Wednesday, September 08, 2004


more expensive than you thought

I'm no legal expert (much to the consternation of my family) but this recent ruling by the 6th Circuit of Appeals is worth talking about: "Court Rules That All Sampling Must Be Cleared".
    "When P. Diddy rapped in 1997 about taking "hits from the '80s," it didn't sound so crazy, because sampling had been an integral part of rap music for years.

    On Tuesday, however, a federal appeals court found the process a bit less reasonable, ruling that artists must pay for every musical sample in their work.

    The ruling says artists must pay for not only large samples of another artist's work, but also snippets smaller notes, chords and beats that are not the artist's original composition which had previously been legal, according to The Associated Press.

    Three judges sitting on the panel of the 6th Circuit Court of Appeals in Cincinnati said the same federal laws currently in place to halt music piracy will also apply to digital sampling, and explained, "If you cannot pirate the whole sound recording, can you 'lift' or 'sample' something less than the whole? Our answer to that question is in the negative."

    The case at the crux of this new ruling focuses on the 1990 NWA song "100 Miles and Runnin'." The track samples a three-note guitar riff from a 1975 Funkadelic track, "Get Off Your Ass and Jam." The sample, in which the pitch has been lowered, is only two seconds long but is looped to extend to 16 beats, and appears five times throughout the track.

    The NWA song was included in the 1998 film "I Got the Hook Up," which starred Master P and was produced by his No Limit Films. The film company has argued that the sample was not protected by copyright law.

    In 2002, a lower court said that though the Clinton riff was in fact entitled to copyright protection, the specific sample "did not rise to the level of legally cognizable appropriation," according to the AP. The appeals court opposed that decision, explaining that an artist who acknowledges that they made use of another artist's work may be liable, and sent the case back to the lower court.

    "Get a license or do not sample," the court said Tuesday. "We do not see this as stifling creativity in any significant way."
Let me first point out that it only took the court system about, oh, 15 years to catch up with this. The key rulings against hip-hop and sampling actually came down in the late '80s, through at least two cases I can recall. One was The Turtles vs. De La Soul in 1989, where the rock band sued De La over the use of "You Showed Me" for De La's "Transmitting Live From Mars." In that case, whether your agreed with the ruling or not (personally, I didn't then and I still don't now), you had to admit that De La's use of the Turtles was clear and blatant - it was an "obvious" sample. In this case though, Tommy Boy settled out of court with the Turtles. Biz Markie was not so lucky when Gilbert O' Sullivan sued him over the use of the song "Alone Again (Naturally)" - that went all the way through the court system and Biz Markie was found in violation of copyright laws. If I'm not mistaken, that ruling has likely been the key precedent over subsequent decisions over sampling usage.

People have had and will have long, torturous debates over the ethics of sampling writ large. Personally, I think this was a bad call then and it really stifled a creative push by producers like the Bomb Squad (who would literally have dozens of samples stacked on-top of each other) to find new ways to manipulate sound and music - all done, in my opinion, without exploiting the original artist's intellectual property. Sampling is not like an unlicensed cover (though in Biz's case, his song was called "Alone Again." His bad.) and even in other cases where the use of a sample is "obvious," the context of the usage most of the time completely transforms how a chord or melody is being used.

This new ruling takes things far, far, further. Since the days of Paul C, Ced Gee and Marley Marl, many producers have been splicing and chopping up samples: basically, breaking them into smaller component parts and then reassembling them into new chords, rhythms, melodies. What they're essentially sampling at this point is less a musical composition and more of a SOUND: the timbre of a drum snare, the warmth of a bassline, etc. What this new ruling states is that it doesn't matter if create a completely new musical composition through the atomized elements of another song: you still have to clear the sample. Nevermind that the original sample may be indistinguishable (which does lead you to ask: if you can't distinguish it, how do you know your song's been sampled?)

One has to ask: just what is the point of such a ruling? I'm sure there's a technical legal opinion that can be weighed - the Court seemed to suggest that if you can't sample the whole thing, you can't sample part of it either (fuzzy logic). If that's the case though - if even a sound from a recording is legal game for copyright - how long before people try to get copyrights on chords? I'd love to see a guitarist try that: register a four-finger minor key chord...and then go out and sue anyone who plays it. Or hell, why not copyright drum patterns? (Question for smarter heads: if I recall, drum loops are not protected by copyright - true?)

Just to step back a bit though, consider the following: as hip-hop's community has largely split itself into the majorest of the majors and the indiest of the indies, there are two classes of producers (generally speaking): those who can afford to sample willy-nilly because they got it like that: Kanye West, Dr. Dre, the Neptunes, etc. Then there are those who sample whatever they like but their records are in such limited supply (20,000 or less) that no one notices/cares - Madlib, Celph Titled, J-Zone, etc. I would think, the people most likely to be affected, are those in between: your DJ Premiers or Salaam Remis. They feel like a dying cadre anyways but much of their work is sample-based but especially in the case of Primo, much of what he does is chop and loop, creating new compositions out of old. He clears most of his samples anyways, but I get the feeling this is going to make things even more expensive since it opens up a range of new potential lawsuits depending on the sample in question.

In any case, one can only hope that Masta P will appeal but since he was sued over a song used in his film rather than a sample he himself is being accused of using, his incentive (especially financial) to appeal is likely not going to be very high...which basically means a new precedent will have been set that's going to strong-arm creative freedom even more. Like I said, I know people have very passionate attitudes around the issue of copyright but while I may not subscribe to the idea of 100% carte blanche sampling, I think given the merits of this particular case, the Court ruled far too narrowly and short-sightedly. But hell, copyright law has needed major reform for about 100 years now - just add this to the list of grievances in support of an overhaul. (By the way, according to a recent New Yorker article I read, the copyright industry accounts for 5% of U.S. GNP. That's bigger than the auto industry. Damn!)