Legal issues surrounding music sampling
Early sampling artists simply used portions of other artists' recordings without permission, but once music incorporating samples began to make significant money, some sampled artists, publishers, and record companies began to take legal action, claiming copyright infringement. Sometimes, after the threat or initiation of a lawsuit, such disputes are settled out of court, often with the sampling artist obtaining a license at considerable cost and making other concessions to appease the aggrieved party; other times, the sampling artist contests the infringement claims, such as by arguing in court that the copyright law does not cover their particular use of the work. The outcome of these court cases, primarily in the United States and the United Kingdom, have shaped common law, defining ways statutory law—which does not directly cover sampling—can be applied to sampling disputes.
Sampling existing (copyrighted) recordings using manipulation with tape recorders goes back to at least 1961, when James Tenney created Collage #1 ("Blue Suede") from samples of Elvis Presley's recording of "Blue Suede Shoes." At the time, artists such as Brion Gysin and William S. Burroughs experimented by manipulating existing works such as radio broadcasts. Gysin's work tended to favor his permutation poems as the vehicle for cut-ups with spliced repetition of the same series of words rearranged in every conceivable pattern, frequently utilizing snippets of speeches or news broadcasts. Burroughs preferred a much more frantic and disorganized sound that would later spawn similar disjointed collage material from modern groups such as Negativland. Burroughs would record, for instance, a radio broadcast about military action, then dub parts of the broadcast likely at random often stuttering and distorting the original work far beyond comprehension.
However, before then, the 1956 novelty hit single "The Flying Saucer", by Buchanan and Goodman, used segments of the original recordings of 18 different chart hits from 1955–56, intertwined with spoken "news" commentary in the style of Orson Welles' "War of the Worlds" radio broadcast, to tell the story of a visit from a flying saucer. After the record was issued, an agreement was reached with music publishing houses for them to take a share of royalties from the records sold. Although his partnership with Buchanan soon ended, Dickie Goodman continued to make similar records through the 1960s and 1970s, one of his biggest hits being "Mr. Jaws" in 1975.
Simon and Garfunkel sampled themselves in using a portion of their song "The Sounds of Silence" in "Save the life of my child" from their 1967 "Bookends" album. The Beatles also used the technique on a number of popular recordings in the mid to late '60s, including "Yellow Submarine", "Revolution 9" and "I Am the Walrus." John Kongos is credited in the Guinness World Records as the first person to sample a song with his single, "He's Gonna Step On You Again". Timothy Leary sampled the Beatles and the Rolling Stones among others on his album You Can Be Anyone This Time Around in 1970.
In the early 1970s, DJ Kool Herc often looped hard funk break beats at block parties in The Bronx. However, sampling did not truly take off in popular music until the early eighties when pioneering hip hop producers, such as Grandmaster Flash, started to produce rap records using sampled breaks rather than live studio bands, which had until then been the norm.
Conventional wisdom would hold that the first popular rap single to feature sampling was "Rapper's Delight" by The Sugarhill Gang on their own independent Sugar Hill Label in 1979. However, instead of 'sampling' the existing record "Good Times" by Chic, Sugar Hill employed a house band, called "Positive Force" to record a copy of "Good Times" which was then rapped over. Doug Wimbish and other session musicians were called upon to play live music on many classic Sugar Hill records. Those sounds are not samples but live musicians.
Earliest examples of this practice include Grandmaster Flash's - "The Adventures of Grandmaster Flash on the Wheels of Steel" (1981) (which was made by recording vinyl manipulation on a pair of turntables and used the "Apache" break by the Incredible Bongo Bong Band amongst other famous breaks), Brother D and the Collective Effort's "How We Gonna Make The Black Nation Rise" (1984) (which sampled the beat and bass line from Cheryl Lynn's 1978 hit "Got to be Real") and UTFO's "Roxanne Roxanne" (1984). Bill Holt's Dreamies (1974) is often cited as one of the earliest examples of sampling in popular music. Later examples of sampling include Big Audio Dynamite and their 1985 album This Is Big Audio Dynamite and the single E=MC² which Mick Jones (formerly of The Clash) sampled snippets of audio from various films including works by Nicolas Roeg which make up the Roeg homage E=MC². The 1981 album by David Byrne and Brian Eno, My Life in the Bush of Ghosts, used sampling extensively for the songs' vocals.
