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Sampling Controversies Heat Up in the New Millennium

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The other person who was being sampled, their attorneys got up and said, “Well, hey, where’s my piece?” That’s when all the lawsuits started happening.—Shoshana Zisk

The copyright conflicts that began swirling around sampling in the 1980s certainly haven’t gone away. Indeed, the disputes have only intensified and expanded in recent years. And it is probable that they will continue, because every major label likely owns and distributes numerous ticking time bombs waiting to be ignited by a copyright infringement lawsuit. A quarter century of nonstop sampling undoubtedly has produced a very large number of uncleared samples that are embedded in hundreds of albums released by major labels. Even though some of them have been discovered, many of our interviewees believe that a huge number have gone undetected—for the time being, at least. Lawsuits can arise long after a sample-based album was made.

We know that copyright law protects the music industry from copycat record companies that sell exact or substantially similar copies of the original work. But can copyright law protect the music industry from competition that comes from its own customers, that is, the general public?

The potential for sampling lawsuits increased after the Bridgeport Music v. Dimension Films case of 2005, a case we mentioned in the introduction that centered around an N.W.A. song from 1991 titled “100 Miles and Runnin’.” This gangsta rap song was used in the film I Got the Hook-Up. The song sampled two seconds and used three notes from a guitar solo taken from the Funkadelic song “Get Off Your Ass and Jam.” The sample was looped by N.W.A. and repeated intermittently throughout the song, where it was placed fairly low in the mix to provide a texture rather than a central hook. A federal appellate court concluded that N.W.A.’s use was an infringement of the law and infamously declared, “Get a license or do not sample.” The floodgates opened after Bridgeport with several high-profile lawsuits targeting classic hip-hop albums such as Notorious B.I.G.’s Ready to Die and Run-DMC’s Raising Hell. Both of these albums, important contributions to hip-hop culture, were removed from record store shelves and from online vendors after copyright infringement suits were filed.

The Notorious B.I.G. case centered around a sample of “Singing in the Morning,” a song by a funk band from the 1970s named the Ohio Players, which Biggie and the producer Sean “Puffy” Combs (a.k.a. Puff Daddy, P. Diddy, or Diddy) sampled for the title track of Ready to Die. They were found liable for infringing the copyright of both the sound recording, which was owned by Westbound Records, and the underlying composition, which was owned by Bridgeport. After the injunction, Ready to Die could no longer be sold lawfully, and the trial court also awarded over $4 million combined to Westbound and Bridgeport. The plaintiffs and defendants could not reach a licensing agreement in the wake of the lawsuit, and thus the only way Ready to Die could return to the legitimate marketplace was to remove the offending sample and completely remaster the album, an expensive proposition. While the new version of “Ready to Die” still features Biggie’s smooth vocal flow— which is part of the album’s appeal—a side-by-side comparison demonstrates that the reworked version loses something aesthetically.

One of the more unexpected sample-related lawsuits in recent years— perhaps reflective of the post-Bridgeport landscape—was the lawsuit brought by the Knack in 2006. The Knack alleged that Run-DMC sampled the guitar riff from their hit from 1979, “My Sharona,” without permission in the rap group’s track from 1986 titled “It’s Tricky.” The lawsuit was unanticipated because even though “It’s Tricky” was a Top 40 radio and MTV hit, the guitar sample had gone undetected by the band for twenty years. If one pays close attention to the two songs, one can hear the similarity; however, a lot of rap and rock fans surely missed this Knack sample because it was detached from its original context. The reworked Knack riff embedded in the Run-DMC song is so minimal and generic that it could come from almost any new wave song from that era. There was nothing particularly unique about it.

Another interesting twist in the Knack versus Run-DMC lawsuit story was that the primary hook that runs through “It’s Tricky” actually derives from a different song from the same era: Toni Basil’s “Mickey.” According to the recollection of DMC, one of the group’s two MCs, they got the idea for “It’s Tricky” from a rhyming routine done by the old-school rap group the Cold Crush Brothers, in which “they’d use a melody from another record and put their names and words in there.” Explaining how Run-DMC’s song was based on Basil’s “Mickey,” DMC states, “I just changed the chorus around and we just talked about how this rap business can be tricky to a brother.”12 If you are familiar with both songs, compare “Hey Mickey, you’re so fine / You’re so fine you blow my mind, hey Mickey!” with “It’s tricky to rock a rhyme / To rock a rhyme that’s right on time, it’s tricky!” Same cadence, rhyme scheme, and nearly identical sing-along hook. It is somewhat ironic that the song that Run-DMC borrows much more from was not the one that caused them legal hassles, in part because of the way the law treats distinct forms of musical borrowing quite differently.

The Knack versus Run-DMC lawsuit and others like it have implications for any major or independent record label that has ever put out a sample-based album, as well as movie and television studios, other content providers, and music distributors (both online and off). For instance, when the Knack sued Run-DMC it also sued iTunes—Apple’s online music store—as well as Amazon, Napster, Yahoo, and others that sold either cd or MP3 copies of the song. The lawsuit alleged that these distributors were also liable for copyright infringement, despite the improbability that any of these companies was aware of the sample or knowingly conspired to distribute an infringing product.

This kind of legal “gotcha” game has turned into a bankable business strategy. Kyambo “Hip Hop” Joshua tells us about a friend of his who represents a widely sampled music catalogue. This person makes a nice living extracting money from downstream users and distributors who have not secured licenses for samples of the copyrighted music he controls. Hip Hop says that his friend is strategic about the way he goes about licensing his copyrights. “What I mean by that is he’ll do a license with someone who wants to release a record, and he limits to album-only rights, which means you can only release the record,” Hip Hop says. “Then a song from that album gets licensed in a commercial or a movie and—lo and behold—now he can go to the movie company or the advertising company and require them to license it, even though that movie company had no idea what was going on, and they assumed everything was okay.”

