Try a Little Tenderness - Reviewing Sampling in English Law - Shastikk Kumaran

'And one other thing… What’s the deal with you break-record cats putting out all the original records that we sample from and snitching by puttin’ us on the back of it sayin we used stuff?

You *know* how that go!

Stop doing that, y’all are violatin', straight up and down!'


  • DJ Premier on the outro of 'Royalty' by Gang Starr



In Gang Starr’s Royalty, DJ Premier expresses his anger against those who publish the records he has sampled (samples are interpolations, loops or other parts of a song that are taken and reproduced in collage form in another compilation) from, claiming that these publishers are exposing him and his collaborators to expensive lawsuits. This fear is not unwarranted - there is a long tradition of rappers and artists in general being sued for sampling other artists - most notably in Grand Upright Music inc v Warner Bros Records, where pioneering hip hop artist Biz Markie was sued for his sampling a loop from artist Gilbert O’Sullivan, where the judge commenced the judgement with the words 'Thou shalt not steal' and found against Biz Markie. Sampling has long been considered by the courts to be a form of copyright infringement, even when in little amounts, and thus has been severely discouraged within hip hop and other industries (due to the need to go through expensive sampling procedures), reducing innovation and changing the very nature of music from being heavily interpolated from samples in the 1980s to a often much more raw or synthesized sound by the late 1990s (although, it is worth noting that the sampling tradition has survived and even thrived to an extent with artists like J Dilla).


This particular predicament arises due to the nature of copyright infringement law around the world. While copyright laws and protections are vital in protecting musicians legally from having their works stolen and represented, it has also been a huge bottleneck and obstacle to sample-based innovation in music. The current position of English law is relatively unsettled as it pertains to the use of samples, and no cases appear to deal directly with the issue. However, it appears unlikely from the plain meaning of the statutory text and court rulings in jurisdictions with harmonised copyright law that English law will adopt a favourable position towards the use of samples. These existing laws discourage innovation and boundary-breaking in music, and reduce access to music production like that which allowed genres like hip hop to exist, having developed organically from marginalised communities in the United States.


As noted earlier - typically, sampling refers to the practice of interpolating, looping or otherwise using pieces taken from other compositions in a new composition - one that is musically distinct from the older composition, either through someone singing over the sampled music, the interpolation and mixing of several pieces or the sampled piece being ‘sliced’ in a way (see J Dilla’s 'Don’t Cry' for an example) that makes the original sample an entirely different song. It is founded in the 'art of collage' and often contemporary songs mix multiple samples to create an entirely new composition. This is an art of its own, perhaps surprisingly - see, for instance, the Avalanches, who created their album Since I Left You, exclusively using samples; they ended up using 3,500 samples in the creation of the album. Sampling is of course still done in a simpler way today as well, with sampled loops being especially popular for freestyle-style rap songs.


Sampling originated in the mid 20th century with French composer Pierre Schaeffer, who developed a method of splicing, looping and manipulating sounds from a variety of real-life sources. It was not largely relevant in most popular music of the start to the mid-20th century, but grew significantly in popularity after the nascent growth of hip hop in New York City. A tradition in early hip hop was that DJs would often loop ‘breaks’ in music, creating a beat that rappers would then rap over - a tradition that persists even today in ‘freestyle’ culture. Contrary to popular belief, however - one of the first major, successful albums to prominently use sampling wasn’t actually a rap album - but rather it was Stevie Wonder’s Journey Through The Secret Life of Plants.


It became particularly prominent in hip hop, especially amongst artists who could not afford the instrumentation that (at the time) was often exclusive to big labels. Sampling machines (starting with the Fairlight) became popular and sampling itself became a form of art - while earlier sampled music often used simple loops (see Biz Markie’s Just a Friend, which interpolates a loop off Freddie Scott’s You Got What I Need). However, as sampling became more prominent, it became a source of legal contention a lot more legally contentious - especially as labels and controllers of rights began to realise it would be possible to assert that they should receive damages for the unauthorised use of their music. Sampling was particularly prominent in the late 1980s, with bands like De La Soul and Public Enemy building entire landmark albums on samples.


