Unauthorized Digital Sampling in the Changing Music Landscape

• Publication year: 2014
• Citation: Vol. 22 No. 1

Unauthorized Digital Sampling in the Changing Music Landscape

Ryan Lloyd

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Lloyd: Unauthorized Digital Sampling in the Changing Music Landscape

NOTES

UNAUTHORIZED DIGITAL SAMPLING IN THE CHANGING MUSIC LANDSCAPE

Ryan Lloyd^*

TABLE OF CONTENTS

I. INTRODUCTION..........................................................................................144

II. BACKGROUND.............................................................................................147

A. COPYRIGHT LAW AND MUSIC............................................................147
B. THE RISE OF DIGITAL SAMPLING AFTER THE MP3........................ 153
C. COPYRIGHT LAW AND THE DIGITAL SAMPLE................................. 154
D. DIGITAL SAMPLING IN CASE LAW..................................................... 155

1. Unauthorized Digital Samples as Per Se Infringement......................155
2. Rejection of Per Se Infringement Pertaining to Unauthorized Digital Sampling..............................................................................159

III. ANALYSIS......................................................................................................163

A. THE DEFICIENCIES OF THE SUBSTANTIAL SIMILARITY TEST, FRAGMENTED LITERAL SIMILARITY TEST, AND PER SE INFRINGEMENT STANDARD FOR DIGITAL SAMPLING.................. 163
B. THE NEGATIVE EFFECTS OF THE LAW ON THE AMATEUR ARTIST....................................................................................................166
C. THE SOLUTION: FAIR USE AND COMPULSORY LICENSING........... 170

1. Unauthorized Digital Sample in a Noncommercially Released Track...............................................................................................171
2. Unauthorized Digital Sample in a Noncommercially Released Track that Garners Profit for an Amateur Artist.............................172
3. Unauthorized Digital Sample in a Commercially Released Track.....173

IV. CONCLUSION...............................................................................................175

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I. Introduction

The internet age has inspired much debate over the proper legal status of digital music sampling.¹ The role and power of online music media has only skyrocketed since the Ninth Circuit's decision regarding Napster in 2001, and further technological developments in digital music have made the creation and distribution of music online even more effortless than it was at the beginning of the twenty-first century.² This progress has fueled a problem few could have foreseen in 2001: the rise of digital sampling in free, self-released music that is not released through any record company or publisher, but is uploaded online by an amateur, unsigned artist.³

Historically, especially before the advent of MP3s and file sharing, these free self-released compilations of music were not likely to face legal challenge for the borrowed samples of other pre-established artists used within the tracks. Such music was released non-commercially by a person attempting to gain local clout and prominence, in the hopes that it would eventually lead to public performances and the opportunity to be seen and heard by talent scouts. These compilations sampling different commercially released tracks, or free "mixtapes," were distributed physically from street corners, clubs, or other public locations. With this distribution method, there was little chance that any of the tracks would receive massive mainstream attention or draw the ear of those artists being sampled on the tracks.

However, this is no longer the case. Unlike music's past changes in format and medium (i.e., cassette to CD), the MP3 and internet have "exposed consumers to more music than ever before,"⁴ and have also provided a method by which an amateur artist can release musical creations to an immediate audience at very little or no cost through such outlets as Bandcamp, Soundcloud, YouTube, and personal websites. Soundcloud, a website in which users can upload and share their tracks online, has become a particularly prominent forum and tool for the amateur artist; as of April 2013, the site has over thirty-eight million users, all of whom have the opportunity to interact,

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share and provide feedback on any uploaded songs.⁵ Though not all of those users upload their musical creations, the number is indicative of a changing musical landscape that is far more populist in nature.⁶ Sites such as these represent an overarching, continuing movement in which artists and listeners themselves control the art form.

