SAMPLING AS A SECONDARY ORALITY PRACTICE AND COPYRIGHT'S TECHNOLOGICAL BIASES.

Author:Chen, Shun-Ling
 
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Table of Contents I. Introduction 208 II. The Exclusion and Inclusion of Sound Reproduction in US Copyright Law 213 A. Copyright, and the Technologization of Word 213 B. Mechanical Reproduction and the Technologizing of the Sound 215 C. Sound Recording as "Writing?" Copyright's Technological Biases 222 III. Sampling, Secondary Orality and Copyright 232 A. Sampling as a Secondary Orality Practice 233 B. Sampling, Authorship and Aesthetic in the Remix Culture 235 C. Why Focus on Copyright's Technological Biases? 241 IV. Sampling on Trial 245 A. Fair Use Requires Criticisms Must Be Textual and Make a Direct Comment 246 B. De minimis Defense for Sound Recordings? 252 C. More Room for Making Tributes--Digital Samplers as Quoting Machines 257 D. Is a Sampling-friendly Fair Use Doctrine Possible? 260 V. Conclusion: Secondary Orality, Remix Culture and a Disclaimer 264 I. Introduction

Sampling--the practice of taking small pieces from an existing recording of musical works or other sounds, adjusting their tempo and pitch, and remixing them--first appeared in the 1960s as part of DJs' innovative and skilled ways of using analog technologies. (1) In the 1980s, with the introduction of digital samplers, sampling gained more popularity as a method of music production. (2) Using sampling as a technique, musicians build on existing sounds, reinterpret them, engage in a conversation with fellow musicians of various generations, and develop motifs that can be very different from any of the originals they sample. (3)

Although sampling requires much imagination and skilled execution, it has often been dismissed as an act of stealing, or a sign of low originality. (4) For a long time, the only Grammy Awards category allowing songs with prominent samples was the "best rap song." (5) But sampling has become such a common method in music production and composition that recently the Recording Academy changed this rule. (6) Starting in 2015, songs with prominent samples can compete in other categories, including "Song of the Year." (7) Using sampling as a method of songwriting is finally no longer a reason to be refused the highest honor in the industry. (8) Bill Freimuth, vice president of the Recording Academy, when explaining this transition, commented that sampling is an old and common practice, and the rules should reflect the current music landscape. (9) Freimuth suggested that even great composers such as Bach and Bartok "sampled" Vivaldi and Hungarian folk music: "[U]sing samples was just part of the craft, it wasn't really cheating in any way, and it wasn't a lesser form of songwriting." (10)

Nevertheless, the U.S. courts have not been very receptive to sampling. (11) In 2005, the Sixth Circuit ruled that while musicians may use a de minimis defense for sampling a musical composition, there is no de minimis defense available for sampling sound recordings. (12) In 2009, the Sixth Circuit ruled that paying homage by sampling is not a fair use. (13) In both cases, the disputed samples were works of George Clinton. (14) He has disapproved the copyright holder of his recordings, Bridgeport Music Inc., for going after sampling musicians aggressively, commenting: "The DNA of hip hop has been hijacked, leaving many artists across generations in needless hardship." (15)

Following Tricia Rose, professor of Africana Studies and a cultural critic, this article sees sampling as a practice in secondary orality--orality mediated by technologies that allow one to store, retrieve and distribute sound. (16) "Secondary orality" comes from Walter J. Ong, a philosopher and cultural historian, who analyzed the "technologizing of word"--the transition from a primary oral society to a chirographic/typographic society--and its effects on our human consciousness and modes of thought, including how we relate ourselves to our expressed ideas, the concept of authorship and ownership over these expressions. (17) Copyright law, as a product of the chirographic/typographic society, (18) used to protect only "writings of an author." (19) In the late nineteenth century, the technologizing of sounds raised questions about the ownership of both literal and non-literal expressions. (20) Although copyright law now uses the abstract term "original works" to include a variety of activities and their expressive results, its interpretation can be affected by judges' preoccupied perceptions of cultural productions that are more closely associated with the technology of writing. (21) The technological biases against non-literal forms of expressions in copyright earlier prevented the courts from understanding sound recording copyright and later from making room for sampling as a secondary orality practice. (22)

