Court: Sampling May Violate Copyright Law

[r33k]

By JOHN GEROME, Associated Press Writer

 

NASHVILLE, Tenn. - A federal appeals court ruled Tuesday that rap artists should pay for every musical sample included in their work even minor, unrecognizable snippets of music.

 

Lower courts had already ruled that artists must pay when they sample another artists' work. But it has been legal to use musical snippets a note here, a chord there as long as it wasn't identifiable.

 

The decision by a three-judge panel of the 6th Circuit Court of Appeals in Cincinnati gets rid of that distinction. The court said federal laws aimed at stopping piracy of recordings applies to digital sampling.

 

"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 court said.

 

"Get a license or do not sample. We do not see this as stifling creativity in any significant way."

 

Some observers questioned whether the court's opinion is too restrictive, especially for rap and hip-hop artists who often rhyme over samples of music taken from older recordings.

 

"It seems a little extreme to me," said James Van Hook, dean of Belmont University's Mike Curb College of Entertainment and Music Business. "When something is identifiable, that is the key."

 

The case at issue is one of at least 800 lawsuits filed in Nashville over lifting snippets of music from older recordings for new music.

 

The case centers on the NWA song "100 Miles and Runnin," which samples a three-note guitar riff from "Get Off Your Ass and Jam" by '70s funk-master George Clinton and Funkadelic.

 

In the two-second sample, the guitar pitch has been lowered, and the copied piece was "looped" and extended to 16 beats. The sample appears five times in the new song.

 

NWA's song was included in the 1998 movie "I Got the Hook Up," starring Master P and produced by his movie company, No Limit Films.

 

No Limit Films has argued that the sample was not protected by copyright law. Bridgeport Music and Westbound Records, which claim to own the copyrights for the Funkadelic song, appealed the lower court's summary judgment in favor of No Limit Films.

 

The lower court in 2002 said that the riff in Clinton's song was entitled to copyright protection, but the sampling "did not rise to the level of legally cognizable appropriation."

 

The appeals court disagreed, saying a recording artist who acknowledges sampling may be liable, even when the source of a sample is unrecognizable.

 

Noting that No Limit Films "had not disputed that it digitally sampled a copyrighted sound recording," the appeals court sent the case back to the lower court.

 

Richard Busch, attorney for Westbound Records and Bridgeport Music, said he was pleased with the ruling.

 

Robert Sullivan, attorney for No Limit Films, did not return a phone call to his office.

[RABid]

Interesting, and good. With the abundance of legal Acid loops, and musicians looking for work, there is no need to lift music from a protected recording. I'm sure the director of the film would not appreciate it if someone took a section of his film, changed it to black and white, and then overdubbed the lines and turned it into a commercial.

 

Robert

[Bartolomeo]

Stay tuned. Up next from the U.S. court system: Yamaha and Steinway own the copyright on the noises their pianos make and sampling them is a violation.

 

Come to think of it, recording them is a violation. And public performance for profit, erm, you have to be a Steinway Certified artist. Or being photographed with one, you have to have a contract, no a release. A piano release, that's it. Your agent can get one for you.

 

Grrrr.

 

Bartolomeo.

[Immo]

Originally posted by Michael Erwin:

By JOHN GEROME, Associated Press Writer

 

...Lower courts had already ruled that artists must pay when they sample another artists' work. But it has been legal to use musical snippets a note here, a chord there as long as it wasn't identifiable...

Gotta go. I'm getting a copyright on the dominant chord. While I'm at it, I think I may see if I can get my lawyer to copyright that chord at the beginning of Hard Day's Night, although that might be a bit toughter.

[Jeebus]

Originally posted by bartolomeo:

Stay tuned. Up next from the U.S. court system: Yamaha and Steinway own the copyright on the noises their pianos make and sampling them is a violation.

 

Come to think of it, recording them is a violation. And public performance for profit, erm, you have to be a Steinway Certified artist. Or being photographed with one, you have to have a contract, no a release. A piano release, that's it. Your agent can get one for you.

 

Grrrr.

 

Bartolomeo.

[Immo]

On second thought though, I heard a techno song that used exerpts from Led Zeppelin's "Babe I'm Gonna Leave You", the main excerpt being the "Babe" part of the lyrics looping. It started out sounding so familiar, then I recognized it. And then a minute later it finished the phrase "Baby, baby I'm gonna leave you." I guess who's to say what's recognizable. I recognized that one note before they even borrowed the whole phrase.