One of the first major legal cases regarding sampling was with UK dance act M|A|R|R|S "Pump Up the Volume". As the record reached the UK top ten, producers Stock Aitken Waterman obtained an injunction against the record due to the unauthorized use of a sample from their hit single "Roadblock". The dispute was settled out of court, with the injunction being lifted in return for an undertaking that overseas releases would not contain the "Roadblock" sample, and the disc went on to top the UK singles chart. The sample in question had been so distorted as to be virtually unrecognizable, and SAW didn't realize their record had been used until they heard co-producer Dave Dorrell mention it in a radio interview.
In 1987, The JAMs released 1987 (What The Fuck Is Going On?). 1987 was produced using many unauthorized samples that plagiarized a wide range of musical works. They were ordered by the Mechanical-Copyright Protection Society to destroy all unsold copies of the album because of the uncleared samples, after a complaint from ABBA. In response, The JAMs disposed of many copies of 1987 in unorthodox, publicized ways. They also released a version titled "1987 (The JAMs 45 Edits)", stripped of all unauthorized samples to leave periods of protracted silence and so little audible content that it was formally classed as a 12-inch single.
2 Live Crew, a hip-hop group familiar with controversy, was often in the spotlight for their 'obscene' and sexually explicit lyrics. They sparked many debates about censorship in the music industry. However, it was their 1989 album As Clean as They Wanna Be (a re-tooling of As Nasty As They Wanna Be) that began the prolonged legal debate over sampling. The album contained a track entitled "Pretty Woman," based on the well-known Roy Orbison song Oh, Pretty Woman. 2 Live Crew's version sampled the guitar, bass, and drums from the original without permission. While the opening lines are the same, the two songs split ways immediately after.
Roy Orbison's version – "Pretty woman, walking down the street/Pretty woman, the kind I'd like to meet."
2 Live Crew's version – "Big hairy woman, all that hair ain't legit,/Cause you look like Cousin Itt."
In addition to this, while the music is identifiable as the Orbison song, there were changes implemented by the group. The new version contained interposed scraper notes, overlays of solos in different keys, and an altered drum beat.
The group was sued by the song's copyright owners Acuff-Rose. They claimed that 2 Live Crew's unauthorized use of the samples devalued the original, and was thus copyright infringement. The group claimed they were protected under fair use. The case of Campbell v. Acuff-Rose Music came to the Supreme Court in 1994.
In reviewing the case, the Supreme Court didn't consider previous rulings in which any commercial use (and economic gain) was considered copyright infringement. Instead they re-evaluated the original frame of copyright as set forth in the Constitution. The opinion that resulted from Emerson v. Davies played a major role in the decision.
"[In] truth, in literature, in science and in art, there are, and can be, few, if any, things, which in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before." Emerson v. Davies,8 F.Cas. 615, 619 (No. 4,436) (CCD Mass. 1845)
Perhaps what played a larger role was the result from the Folsom v. Marsh case:
"look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work." Folsom v. Marsh, 9 F.Cas. 342, 348 (No. 4,901) (CCD Mass. 1841)
The court ruled that any financial gain 2 Live Crew received from their version did not infringe upon Acuff-Rose because the two songs were targeted at very different audiences. 2 Live Crew's use of copyrighted material was protected under the fair use doctrine, as a parody, even though it was released commercially. While the appellate court had determined that the mere nature of the parody made it inherently unfair, the Supreme Court's ruling reversed this, with Justice David Souter writing that the lower court was wrong in determining parody alone to be sufficient for copyright infringement.
Rick James sued MC Hammer for infringement of copyright on the track "U Can't Touch This" (which sampled his 1981 song "Super Freak"), but the suit was settled out of court when Hammer agreed to credit James as co-composer, effectively cutting James in on the millions of dollars the record was earning. Hammer was also sued by Felton Pilate (who had worked with the successful vocal group Con Funk Shun) and by several of his former backers, and faced charges that performance troupe members endured an abusive, militaristic atmosphere.
