Sampling the circuits: the case for a new comprehensive scheme for determining copyright infringement as a result of music sampling.

• Author: Pelletier, John S.

INTRODUCTION

Music sampling continues to be the linchpin of a variety of musical styles including rap, hip-hop, house, and dance music, and has even become prevalent in rock music. (1) The practice of sampling involves taking pre-existing sound recordings and using portions of those recordings as elements in a new musical composition. (2) The amount of the work sampled can range from taking the entire "hook" or chorus/refrain from a musical composition to smaller elements, such as a riff or even one or two notes or words. (3)

Music sampling, as it pertains to copyright law and copyright licensing, is a real and current issue. As recently as November 3, 2010, the United States copyright office began taking comments, at the direction of congress, as to whether copyright protection should be extended to pre-1972 sound recordings. (4) Among the peripheral issues implicated by this potential extension was how such an extension might affect sampling of pre-1972 recordings. (5) Moreover, one example that perfectly illustrates the current implications of sampling on copyright law is what one commentator calls "the Girl Talk dilemma," referring to the mash-up artist Girl Talk. (6) on November 15, 2010, Girl Talk made available downloads of his album All Day (7) free of charge on the record label Illegal Art. (8) This freely distributed album, which contains a high number of samples--none of which have been licensed--raises serious questions regarding the legality of this release. Upon first listen to the opening track, "Oh No," (9) I easily identified samples of Black Sabbath's "War Pigs," (10) Ludacris' "Move Bitch," (11) Cali Swag District's "Teach Me How to Dougie," (12) Jane's Addiction's "Jane Says," (13) the Ramones' "Blitzkrieg Bop," (14) and Missy Elliot's "Get Ur Freak On," (15) just to name a few. (16) In light of current industry practices, (17) it is hard to imagine how Girl Talk could release such a record without raising questions as to whether his uses of these samples constitutes copyright infringement (18) or fair use. (19) While this is an extreme example of the use of sampling in contemporary music--as one commentator notes, Girl Talk's work adds virtually no original content to accompany the samples of other artists' work (20)--it clearly illustrates the point that copyright infringement by way of music sampling is a current issue.

In its current state, copyright law and judicial interpretation of the same have been relatively hostile to samplers who fail to obtain licenses from the relevant copyright holders of musical compositions or sound recordings (21)--both of which are protected as separate copyrights under Title 17 of the United States Code. (22) Due to this hostility, the licensing and clearing of samples has become a major source of revenue for record companies and music publishers alike. (23) For example, the famous record Paul's Boutique by the Beastie Boys, (24) which was comprised of nearly 95 percent samples, required over $250,000 in licensing fees alone. (25) More recently, Kanye West reportedly came very close to licensing a small sample from Lauryn Hill's MTV Unplugged record for over $150,000. (26) unfortunately, in light of evidence suggesting that the financial viability of record companies has diminished significantly, these licensing agreements will likely continue to become more expensive due to an effort by record companies to generate sufficient revenue to remain viable business organizations. (27) Due to legal uncertainty regarding the contours of what is and what is not actionable infringement, by and large, in order to avoid litigation, artists are encouraged to either license even the smallest samples or refrain from sampling--one of musical artists' most creative tools--altogether. (28)

In light of the aforementioned issues, this Note suggests that in order to make copyright law conform to the constitutional purpose of copyright protection, promote creativity, and provide clarity for musical artists, a more robust paradigm for determining infringement as a result of sampling is needed. Part I of this Note provides a discussion of the history and industry practices regarding music sampling, describing how sampling works, the technology involved, and why sampling is valuable to musical artists. Part II lays out the general law that affects sampling. Part Ill examines the legal difficulties resulting from the way copyright law treats music sampling and the impact of this treatment on creativity. Finally, Part IV suggests a comprehensive scheme to balance the competing interests of samplers and copyright holders by creating realistic and appropriate protections for copyright holders, while still accommodating the creativity encouraged by the "Copyright and Patent Clause" of the Constitution and embracing technology-based creativity involving the use of sampling.