[Michelle ggurl]

A finished recording meant to be a piece of art in and of itself (someone's recorded work, comprised of a combination of performances on a combination of instruments, and subsequently enhanced/modified by a unique combination of gear and engineering expertise -- we know this as "mixing," or perhaps "mastering" -- to comprise a UNIQUE sound to ONE record) is not meant to be reduced to a tool (ie, a piano). Isn't there obviously a distinction between this and one tool ... ie, a Steinway? If one were to sample a specific performance of one individual on that Steinway, versus using one Steinway for performance, I think there is a major difference.

 

[over-the-top drama]

To put it simply: I don't care if you sample a Steinway. Sample MY PERFORMANCE of MY SONG (not that you would, but ...) and I will sue your butt if I find out about it ...

[/over-the-top drama]

[Dave Horne]

Originally posted by bartolomeo:

Stay tuned. Up next from the U.S. court system: Yamaha and Steinway own the copyright on the noises their pianos make and sampling them is a violation.

 

Come to think of it, recording them is a violation. And public performance for profit, erm, you have to be a Steinway Certified artist. Or being photographed with one, you have to have a contract, no a release. A piano release, that's it. Your agent can get one for you.

 

Grrrr.

 

Bartolomeo.

You're kidding, right?

[Geoff Grace]

I wonder how the latest rulings on this particular form of musical montage compare to the copyright laws that govern the photo form of montage (a composite picture made by combining several separate pictures). Does anyone here know?

 

Best,

 

Geoff

[Yoozer]

Originally posted by Michael Erwin:

even minor, unrecognizable snippets of music.

Boy, will that be a fun job for older tracks... or for any rompler at all - hey, that Snare03 in DryRoomDrumKit nr 25 sounds just a bit too much like *track, artist*

 

The court said federal laws aimed at stopping piracy of recordings applies to digital sampling.

Piracy means that you don't pay the artist for his whole work. Good, sampling uses only a bit from the whole work, and the recognizable bits get taxed accordingly and rightfully so (you're cashing in on someone else's 'hook').

 

"Get a license or do not sample. We do not see this as stifling creativity in any significant way."

Rather a sad and distorted view of reality. What do they think hiphop is based on?

 

Let's face the facts and see what gets cut off from being used in your music.

 

- no vocoders on original samples anymore

- no filtering either

- no drumkits built from existing loops anymore

- no chord or 3-note melodies anymore even though anyone with a synthesizer could play the same

 

The case at issue is one of at least 800 lawsuits filed in Nashville over lifting snippets of music from older recordings for new music.

 

The case centers on the NWA song "100 Miles and Runnin," which samples a three-note guitar riff from "Get Off Your Ass and Jam" by '70s funk-master George Clinton and Funkadelic.

Wow. 3 whole notes. I mean, you just have 12, so that's at least 25% of the whole musical spectrum, and I'm not even counting it if you transpose! I thought it was mandatory to clear samples before releasing anything, but anyway.

 

In the two-second sample, the guitar pitch has been lowered, and the copied piece was "looped" and extended to 16 beats. The sample appears five times in the new song.

In that case, does it still resemble the original?

 

No Limit Films has argued that the sample was not protected by copyright law.

Well, that's what I mean with clearing.

 

The appeals court disagreed, saying a recording artist who acknowledges sampling may be liable, even when the source of a sample is unrecognizable.

So wait.. if I use a scan of Rembrandt's Nightwatch and Photoshop the hell out of it so you can't recognize it as the Nightwatch anymore.. how are you going to recognize it as the Nightwatch?

 

And who should I pay? Everyone in the Netherlands with the same last name?

Richard Busch, attorney for Westbound Records and Bridgeport Music, said he was pleased with the ruling.

Because he got paid, obviously. This kind of stuff isn't beneficial for anyone; yes, they shouldn't have lied about the source in the first place, but this case might create a precedent for others; until we got people sueing eachother because the waveform of the doorbell sound is too similar to that of that old lady down the block. Obviously, they were the original 'artists'.

[RABid]

Originally posted by Yoozer:

... Piracy means that you don't pay the artist for his whole work. ...

I think you need to leave the word "whole" out for the correct definition. If you only lift a single song from a CD, you have not pay for the "whole" work.

 

And hip hop is not built on sampling other people's work. SOME hip hop just found it easier to sample than to create.

 

Robert

[Mark Zeger]

Isn't there a Korg Triton factory program called "Cruisin' Compton" that was the foundation for Sade's "By Your Side"?

 

If I use that same Triton program in a recording, am I pirating the Sade song?

[Reverend Rhythm]

It seems to me that if they had re-created the riff and sampled that it wouldn't be a sampling question anymore. If it were recognizable it might be a licensing question.

 

I wonder how much the record company would want for a 3 note sample.

