Sampling in Music

How Do We Sample?

Music Copyright Music has two separate copyrights: 1. Composition (1831) 2. Sound recording (federal protection, 1972) Both these rights are typically transferred to record labels or publishers (corporations) These rights can be transferred through mergers and acquisitions Melody and lyrics are protectable as compositions; not RHYTHM!!! Not drums

Pay and Permission A work with a sample is usually a derivative work Master use license Obtain from record label and/or recording artist or whoever owns the “master” recording copyright Remix clause in most recording contracts (moral?) Up front ad hoc fee and running royalties Mechanical license (compulsory license) Obtain from publisher/composer/songwriter They collect a % of publishing royalties (25%-100%) on new work; running royalty: called “mechanicals”, 9.1 cents/copy

Who Gets Paid? Record labels who own the master recording Recording artists get a % (50%, but contractual): must have “recouped” advance...points=royalty rate. 20pts=20% Publishers who own the publishing Songwriters who get publishing royalties (usually a 50-50 split, or songwriter sees 75%) Anybody who is, under law, an “author” gets $ Non-authors who contribute don't see any money (i.e. session musicians: Clyde Stubblefield) If you sample a song with a sample in it, you have to clear/pay those authors also!!!

McLeod Suzanne Vega Clyde Stubblefield George Clinton “Walk This Way” “The Takeover” and Alan Lomax

PROs and Trade Organizations RIAA: protect IP, lobby, research, certification for recording industry Big 3 MPAA: protect IP, lobby, research, film rating for film for Big 6 studios ASCAP: collect performance license fees; royalties BMI: collect performance license fees; royalties SESAC: collect performance license fees; royalties SoundExchange: PRO for performance and sound recordings for digital performances Sample Clearance services

Different Uses? Transformation or transformative use: adds to the original work in a way; a progression or leap forward that benefits public Create new meaning or new expression Derivative: translation, adaptation, etc. 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

Defenses? Fair Use: P&C, Nature, Qual/Quant, Harm 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”: would members of an audience of regular people recognize the original work in the new work.

Interpolation Pay compulsory mechanical, perform/record song, and sample performance

Grand Upright v. Warner (1991) VS

Grand Upright Cont'd “Everybody else is doing it” “We asked and they never responded” Rule: In favor of O'Sullivan “Thou shall not steal” Sig: Unauthorized sampling is infringement; could punish under 17 USC 506 (criminal, not just civil)

Campbell v. Acuff-Rose (1994) VS

Campbell Cont'd Supreme Court Ruling: in favor of 2 Live Crew, parody of “white bred original” Sig: Commercial parody can be fair use

Bridgeport v. Dimension (2005) 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 Bright-line test=any unlicensed sample is an infringement $4M from Ready to Die (2006) Good Copy, Bad Copy

Sample Troll

Newton v. Diamond (2003) 1992, “Pass the Mic” sampled James Newton's “Choir” Beastie Boys licensed the sound recording, but not underlying composition (3 notes / 6 seconds) Newtown sold the rights to his performance of the composition, but kept rights to composition Ruling: In favor of Beastie Boys Sig: de minimis defense if valid for use of compositions

De Minimis “The law does not concern itself with trifles” Not enough used to warrant infringement A possible defense for defendant A possible claim by plaintiff Didn't change it enough Transformation was minimal Not a defense for sound recordings anymore; can work with compositions

Lay Audience Test Would a group of regular people hear and know the original in the new containing the sample? Industries use musicologists to determine this

$ampling's Value Sampling gave way to a cottage industry: sample clearance Essentially, a third party company the obtains licenses and permissions on recordings and publishing Revenue generated??? Sample clearance Revitalizing careers of old artists Establishing, or re-establishing market for original

Compulsory Sample License ???