Tag Archives: sampling

Free Samples? Or Risky Riffs?


“I need a unit to sample and hold. But not the angry one. A new design.” Sample and Hold, music and lyrics by Neil Young

free sampleDigital sampling has become a staple of the recording industry. What’s sampling? It’s taking a snippet from one recording and splicing it into a new one. Typically, the sample is just a few bars, even a few notes. And it’s likewise typical for the producers and artists to digitally tweak those few bars or notes to alter their pitch or key and adding additional embellishments. As often or not, the listener is unaware that the “new” recording includes a “re-purposed” sample.

But is it kosher to lift a fragment from one copyrighted recording and implant into a new one?  That question has produced judicial sparring that rivals the most thorny of Talmudic conundrums.

Until last week, only one U.S. Circuit Court of Appeals, the Sixth Circuit, whose territory includes Nashville, aka “Music City,” had weighed in on this issue. It did so with Draconian precision, laying down a bright-line test. The case was Bridgeport Music Inc,. v. Dimension Films. The sample in question consisted of a chunk of guitar funk plucked from a recording of “Get Off Your Ass and Jam” by George Clinton. Specifically, a two-second sample from a four-second guitar solo was copied, the pitch was lowered, and the copied piece was looped and extended to 16 beats. Neither the brevity of the sample nor the transformation it underwent was enough to avoid a finding of copyright infringement.In the Sixth Circuits view: “[a] sound recording owner [and only a sound recording owner] has the exclusive right to ‘sample’ his own recording.”  And while a “de minimis” exception applies to other types of works (that, is, you likely can copy a phrase or two from a 400 page book without infringing the author’s copyright), the Sixth Circuit held that sound recordings are different. Samplers hoping to invoke the de minimis exception need not apply. In other words, if you want to sample, get a license and pay the piper.

But doesn’t that rule stifle creativity, which is what copyright law’s supposed to encourage? Not according to the Sixth Circuit. Leaning towards protecting the commercial interests of record labels and artists, the Court rejected a free-ride philosophy in favor of a market-driven approach. The Court identified two main reasons why musicians sample–either the sample adds value to a new recording because listeners recognize its original source, or it adds value by saving the cost or recording the same riff a second time. In either case, the sampler gets something of value, and should be willing to pay for it. Let the market decide the price.

But just last week, the Ninth Circuit Federal Court of Appeals, which includes L.A. within its jurisdiction, took the Sixth Circuit and its bright line approach to task. That case, VMS Salsous v. Ciccone (aka Madonna) also involved mining a prior recording for a musical sliver and then sliding it into a new track. In this case, the sliver was a .23 second “horn hit”–four trumpet notes forming a single chord, that originally appeared in the mega-hit dance track Ooh, I Love It (Love Break), recorded by producer Shep Pettibone in the early 1980s. In 1990, working with Madonna, Pettibone reached back to Love Breaks to salvage that same horn hit, doctoring it up in the process, transposing it to a new key, truncating it, and even adding other sounds to the chord itself.

If Pettibone and Madonna had worked this musical alchemy in Nashville and had been sued for copyright infringement there,  they would have been found guilty under the Sixth Circuit’s Bridgeport decision.  The Ninth Circuit, however, concluded that its sister court’s logic was badly flawed and that its refusal to apply the de minimis exception was dead wrong. The panel of three West Coast judges saw no basis in the Copyright Law or its legislative history to treat sound recordings any different from other works, such as books. That’s good news for recording artists who happen to be sued in L.A. or other places within the Ninth Circuit. But the Ninth Circuit’s ruling doesn’t change the Sixth Circuit’s decision, and it leaves artists in New York, Austin, Chicago, St.Louis, and other music towns on uncertain ground.

Such a  spat between two Courts of Appeal, however, may be the overture for the Supreme Court to step in and call the tune on digital sampling. Should music sampling be free, as the Ninth Circuit found? Or should producers have to pay to play, as the Sixth Circuit concluded? The answer may not be blowin’ in the wind, but its not exactly clear either. In other words, don’t be surprised if the Supremes refuse to decide whether digital samplers must “stop in the name of law” and leave the issue for Congress to sort out. And that could prove to be a “long and winding road.”

QUOTE OF THE DAY:  “People go back to the stuff that doesn’t cost a lot of money and the stuff that you don’t have to hand money to over and over again. Stuff that you get for free, stuff that your older brother gives you, stuff that you can get out of the local library.” Frank Black aka Black Francis.

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Free Samples? At Costco, Yes. In Rap and Hip-Hop, No!

“I need a unit to sample and hold.”  Sample and Hold, Neil Young

Remember the glory days of Hip-Hop?  I certainly don’t, since I wouldn’t know “Daft Punk” from “Daffy Duck.”  But a recent Washington Post article explains how the Hip-Hop world has been upended by the most unlikeliest of sources–copyright lawyers and the courts.

Back in the day, “sampling” was the bread and butter of Hip-Hop.  Artists and producers would cut snippets from older recordings and weave them into elaborate tapestries of music fragments and dance beats.  They did this with impunity, not asking permission from the sample-ees and not paying a cent in royalties.

That changed when rapper Biz Markie sampled Gilbert O’Sullivan’s tepid 70’s hit “Alone Again Naturally” for Markie’s number “Alone Again.  As the Post reports, http://www.washingtonpost.com/opinions/the-court-case-that-changed-hip-hop–from-public-enemy-to-kanye–forever/2012/07/06/gJQAVWr0RW_story.html?wpisrc=nl_cuzheads,  the O’Sullivan camp sued, the court awarded damages, and the course of hip-hop history changed irrevocably.

Today, rappers who want to flavor their tracks with tasty bits of someone else’s recording must pay to play, or wind up in court.  Just recently, the Beastie Boys ended up on the wrong side of a lawsuit when they sampled from two Trouble Funk tracks.  Not getting permission and paying a fee meant trouble and funk for the Beasties.

Because of these lawsuits and the copyright law that underlies them, sampling has become something of a luxury, affordable only to the most succesful recording artists.  The ability to lard a record with pricey samples has become a status symbol.  As the Post reports, Kanye West flaunts his ability to afford costly samples from the likes of prog-rock icon King Crimson.

Less well-heeled rappers have, in Darwinian fashion, been forced to adapt in order to keep up with the Kanyes.  Some have taken to trolling through long forgotten recordings of yore to find aurally intriguing soundscapes fit for sampling.  These retro rummagers figure that the more obscure the sample, the lower the chances of being sued for copyright infringement. Risky?  Perhaps. But sampling is so ingrained in the hip-hop and rap ethos that it’s a risk emerging artists are willing to take.  When it comes to sampling, it’s apparently not an option to “just say no.”

The courts may have upped the ante, but artists are still finding creative ways to keep sampling alive.  As the Post’s Chris Richards concludes: “no court decision can regulate the imagination.”

QUOTE OF THE DAY:  “Hip-hop is more about attaining wealth. People respect success. They respect big. They don’t even have to like your music. If you’re big enough, people are drawn to you.”  Jay-Z

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