In 1992, Hammer also admitted in depositions and court documents to getting the idea for the song "Here Comes The Hammer" from a Christian recording artist in Dallas, Texas named Kevin Christian. Christian had filed a 16 million dollar lawsuit against Hammer for copyright infringement for his song entitled "Oh-Oh, You Got The Shing". This fact compounded with witness testimony from both Hammer's and Christian's entourages and other evidence including photos brought about a settlement with Capitol Records in 1994. The terms of the settlement remain sealed. Hammer settled with Christian the following year.
In the early 1990s, Vanilla Ice (Rob Van Winkle) sampled the bassline of the 1981 song "Under Pressure" by Queen and David Bowie for his 1990 single "Ice Ice Baby". Freddie Mercury and David Bowie did not receive credit or royalties for the sample.In a 1990 interview, Rob Van Winkle said the two melodies were slightly different because he had added an additional note. In later interviews, Van Winkle readily admitted he sampled the song and claimed his 1990 statement was a joke; others, however, suggested he had been serious. Van Winkle later paid Mercury and Bowie, who have since been given songwriting credit for the sample.
More dramatically, Biz Markie's album I Need a Haircut was withdrawn in 1992 following a US federal court ruling, that his use of a sample from Gilbert O'Sullivan's "Alone Again (Naturally)" was willful infringement. This case had a powerful effect on the record industry, with record companies becoming very much concerned with the legalities of sampling, and demanding that artists make full declarations of all samples used in their work. On the other hand, the ruling also made it more attractive to artists and record labels to allow others to sample their work, knowing that they would be paid—often handsomely—for their contribution.
A notable case in the early 1990s involved the dispute between the group Negativland and Casey Kasem over the band's use of un-aired vocal snippets from Kasem's radio program American Top 40 on the Negativland single "U2".
Another notable case involved British dance music act Shut Up and Dance. Shut Up and Dance were a fairly successful Breakbeat Hardcore and rave scene outfit who like their contemporaries had liberally used samples in the creation of their music - without clearance from the individuals concerned. Although frowned upon the British music industry usually turned a blind eye to this mainly underground scene, however with rave at its commercial peak in the UK, Shut Up and Dance released the single "Raving I'm Raving" an upbeat breakbeat hardcore record which shot to #2 on the UK Singles Chart in May 1992. At the core of "Raving" were significant samples of Marc Cohn's hit single "Walking in Memphis" with some of the lyrical content changed and sung by Peter Bouncer. Shut Up and Dance hadn't sought clearance from Marc Cohn for the samples they used in "Raving" and Marc Cohn took legal action against Shut Up and Dance for breach of copyright. An out of court settlement was eventually reached between Shut Up and Dance and Cohn which saw "Raving" in its current form banned and the proceeds from the single given to charity. Ironically Shut Up and Dance were later commissioned to produce remixes for Cher's 1995 cover version of "Walking In Memphis" and were allowed by Cohn to use parts from the deleted "Raving I'm Raving" for this remix. Undeterred from earlier sampling issues they then went on to have relatively good success in the UK with a cover of Duran Duran's "Save A Prayer", entitled "Save it til the mourning after" reaching No. 25 in the UK Singles Chart in 1995.
The Shut Up and Dance case had major ramifications on the use of samples in the UK and most artists and record labels now seek clearance for samples they use. However there are still cases which involve UK artists using uncleared samples. In October 1996 The Chemical Brothers released the single Setting Sun inspired by The Beatles' Tomorrow Never Knows and featuring Oasis' Noel Gallagher on vocals - a long admirer of The Beatles' work. Setting Sun hit #1 on the UK Singles Chart on first week of release and the common consensus was The Chemical Brothers had sampled/looped significant parts of Tomorrow Never Knows in the creation of Setting Sun. The three remaining Beatles took legal action against The Chemical Brothers/Virgin Records for copyright infringement, however a musicologist proved The Chemical Brothers had independently created Setting Sun - albeit in a similar vein to Tomorrow Never Knows.
In 1997, The Verve was forced to pay 100% of their royalties from their hit "Bitter Sweet Symphony" for the use of a licensed sample from an orchestral cover version of The Rolling Stones' hit "The Last Time". The Rolling Stones' catalogue is one of the most litigiously protected in the world of popular music—to some extent the case mirrored the legal difficulties encountered by Carter the Unstoppable Sex Machine when they quoted from the song "Ruby Tuesday" in their song "After the Watershed" some years earlier. In both cases, the issue at stake was not the use of the recording, but the use of the song itself—the section from "The Last Time" used by the Verve was not even part of the original composition, but because it derived from a cover version of it, Mick Jagger and Keith Richards were still entitled to royalties and credit on the derivative work. This illustrates an important legal point: even if a sample is used legally, it may open the artist up to other problems.