1. SAMPLING: THE RECORDING INDUSTRY, TECHNOLOGY, AND WHY MUSICIANS SAMPLE

   1. History

      At the outset, one might inquire, why sample? To understand why sampling is such a prevalent practice, it is necessary to briefly examine sampling's historical roots. Sampling is a derivative of deejaying. (29) Deejays, of course, wanted to keep dancers on the dance floor; as such, they maintained a practice of playing only the pieces of songs that were popular with dancers and omitting the remainder of the song. (30) In particular, the use of drumbeats, otherwise known as "breaks," was particularly prevalent. (31)

      In the 1980s, inventors, in an attempt to increase the capabilities of synthesizers, created the digital sampler--a device that "allows the musician to record sounds from other instruments, nature, or even nonmusical sources, and transpose and play them chromatically on a standard piano or organ keyboard." (32) Eventually, as digital samplers became more sophisticated, (33) deejays began using digital samplers for unintended purposes, sampling not only drums and drumbeats from records, but sampling melodies and bass lines, among other things. (34) once these elements were sampled, the digital sampler could be played like an instrument. This implementation provided a much more sophisticated manner of producing music that was similar to the methodology deejays had previously produced using turntables. (35) Furthermore, these new digital samplers allowed users to edit samples--whether they were presets or recorded material--and "sequence" various samples to make entire musical arrangements. (36)

      Of course, it was not a far stretch for deejay-turned-producer types to incorporate this methodology into hip-hop music produced for mass distribution by record companies. (37) Eventually, sample-based music moved from being a more efficient means of replicating live performances by deejays to a sophisticated form of studio-based music, often producing music that would be quite difficult to create by means of live instrumentation or in an improvisational setting such as deejaying at a party or club. (38) For example, at its height in 1980--often referred to as the golden age of hip-hop (39)--artists such as Public Enemy and the Bomb Squad began producing hip-hop records, often characterized as "sound collages," which contained massive numbers of small samples and would have been nearly impossible to create with turntables alone. (40) of course, at the time, these artists were generally unaware of the legal consequences of their actions. (41)

      While it is unnecessary (and beyond the scope of this Note) to chronicle more recent developments in the art of sampling, it is sufficient to say that sampling has continued to be a prevalent practice and powerful tool in modern musical composition. However, in 1991, following the Southern District of New York's holding in Grand Upright Music, Ltd. v. Warner Bros. Records (42) that unlicensed use of a sample in a hip-hop recording constituted copyright infringement, copyright infringement by way of music sampling became a complication artists needed to consider. (43) While this may have reduced the quantity of samples included in newer music--due to the fact that using large quantities of samples has become economically unfeasible (44)--sampling is still prevalent and relevant in current musical culture, as clearly shown by Girl Talk's most recent offering. (45)

   2. Making Music Using Samples: Recording, Technology, and Sampling

      As alluded to above, music technology is particularly important when addressing issues of music sampling, primarily because use of this technology supplies the means by which sampling is used as a creative tool in the creation of musical works. There are two basic forms of technology used for recording--analog and digital--both of which are viable methods of sampling. (46) Analog recording is traditionally accomplished via two primary mediums: magnetic tape and vinyl. (47) Digital recordings are created by sampling the amplitude of a particular waveform at a particular frequency, which is then converted into binary code. (48) These amplitudes are then reassembled to recreate the waveform of the original signal. (49) Eventually, these formats are converted into digital media, such as a CD or an MP3, for mass consumption.

      Today, most recordings are digital and are created using a tool called Digital Audio Workstations (DAWs). (50) DAWs are powerful recording and non-linear editing tools as they allow samplers to digitally import works they want to sample and easily edit, sequence, and mix those samples with other samples or newly recorded audio. (51) Another popular means of sampling--perhaps even more popular in particular genres, such as hip-hop--is the use of digital samplers such as the Akai MPC 2000 and related models, particularly in the context of hip-hop and contemporary R & B production. (52)

      The last topic of relevance to digital sampling in the recording industry is signal processing. Signal processing consists of processes that "manipulate a sound...