Transcript Sampling in Music, Nov. 17

Sampling in Music
Copyright Criminals ?s
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What are arguments here for and against
sampling?
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What are some good quotes that show how
sampling is a valuable art form?
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Also, what is revolutionary about using
turntables/records/samplers to make music?
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What are some of the values of sampling?
How does it disvalue music? How does it
create new revenues for artists?
Copyright Criminals ?s Cont'd
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What about the economics of sampling? Who
gets paid and who doesn't?
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What are two landmark cases discussed in the
film?
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How could rulings in sampling cases in the
early years, as well as general disdain for it as
a practice, be linked to racism? (Could laws
be racist?)
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How doest the film show the REMIX and
sampling as a bigger evolutionary act and not
an activity limited to hip hop artists?
Making Copyright Criminals
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Licensed 2 dozen songs...licenses needed?
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400 unlicensed uses
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E&O Insurance: Indemnify producers from
lawsuits that may arise from the content of a
production, including lawsuits alleging (a)
infringement of copyright, (b) libel or slander,
(c) invasion of privacy, (d) plagiarism or
unauthorized copying of ideas, (e) defamation
or degrading of products (trade libel), and (f)
infringement on title, slogan, or trademark.
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PNAM?
Valuable Points from CC
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Turntable as instrument as revolutionary?
Sousa?
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Reintroduces us to our history?
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Sample for sound, tribute, texture, and
because it sounds good
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Paint v. Photography? Jazz?
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Irony of technology made by companies?
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Cottage industry???
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Does copyright law, in this context, hinder
innovation???
How Do We Sample?
Music Copyright
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Music has two separate copyrights:
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1. Composition (1831)
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2. Sound recording (federal protection, 1972)
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Both these rights are typically transferred to
record labels or publishers (corporations)
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These rights can be transferred through
mergers and acquisitions or made “for hire”
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Melody and lyrics are protectable as
compositions; not RHYTHM!!! Not drums
McLeod's Examples
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Suzanne Vega
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Clyde Stubblefield
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George Clinton
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“Walk This Way”
“The Takeover” and Alan Lomax
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Sampled/Licensed The Doors “Five to One”
and KRS-One “Sound of da Police”
Pay and Permission
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A work with a sample is usually a “derivative
work”
1) Mechanical royalty fee paid to Record Label
(Master Use License)
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Obtain from record label and/or recording artist or
whoever owns the “master” recording copyright
Remix clause in most recording contracts (moral
rights?)
Up front ad hoc fee and running royalties
2) Publishing royalty fee paid to songwriter
(Mechanical License)
Who Gets Paid?
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1) Record labels who own the master
recording
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2) Recording artists get a % (50%, but
contractual): must have “recouped”
advance...points=artist royalty rate.
20pts=20%
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3) Publishers who own the publishing
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4) Songwriters who get publishing royalties
(usually a 50-50 split, or songwriter sees 75%)
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Anybody who is, under law, an “author” gets $
Different Uses?
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Transformation or transformative use: adds to
the original work in a way; a progression or leap
forward that benefits public
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Derivative: translation, adaptation, etc.
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Create new meaning or new expression
Uses an original work w/out building upon it
Transformative uses are likely “fairer” uses in
court because they directly critique/build upon
the sampled work instead of using it verbatim
Interpolation
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Pay compulsory mechanical, perform/record
song, and sample performance
Possible Defenses?
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No License=infringement...$$$ main factor
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Fair Use: P.N.A.M.
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De minimis: copying is so small is doesn't
warrant a fair use analysis
You can't say “I tried to license,” “they didn't
respond,” etc. LICENSE or its infringement
“Lay audience”: Plaintiff must prove members of
an audience of regular people recognize the
original work in the new work.
Grand Upright v. Warner (1991)
VS
Grand Upright Cont'd
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“Everybody else is doing it”
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“We asked and they never responded”
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Rule: In favor of O'Sullivan
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“Thou shall not steal”
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Sig: Unauthorized sampling is infringement;
could be punished under 17 USC 506
(criminal, not just civil punishment for
sampling)
Campbell v. Acuff-Rose (1994)
VS
Campbell Cont'd
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Supreme Court
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Ruling: in favor of 2 Live Crew, parody of
“white bred original”
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Sig: Commercial parody can be fair use
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Sig: Sampling can be fair use
Bridgeport v. Dimension (2005)
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Sample Troll, Catalog Company
"Get a license or do not sample. We
do not see this as stifling creativity
in any significant way."
Sig: Eliminates de minimis for
sound recordings
Bright-line test=any unlicensed
sample is an infringement
$4M from Ready to Die (2006)
Good Copy, Bad Copy (2:43)
Sample Troll
Newton v. Diamond (2003)
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1992, “Pass the Mic”
sampled James Newton's
“Choir”
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Beastie Boys licensed the
sound recording, but not
underlying composition (3
notes / 6 seconds)
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Newtown sold the rights to
his performance of the
composition, but kept rights
to the composition
De Minimis
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“The law does not concern itself with trifles”
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Not enough used to warrant infringement
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A possible defense for defendant
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A possible claim by plaintiff
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Didn't change it enough
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Transformation was minimal
Not a defense for sound recordings anymore;
can work with underlying compositions/lyrics
Lay Audience Test
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Would a group of regular people hear and
know the original in the new containing the
sample?
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Industries use musicologists to determine this
$ampling's Value
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Sampling gave way to a cottage industry:
sample clearance
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Essentially, a third party company the obtains
licenses and permissions on recordings and
publishing
Revenue generated???
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Sample clearance
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Revitalizing careers of old artists
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Establishing, or re-establishing market for
original
Compulsory Sample License
???