Hip Hop reminds us that one doesn’t need to know about a potential infringement in order to be liable for it. This was the situation in Bridgeport when the production company Dimension Films included N.W.A.’s “100 Miles and Runnin’” in its movie I Got the Hook-Up. Even though producers and executives at the movie company likely had no idea that N.W.A. had embedded an unauthorized sample in its song, Dimension was still liable for copyright infringement because it had not obtained permission for its indirect use of the sample in its film.

Sampling as a Harbinger of Future Controversies

A wide range of critical commentary, mostly awful but some brilliant, has exploded on the Internet, as more have come to master the remix capabilities of digital technologies…  The potential of this technology is extraordinary. Its artistic potential is obvious; its political potential is just beginning to be glimpsed…  Yet this form of speech —remix using images and sounds from our culture—is presumptively illegal under the law as it stands.—Lawrence Lessig, “Free(ing) Culture for Remix”

Beyond the ticking time bomb that film studios, television companies, music retailers, and other distributors face as a result of unlicensed samples lies another set of licensing quandaries. These complex scenarios result from two now-familiar technological developments. The first, personal computers with widely available and even preinstalled software, allows people to edit music and video in ways that were impossible or prohibitively expensive in previous decades. The second, Internet connectivity (especially the advent of broadband), allows people to distribute widely the fruits of their creative production at an extremely low cost. Together, these technological advances make it easy to access a copyrighted work; combine it with other copyrighted works, which may themselves incorporate still other copyrighted works; add one’s own sounds or images; and distribute the recombined product across the world in seconds, making thousands of copies in the process.

This sequence of events—once the domain of entertainment industry professionals alone—is now an everyday occurrence that can be accomplished by amateurs. But can modern copyright law and current licensing practices handle so-called user-generated content? Digital sampling has a lot in common with YouTube’s plethora of videos that often remix existing material. Both trends reflect the plummeting cost of sophisticated recording and editing software. As the hip-hop journalist Jeff Chang explains:

Sampling is the kind of technology that’s really shifted the way that people consume and produce culture. It used to be the kind of thing where a record company would have a record to produce, and they’d put all kinds of money behind it, and they’d send it down to you, the consumer, and you were supposed to passively accept it and buy it and enjoy it and dance to it—Saturday Night Fever, or whatever. Instead, these days what you have is people that are listeners and fans of the music being able to do their own remixes with technology, to do their own mash-ups, to do their own versions and to redo this type of stuff and to put that out into the world. So, the consumers have become producers, and this has taken a lot of power away from the record companies.

Understandably, the owners of copyrighted material are interested in asserting whatever legitimate rights they have regarding how their works are used. We know that copyright law protects the music industry from copycat record companies that sell exact or substantially similar copies of the original work. But can copyright law protect the music industry from competition that comes from its own customers, that is, the general public?

Copyright law, whether through Congress or the courts, has already reacted to the power of contemporary personal computers and network technology on multiple fronts, most prominently in the area of file sharing. The act of downloading and uploading copyrighted files is understood to violate the law. Under certain conditions, the makers of file-sharing software will be liable for contributory infringement based on the illegal activity of their users. Perhaps this approach has struck an acceptable balance and allowed a legitimate market for downloaded music to develop on iTunes, Wal-Mart, Rhapsody, eMusic, Amazon, and other sites. Or perhaps the law has unnecessarily stifled the music-spelunking delight of services like the original Napster and merely pushed underground whatever forms of file-sharing software are currently in existence.

Whatever one’s conclusion about the correct policy, the dispute over file sharing forced the law to react to technological change and grapple with the complex issues involved in it. Lawsuits have also forced the courts to respond to sampling, which presents quite distinct legal issues from file sharing. But, with some exceptions, courts have not addressed sampling in a thorough or farsighted way. Instead, courts helped bring the golden age of sampling to an end, often without attention to the consequences for creativity. Anyone intrigued by the potential for remix culture to change entertainment, or even to change our public discourse, has an interest in seeing both public and private institutions address digital sampling in a more productive and realistic manner.

Battles over how copyright should respond to technological change, cultural trends, and new musical practices cannot be settled in an abstract way based on extreme points of view on either side. Only by studying the history of sampling and working toward a compromise among all competing interests can we find a path toward a sensible copyright policy that can govern remix culture. An engagement with particular practices in the real world will allow us to find the right balance between copyright and the public domain, between licensing and unfettered use, and between compensation and access. In this spirit, chapter 2 places digital sampling in its proper context within the larger history of sound collage in its many diverse forms.

Kembrew McLeod is Associate Professor of Communication Studies at the University of Iowa. He is the author of Freedom of Expression®: Resistance and Repression in the Age of Intellectual Property and Owning Culture: Authorship, Ownership, and Intellectual Property Law, and co-creator of the documentary film Copyright Criminals. Peter DiCola is Assistant Professor at Northwestern University School of Law. He is a board member and former Research Director of the Future of Music Coalition. Jenny Toomey is Program Officer for Media and Cultural Policy at the Ford Foundation. Kristin Thomson is Education Director at the Future of Music Coalition.

© 2011 Kembrew McLeod, Peter DiCola, Jenny Toomey, Kristin Thomson

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