The first prominent lawsuit against an artist for sampling, was, as aforementioned, the lawsuit against Biz Markie for sampling Gilbert O’Sullivan in 1991, which was lost by the artist Biz Markie at the time. This contributed to a number of further lawsuits against artists - for instance, legendary rap group A Tribe Called Quest’s frontman Phife Dawg claims that due to their having failed to clear their Lou Reed sample in their most famous song ‘Can I Kick It?’, they lost all their profits from the song, seemingly in perpetuity, as Lou Reed would have sued them otherwise. These lawsuits have generally been located in the U.S., which has a globally dominant entertainment industry and is also where many of the rights holders are located. As such, most of the prominent lawsuits in the field of sampling are from American law, although due to the harmonisation of international copyright law, they can generally be applied on a principle basis to English law, although it is of course unclear if those positions will be recognised in an identical way by the English courts.


There are generally, in the English law, two types of exceptions against claims of copyright infringement, where some part of the original work has been used, that are relevant to our work on sampling. The first is linked to the de minimis rule - that a work that constituted a minuscule portion of another work ought not to be liable for copyright infringement given the non-substantial nature of the reproduction. In summary, the de minimis principle is clear that the law will not bother itself with mere trifles. The second exception is for certain classes of work, such as research and parodies, that are covered by ‘fair use’ exceptions, which allow for some forms of copyright infringement. The law in the U.K. and the E.U. differ from American law in this regard - American law provides a more general exception for fair dealings and leaves more of the interpretation to the judiciary, while European law provides a more limited and exhaustive list of items that are, like parodies are, able to escape copyright infringement claims a defence of fair use.


Unfortunately, the English law has not yet dealt with any substantive, reported matters with relation to music sampling. Therefore, American law provides the best basis for understanding the legal position on sampling, although there has been a recent case in the German courts that has also clarified E.U. law on the matter. This however serves as principled guidance rather than actual precedent due to Britain’s exit from the European Union. The most interesting developments in the American courts are the exception for parodies as well as the disestablishment/reestablishment of the de minimis defence for sampling in American law, and these developments can provide guidance for future English law developments.


The first interesting case that was decided in the U.S. under American jurisdiction was Campbell v Acuff-Rose Music Inc., which established that certain songs, which could be considered as parodies of other songs, were exempt from copyright infringement claims as parodies were considered ‘fair uses’ under American law, even if commercialised. It was decided within the context of a rap song published by 2 Live Crew - 'Pretty Woman', parodying Roy Orbison’s earlier song, 'Oh, Pretty Woman'. This was however differentiated by the courts from other songs that were not caricatures or parodies, which were then liable for copyright infringement claims. This became such a prominent problem that some artists, like Swiss Beatz and DJ Premier in the 1990s, sampled such obscure songs that fans to this day have still struggled to find some of the original samples used. For instance, the sample for Nas’ Nas Is Like was only discovered in the last decade.


The second interesting case Bridgeport Music Inc. v Dimension Films effectively removed the de minimis exception in the U.S. - as the courts decided to ignore the length or substantiveness of the content copied, and imposed a requirement that a license was obtained to sample regardless of the magnitude or effect of the sample. However this case was effectively overturned in 2016 through the case VMG Salsoul v Ciccone, which reallowed the de minimis exception to copyright infringement for a sample where only a horn hit was used. However, it does not necessarily mean the U.S. has established a more general rule that is permissive towards small amounts of sampling - after all, a horn hit is so minuscule it might not be able to even be recognisable as a sample. A better representation of the current rule in the U.S. might be that the sample would constitute copyright infringement if it was recognisable as a part of another song.