[cnegrad]

Rather a sad and distorted view of reality. What do they think hiphop is based on?

Who cares? The point is that you have a whole "genre" that uses theft from others as the basis for their music. If "artists" don't pay for the rights to use the samples, then then hip hop can go ahead and die.

- no vocoders on original samples anymore

- no filtering either

anymore

Nonsense. No one is arguing the legality of processing anything. The whole point is that if a sample is even slightly recognizable, then you better pay for the rights to use it, or you're going to suffer consequences.

- no drumkits built from existing loops anymore

Sure you can; just PAY FOR THE RIGHTS TO USE THEM!

no chord or 3-note melodies anymore even though anyone with a synthesizer could play the same

Ah, but there's the rub: For reasons that are beyond me, these "artists" don't seem to go for sounds that are played by an actual human musician. (They only seem to resort to using human players when appearing on a television show.) Evidentally if they can't use a sample, then the riff isn't worth using. Ironically, if they had used a human musician, the musician could have played something similar in overall feeling to original riff, but altered it just enough to avoid lawsuit.

 

I agree that it should all come down to the recognizability of the sample. (IMHO, simply transposing a lick down a third isn't good enough.) I think the ruling is heavy handed, but also think that these "artists" have brought this upon themselves by trying to get away with not paying for clearance. If you're going to chance not paying for clearance, then you better be prepared to pay damages if you get caught.

[Magpel]

"We do not see this as stifling creativity in any significant way."

 

Disagree! Collage is a legitimate artistic technique with a history that goes far before and beyond hip hop. Mass media has always been a favored source of images and references (and sounds!) for collage artists. The definition of piracy should distinguish the sampling and transformation of media elements from theft. The key word there is tranformation.

 

Well, my dermatologist asked me to give up coffee and I can't think straight, but if you want to go to heart of this issue, I suggest you read up on the travails of the "band" Negativland .

[stoo schultz]

While I'm at it, I think I may see if I can get my lawyer to copyright that chord at the beginning of Hard Day's Night, although that might be a bit toughter.

It's a Dmin7 +11 [endless debate deleted ]

 

You can't copyright the chord, but apparently somebody has a copyright to the sample (was it George playing it on his new 12-string?).

 

I wonder who would have that copyright, is it Michael Jackson?

[Dave Pierce]

Hmmm. This doesn't seem that out of line to me.

 

First of all, while I'm not much of a hip-hop fan, I can see and appreciate the creativity that goes into it. Chopping up samples, loops, and riffs and turning them into a new and different thing is sort of cool. The end result is often infectously dancable, and I can applaud that even if it's not my favorite thing.

 

But hip-hop artists don't need to sample to do it. They can create music from scratch just like the rest of us if they don't want to pay anyone for rights. And if they decide that the best and/or easiest way to get a particular sound is to lift straight from someone else's work, what's wrong with asking them to toss a few pennies to that artist?

 

Works for me.

 

--Dave

[Yoozer]

Originally posted by cnegrad:

Who cares? The point is that you have a whole "genre" that uses theft from others as the basis for their music.

We have to steal and we have to imitate in order to learn, and we give it our own twist to change it. I agree with you that not clearing it first is theft, and that they were wrong in that case.

If "artists" don't pay for the rights to use the samples, then hip hop can go ahead and die.

The money-generating engine that is hip hop will do something about that. It rakes in too much profit to let things slide.

Nonsense. No one is arguing the legality of processing anything. The whole point is that if a sample is even slightly recognizable, then you better pay for the rights to use it, or you're going to suffer consequences.

Can one exactly pin down "slightly"?

If you're going to chance not paying for clearance, then you better be prepared to pay damages if you get caught.

On that I can agree . I just have a bit of a dim view towards the future and how far this can be stretched.

[ELP71]

Originally posted by Rabid:

Interesting, and good. With the abundance of legal Acid loops, and musicians looking for work, there is no need to lift music from a protected recording. I'm sure the director of the film would not appreciate it if someone took a section of his film, changed it to black and white, and then overdubbed the lines and turned it into a commercial.

 

Robert

I think this says it all.

[cnegrad]

Can one exactly pin down "slightly"?

Sure,no problem! IMHO, if you're using a previously copyrighted sample, here's the criteria you should use as to whether or not you should get clearance:

 

If there's even the slightest bit of doubt in your mind that someone out there just might be able to possibly recognize the sample you've lifted, then that's your cue to pay for it.

 

The funny thing about this is that it's so much cheaper to pay for the clearance beforehand. Lawsuits usually involve triple damages (aka treble damages), and extensive legal fees. Doing the right thing beforehand is much better.