In addition to increasing the sheer volume of music available to the masses and giving amateur artists a more readily available platform, this new environment also has had a profound effect on the sound and nature of the music that emerged. Though digital sampling was considered an "indispensable element [of] the music industry" even in 1996,⁷ the ability to create, share, and listen to music on a computer or laptop has made the digital sample a ubiquitous presence in the industry.⁸ The digital music world has encouraged a greater melding of genres and cultures into newly created music, allowing digital sampling in particular to merge diverse sounds into something at once unique and familiar. Sampling a known riff, beat, chorus or hook in a song articulates universal emotions while still creating something wholly new, much like how finding a common ground through a shared language allows a speaker to connect with a greater number of people.⁹

Another essential factor contributing to the increase of digital sampling in music is that sampling better serves new consumer tastes brought on by mobilization. Talking Heads frontman David Byrne argues in his book, How Music Works, that the sound of music is influenced significantly by both the venue in which it is heard as well as the technology available at the time.¹⁰ For example, music today is played frequently in cars and in portable MP3 players

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such as the iPod, encouraging more bass-heavy, beat-driven music.¹¹ The private listening experience in a car or through the iPod and headphones is more conducive to music consisting of "interlocking and layered beats" than the venues and outlets of the past.¹² These new features of music showcase the rising appeal of genres such as hip-hop, the beat-focused orchestrations of which also allow for greater separation between the recorded sound and live musician. Additionally, technology and digital sampling can also mask the deficiencies of the musician, allowing even amateur musicians to not only utilize samples of official tracks, but avoid any sloppiness or egregious errors in the recordings.¹³

Although artists self-releasing these uploads seek hype and popularity over monetary gain, the unsigned artist may incidentally gain profits from uploading and posting their music to Bandcamp, YouTube, or other personally created sites. This can be accomplished by directly charging listeners for a direct download of their music, or through an advertising system in which the artist accrues revenue for each visitor to his site and each time a link or page is clicked. The music industry has even tapped into these online fora to scout potential talent, and multiple recording deals have been garnered from nothing more than a digital upload to one of these sites. Yet the industry's acceptance and utilization of this do-it-yourself, independent culture also effectuates new conflict and issues. Most importantly, it increases the possibility that an unauthorized sample within a particular amateur composition will come to the attention of the rights holder or creator of the sampled original.

Consequently, the number of legal disputes over unauthorized samples has surged since the early '90s.¹⁴ One recent noteworthy conflict involves up-and-coming artist Frank Ocean and the classic rock group The Eagles. Ocean initiated the conflict by utilizing a sample of The Eagles' "Hotel California" as part of a free, downloadable mixtape. The Eagles regarded the sample as

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copyright infringement and are considering legal action,¹⁵ even though Ocean released the song at a time when he had made little, if any, profit from his music career, was not signed to any record company, and garnered no profit from the specific song. Cases similar to this one are increasing; however courts have yet to establish a uniform standard to reconcile these new, unique circumstances with copyright law, overall leaving trial courts and parties in the dark as to how to resolve them.

For example, there are two possible ways to resolve this inconsistency and grant better legal certainty to courts and parties wrestling with these recent technology and industry changes. First, digital sampling in music should fall under the doctrine of fair use. Second, if non-commercially released music incidentally garners profits, is eventually released commercially, or is publicly performed for profit, the artist should be subject to a compulsory licensing fee for any previously unauthorized sample within those works, achieved by a Congressional amendment to section 115 of the Copyright Act. With this policy, United States copyright law will both maintain the incentive to create new, original works and effectively promote the burgeoning, expansive online music culture and its continued innovation and public enrichment. Altogether, this dual solution will ease enforcement and account for the technological shifts in the music industry by avoiding both speculative remedies and the stifling of current music culture's mixing and sampling.

Part II of this Note will outline the general background of copyright law, as well as the legal history of digital sampling that has led to this litigious state of affairs. Next, Part III will examine the current problems in case law regarding unauthorized digital sampling, and will elaborate on this dual solution that better functions in the present...