Part II of this article first discusses Ong's thesis about how the technologizing of words--including orality, literary and secondary orality--affect the sense of ownership of expressions, and then gives an overview of the exclusion and inclusion of recorded sound in copyright in the United States. (23) Part II then moves on to look at the mechanical reproduction of sounds, which began in the last quarter of the nineteenth century, as the technologizing of "sound." (24) After the phonograph was invented in 1877, it took exactly a century for phonorecords to become a full-flung copyright subject matter in the 1976 U.S. Copyright Act. (25) Nevertheless, the courts may still have a technological bias against non-literal forms of expression until this day. (26) Part III explains why Rose considers sampling a secondary orality practice, how the practice of sampling has affected the process of music production, aesthetics, and authorship, and why this article chooses to tackles the issue of sampling from the angle of copyright's technological biases. (27) Part IV reviews major cases involving hip hop and sampling, and provides some suggestions on how copyright law can better accommodate sampling as a secondary orality practice. (28) Part V concludes the article by noting how sampling has been conceived positively in hip hop in the U.S. but cautions that the politics can be very different in another context, e.g. in the sampling of indigenous sounds in world beat and ethnic pop. (29)

  1. The Exclusion and Inclusion of Sound Reproduction in US Copyright Law

    1. Copyright, and the Technologization of Word

      The birth of copyright law was closely related to printing technologies and book trade in the sixteenth and seventeenth century. (30) Unsurprisingly, the scope of copyright law initially was rather limited, covering only the printed books and maps, and only later expanded to cover subject matter enabled by newer technologies, such as sound recordings and motion pictures. (31)

      Although Walter J. Ong did not directly address the origin of copyright, he discussed how the technologization of word in literary society changed human consciousness, and introduced a sense of ownership of written symbols. (32) Unlike primary oral traditions, (33) in which words are potent, power-driven by the speaker in the living present, people in chirographic or typographic society see words as "things," which are alienated from the speaker and objectified in visual space, (34) and thus can be exploited for the management of knowledge. (35)

      According to Ong, the technologization of words also affects our understanding of "originality," "creativity," and the ownership of an expression. (36) In primary orality, using formulaic patterns was economic because it made recalling easier. (37) While persons in the primary oral culture could "entertain some sense of proprietary rights to a poem," such sense is rare and weak due to the shared lore, formulaic patterns and themes. (38) In a typographic culture, Ong argued that a printed book is seen as an object that "contains" information, with title page as its label, (39) and "created a new sense of private ownership of word." (40) Furthermore, print "encouraged a sense of closure" (41)--a work is "set off from other words" and the artificial boundary gave the impression that the work is "a unit in itself." (42) Thus, print culture "gave birth to the romantic notion of 'originality' and 'creativity,' ... seeing [the work's] origins and meanings as independent of outside influence, at least ideally." (43)

      Printing, and later computerization, continued and reinforced this particular transformation initiated by writing. (44) Electronic devices, such as telephone, radio and television, marked a larger shift, introducing what Ong coins as "secondary orality": a technology-mediated orality which largely relies on the writing and printing culture. (45) Ong did not discuss much whether the deployment of electronic devices and the resurrected orality may affect how we relate ourselves with expressed ideas, including the concept of authorship and ownership over stored words and sounds. (46) Nevertheless, he noted generally that those who practice the art of secondary orality are not devoid of the mindset of literary people. (47) The new form of orality is "more deliberate and self-conscious," and even the spontaneity in secondary orality is carefully planned. (48) This article does not attempt to develop a full discussion of how the transition to secondary orality affects the human psyche--picking up what Ong left off is too daunting a project for it to achieve. (49) Rather, this article borrows concepts from Ong to discuss how the copyright system responded to the objectification and materiality of "sounds," resulting in the many misfits between the copyright system and orality, and the recurring failures to understand sampling as a secondary orality practice. (50)

    2. Mechanical Reproduction and the Technologizing of the Sound

      The pronounced purpose of copyright law in the United States is to promote the advances of science and useful arts by encouraging the production and the dissemination of information. (51) Hence, one important issue about...

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