[r33k]

Originally posted by cnegrad:

 

IMHO, if you're using a previously copyrighted sample, here's the criteria you should use as to whether or not you should get clearance:

 

If there's even the slightest bit of doubt in your mind that someone out there just might be able to possibly recognize the sample you've lifted, then that's your cue to pay for it.

 

That's not a strong enough standard, according to this latest ruling; even unrecognizable excerpts are considered protected.

[Jeebus]

Originally posted by Mark Zeger:

Isn't there a Korg Triton factory program called "Cruisin' Compton" that was the foundation for Sade's "By Your Side"?

 

If I use that same Triton program in a recording, am I pirating the Sade song?

I'd think not, since by purchasing the Triton you have the legal right to use any stock program or combi however you see fit.

[cnegrad]

That's not a strong enough standard, according to this latest ruling; even unrecognizable excerpts are considered protected.

True, but if no one recognizes that a sample has been stolen they wouldn't be suing, would they?

[Bartolomeo]

I'll attempt a more serious reply now.

 

I think the ruling will, ultimately, be overturned because the U.S. courts have held for some time that some expressions are short enough that they cannot be copyrighted, at least where writing is concerned. A rule of thumb that is frequently cited is that you can't copyright a sentence. In the same light, you can't copyright a scale, or a chord, or a few notes of a melody, in written music. The court has just extended protection to the performance of a subset (a chord) of a work that is not of sufficient length to receive copyright protection itself according to case law. I don't think this will stand.

 

Getting copyright clearance is often difficult or even impossible for many existing works. The original composer or artist may be unwilling to license the material regardless of the price. The rights may belong to people in the middle of a divorce, to heirs who can't agree on anything, or to a corporation who doesn't have any staff or process in place to handle the kind of licensing being requested. For older, lesser known works, it may not be possible to ascertain exactly who does own the rights.

 

In many if not most cases, recording contracts that stipulate royalty agreements don't cover these sorts of uses, so a new agreement has to be put together, and signed by everyone who had a creative role in the original work. So someone has to run down every background singer and sesssion drummer that was involved in a project, to get meaningful clearance.

 

To a certain extent time and money can overcome these roadblocks. That means that well-financed acts can deal with the problems and get clearance. Somebody trying to make a record on a $50,000 budget can't.

 

Now, I'm not a fan of the dance forms that make extensive use of sampling. I'll set that aside. What they are doing is one of the frontiers in music, and they are building upon existing work just as others have in times past, only with different mechanics. They are working with sounds rather than notes. Can they do it without sampling existing recordings? Yes.

 

But what does that accomplish? If the sampling is done in such a way that the original work is no longer identifiable, the net content that they get is (for example) a chord being played on 12 string guitar. Whether they get that by micing a 12 string guitar and having someone play chords on it, or by sampling from a recording, makes no difference to the outcome of their effort, to the value of the sampled recording, or to the overall level of employment in the music industry. At most it will sell a few more 12 string guitars.

 

The gradual extension of copyright protections works to the detriment of most working musicians. Such extentions don't recapture revenue, they just drive people toward public-domain, open license, and made-for-hire sources.

 

And they create one more barrier to the creation of music without corporate backing.

 

Bartolomeo

[Markyboard]

Gotta go. I'm getting a copyright on the dominant chord.

Won't help - I just got the copyright for a sine wave.

[r33k]

Originally posted by cnegrad:

That's not a strong enough standard, according to this latest ruling; even unrecognizable excerpts are considered protected.

True, but if no one recognizes that a sample has been stolen they wouldn't be suing, would they?

Yes, but it still wouldn't be legal. With this ruling, they've created an unenforceable law, in my view.

[Immo]

Originally posted by Yoozer:

Can one exactly pin down "slightly"?

Anyone notice the similarity between the intro to ELP's "From the Beginning" and YES's Roundabout?

 

And I know Roundabout's intro was based on some flute piece the Howe liked.

[Sven Golly]

Originally posted by Markyboard:

Gotta go. I'm getting a copyright on the dominant chord.

Won't help - I just got the copyright for a sine wave.

Wow, just wait for the payments to come rolling in from every TV station that goes to a test pattern overnight!

[DanS]

Originally posted by Yoozer:

QUOTE]We have to steal and we have to imitate in order to learn, and we give it our own twist to change it. [QB]

What kind of bullshit is this?

You want to learn? Buy a book on theory!

NB: I said 'buy', not 'photocopy'

[Byrdman]

Originally posted by Michael Erwin:

Gotta go. I'm getting a copyright on the dominant chord. .

Actually what you need is a patent on the dominant chord. And the way the US patent service is handing out patents like they were parking tickets, this should not be hard to do.