In the summer of 2001, Mariah Carey released her first single from Glitter entitled "Loverboy" which featured a sample of "Firecracker" by Yellow Magic Orchestra. A month later, Jennifer Lopez released "I'm Real" with the same "Firecracker" sample. Carey quickly discarded it and replaced it with "Candy" by Cameo.
Public Enemy recorded a track entitled "Psycho of Greed" (2002) for their album Revolverlution that contained a continuous looping sample from The Beatles' track "Tomorrow Never Knows". However, the clearance fee demanded by Capitol Records and the surviving Beatles was so high that the group decided to pull the track from the album.
Danger Mouse with the release of The Grey Album in 2004, which is a remix of The Beatles' self-titled album and rapper Jay-Z's The Black Album has been embroiled in a similar situation with the record label EMI issuing cease and desist orders over uncleared Beatles samples.
On March 19, 2006, a judge ordered that sales of The Notorious B.I.G.'s album Ready to Die be halted because the title track sampled a 1972 song by the Ohio Players, "Singing in the Morning", without permission.
On November 20, 2008, electronic band Kraftwerk convinced the German Federal Supreme Court that even the smallest shreds of sounds ("Tonfetzen") are "copyrightable" (e.g. protected), and that sampling a few bars of a drum beat can be an infringement.
Legal issues in practice
The most recent significant copyright case involving sampling held that even sampling three notes could constitute copyright infringement (Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005)). This case was roundly criticized by many in the music industry, including the RIAA.
There has been a second important US case on music sampling involving the Beastie Boys who sampled the sound recording of a flute track by James Newton in their song "Pass the Mic." The Beastie Boys properly obtained a license to use the sound recording but did not clear the use of the song (the composition on which the recording is based including any music and lyrics). In Newton v. Diamond and Others 349 F.3d 591 (9th Cir. 2003) the US Appeals Court held that the use of the looped sample of a flute did not constitute copyright infringement as the core of the song itself had not been used.
A June 2006 case involving Ludacris and Kanye West held that their use of the phrases "like that" and "straight like that" which had been used on an earlier hip-hop track by another artist was not infringing use.
The New Orleans–based company Cash Money Records and former rapper Juvenile were taken to court by local performer DJ Jubilee (signed to Take Fo' Record Label) for using chants from his song titled “Back That Ass Up”. Both artists had used the same chant in each song, but Juvenile won the case because of the title's name change to “Back That Azz Up”, which sold 2 million copies. Because of the name change, Jubilee lacked evidence that Juvenile had stolen from him, and Jubilee could not earn Juvenile's income from his song.
Today, most mainstream acts obtain prior authorization to use samples, a process known as "clearing" (gaining permission to use the sample and, usually, paying an up-front fee and/or a cut of the royalties to the original artist). Independent bands, lacking the funds and legal assistance to clear samples, are at a disadvantage - unless they seek the services of a professional sample replay company or producer.
Recently, a movement—started mainly by Lawrence Lessig—of free culture has prompted many audio works to be licensed under a Creative Commons license that allows for legal sampling of the work provided the resulting work(s) are licensed under the same terms.
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- Chuck Miller, Dickie Goodman: We've Spotted The Shark Again, originally published in Goldmine magazine
- 2Live Crew
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- Superswell.com: "Horror Stories of Sampling"
- Staff reporter (2006-03-18). "Judge halts Notorious B.I.G. album sales". USA Today. Associated Press. Retrieved 2009-05-24. "A judge halted sales of Notorious B.I.G.'s breakthrough 1994 album "Ready to Die" after a jury decided the title song used part of an Ohio Players tune without permission." (Archived by WebCite at http://www.webcitation.org/5h1Fm1b0I)
- http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1504982 Metall Auf Metall (Kraftwerk, et al. v. Moses Pelham, et al.) Decision of the German Federal Supreme Court No. I ZR 112/06 Dated November 20, 2008, at 56 Journal of the Copyright Society 1017 (2009)