, John. Music Sampling and Copyright Law. Senior Thesis presented to the Faculty of the Woodrow Wilson School of Public and International Affairs http://www.princeton.edu/culturalpolicy/studentpap/undergrad%20thesis1%20JLind.pdf. 1999 Music and Copyright. http://publishing.wsu.edu/copyright/music_copyright/. Posted from WSU Photo Archives Mcleod, Kembrew. How copyright changed Hip-hop. An interview with Public Enemy's Chuck D and Hank Shocklee. http://www.stayfreemagazine.org/archives/20/public_enemy.html Sampling Music. Wikipedia, free enclyclopedia http://en.wikipedia.org/wiki/Sampling_(music)#Legal_issues_in_practice Schumacher, Thomas. 'This is sampling sport'. Digital sampling, rap music and the law in cultural production. Media, culture and Society 17(2) 91995): 253-73 Sykes, Jeremy Scott. Copyright-The De Minimis Defense in Copyright Infringement Actions Involving Music Sampling. University of Memphis Law Review, The, Spring 2006 Vaidhyanathan, Siva. Copyrights and Copywrongs: The Rise of Intellectual Property and how it Threatens Creativity. NYU Press 2003. . Read More