1. Sampling in Music

2. Copyright Criminals ?s What are arguments here for and against sampling? What are some good quotes that show how sampling is a valuable art form? Also, what is revolutionary about using turntables/records/samplers to make music? What are some of the values of sampling? How does it disvalue music? How does it create new revenues for artists?

3. Copyright Criminals ?s Cont'd What about the economics of sampling? Who gets paid and who doesn't? What are two landmark cases discussed in the film? 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?) How doest the film show the REMIX and sampling as a bigger evolutionary act and not an activity limited to hip hop artists?

4. Making Copyright Criminals Licensed 2 dozen songs...licenses needed? 400 unlicensed uses 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. PNAM?

5. Valuable Points from CC Turntable as instrument as revolutionary? Sousa? Reintroduces us to our history? Sample for sound, tribute, texture, and because it sounds good Paint v. Photography? Jazz? Irony of technology made by companies? Cottage industry??? Does copyright law, in this context, hinder innovation???

6. How Do We Sample?

7. 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 or made “for hire” Melody and lyrics are protectable as compositions; not RHYTHM!!! Not drums

8. McLeod's Examples Suzanne Vega Clyde Stubblefield George Clinton “Walk This Way”

9. “The Takeover” and Alan Lomax Sampled/Licensed The Doors “Five to One” and KRS-One “Sound of da Police”

10. Pay and Permission A work with a sample is usually a “derivative work” 1) Mechanical royalty fee paid to Record Label (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 rights?) Up front ad hoc fee and running royalties 2) Publishing royalty fee paid to songwriter (Mechanical 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

11. Who Gets Paid? 1) Record labels who own the master recording 2) Recording artists get a % (50%, but contractual): must have “recouped” advance...points=artist royalty rate. 20pts=20% 3) Publishers who own the publishing 4) 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) or DJs)) – If you sample a song with a sample in it, you have to clear/pay those authors also!!! 5) Lawyers, Sample Clearance, PROs/Trade Organizations

12. 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

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

14. Possible Defenses? No License=infringement...$$$ main factor Fair Use: P.N.A.M. 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.

15. VS Grand Upright v. Warner (1991)

16. 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 be punished under 17 USC 506 (criminal, not just civil punishment for sampling)

17. Campbell v. Acuff-Rose (1994) VS

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

19. 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 for sound recordings  Bright-line test=any unlicensed sample is an infringement  $4M from Ready to Die (2006)  Good Copy, Bad Copy (2:43) Good Copy, Bad Copy

20. Sample Troll

21. Newton v. Diamond (2003) 1992, “Pass the Mic” sampled James Newton's “Choir” “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 the composition Ruling: In favor of Beastie Boys Sig: de minimis defense if valid for use of compositions

22. 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 underlying compositions/lyrics

23. 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

24. $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

25. Compulsory Sample License ???