The First Amendment, Free Expression, Copyrights and Fair Use…

I. Copyright – the right belonging to the creator of an intellectual property to control the copying, distributing, performing, displaying, and adapting of the work A. To determine whether copyrights have been violated, the following factors are considered: 1) The purpose and character of the use, including whether such use is a commercial nature or is for nonprofit educational purposes 2) The nature of the copyright work 3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole 4) The effect of the use upon the potential market for or value of the copyrighted work

II. Parody A. Humorous imitation of an original work designed to make fun of it B. Legally protected under free expression

III. Music Sampling and Parody A. 1990: In a similar fashion to MC Hammer's sampling "Superfreak," Vanilla Ice samples the most identifiable riffs from David Bowie and Queen's song "Under Pressure" for his only hit "Ice Ice Baby". Unlike MC Hammer, Vanilla Ice doesn't bother to license -- or even credit -- the song. The case never goes to trial, although rumor has it the copyright holders of "Under Pressure" threatened suit and settled out of court with Vanilla Ice for an undisclosed sum.

B. 1991: Grand Upright Music vs. Warner Bros. concerns a song by Biz Markie called "Alone Again," which samples Gilbert O'Sullivan's 1972 hit "Alone Again (Naturally)." 1) First sampling case to be settled in court. 2) Sets the standard of viewing unlicensed sampling as a crime. Judge Kevin T. Duffy lashes out at Biz Markie, beginning his opinion by quoting the seventh commandment, "Thou shalt not steal." and refers the case to the US Attorney's Office for consideration of criminal charges. 3) That case law sets the standard of viewing unlicensed sampling as a crime. To legally sample a song a performer must obtain permission from the copyright holder of the sound recording (usually the record company), and the copyright holder of the composition (usually the song publisher, sometimes the original artist, but often also the record company).

C. 1994: Campbell vs. Acuff-Rose Music (the 2 Live Crew/Roy Orbison case) attempts to set a standard of fair use within digital sampling, but that argument is ultimately rejected by the Supreme Court. 1) Court agrees that parody is protected fair use, but rules that parody should be looked upon in a very strict sense. 2) To date, no court has ruled in favor of digital sampling as fair use.

D. 1997: British rock band The Verve releases "Bitter Sweet Symphony," which incorporates an orchestral instrumental version of the Rolling Stones' classic "The Last Time," from the 1960s by the Stones' producer at the time, Andrew Oldham. 1) While the band credits the Stones, it is at first denied permission to use the clip. 2) When the album is released, onetime Stones manager Allan Klein, who owns the copyright to the song, demands (and receives) 100 percent of the publishing royalties for "Bitter Sweet Symphony."