1. Sampling in Music

2. How Do We Sample?

3. 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

4. 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

5. 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 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!!!

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

7. 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

8. 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

9. 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.

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

11. Grand Upright v. Warner (1991)VS

12. 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)

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

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

15. 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

16. Sample Troll

17. 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

18. 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

19. 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

20. $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

21. Compulsory Sample License
???