In the German courts, the Advocate General was asked to give a declaratory opinion on the legality of sampling in the case Pelham GmbH v Hutter. While the declaratory opinion was long and comprehensive, it was generally disapproving of sampling being made legal due to the existing legislative framework in the E.U. countries. This was specifically answered at [AG51] of the declaratory opinion, which clarified that due to the nature of European law, which specifies a list of exemptions and is not general like American law, sampling could not be allowed by simple virtue that there was nothing in the list of exemptions that would allow 'a general exception permitting the use of works for the purposes of creating a new work'.


It is worth considering what the English courts would likely decide if presented with an appropriate case on sampling - say if a U.K. publisher sues a U.K. hip hop artist for copyright infringement. Decades of harmonisation, starting from treaties like the Berne Convention, the Rome Convention and the Agreement on Trade-Related Aspects on Intellectual Property Rights (TRIPS), have caused the general agreement of English and American/European law on matters of intellectual property law. This is seen, for example, in Section 30A of the Copyright, Designs and Patents Act 1988, which allows for the creation of parodies, with no requirement that the work be either commercial or non-commercial in nature. This mirrors the U.S. position. The statutory text, also like in American law, appears to require substantive copying or unauthorised use to be considered as copyright infringement.


The current law on sampling is restrictive and harmful to poorer artists. Poorer artists cannot afford to pay tens of thousands of dollars to sample other artists’ music. While some services (such as TrackLib) do exist that provide sampling at a slightly lower charge, these provide a relatively limited set of tracks that artists can sample, effectively still leaving artists unable to innovate in the way hip hop artists did back in the 1980s without fear of being sued for millions should they succeed. Sampling is an established process - and is known to not be the same as genuine copyright infringement. Support for legalising sampling appears to be high amongst certain groups of music producers, even if their own music is sampled.


This article proposes an approach of mandatory licensing - that songs using samples have a duty to mandatorily license them, and pay a certain fixed percentage (or some lower percentage, if an agreement can be reached with the rights holders) of the profits or revenue earned to the content creator. If no content creator can be found (countries could create a registrable database), creators need not be liable unless a genuine claim is made by the publisher. This approach eliminates much of the actual difficulties around sampling - the difficulty in contacting the content holders, the cost of clearance for popular samples and the legal costs involved. Of course, this prevents moral objectors from preventing others from using their songs in samples. One wonders, however, whether that should be a relevant consideration - certainly, in research, no one scientist can morally object to their work being cited. Why should an artist be able to morally object to their work being cited? The fair claim is that artists may want to avoid people with extremist or bigoted views from co-opting their work, and in effect platform - artists may not want to give artists making racist or sexist art, for example, the right to their music. Thus, the above framework could be improved by including a mandatory waiting time when any objection could be raised, but only on moral grounds rather than economic grounds. The exact legal framework surrounding such an idea would have to depend on the political realities of each country, especially their laws on speech and copyright infringement.


The rigid laws surrounding sampling have not liberalised sufficiently to acknowledge the true contribution of sampling to music. Content owners ought not to be able to, on a wanton basis, suppress access to existing music when it could be used as part of compositions that might push the field of music further forward, much like scientists develop on each others’ work. Countries should adapt their sampling laws and liberalise them - to protect the music creator and allow for further innovation in the field. In the words of Otis Redding, who was sampled on Kanye West and Jay Z’s Otis, perhaps they should “try a little tenderness”.



 

J Ewald, & P.G. Oliver, 'UK Copyright and the Limits of Music Sampling', (2017)


T.G. Schumacher, This is a sampling sport': 1 digital sampling, rap music and the law in cultural production, 1995, Media, Culture & Society, 17(2), 253-273.


Pelham GmbH v Hutter [2019] E.C.D.R. 3


Grand Upright Music, Ltd v. Warner Bros. Records Inc. 780 F. Supp. 182 (S.D.N.Y. 1991)


VMG Salsoul v Ciccone 824 F.3d 871 (9th Cir. 2016)


Bridgeport Music, Inc. v. Dimension Films 410 F.3d 792 (6th Cir. 2005)


Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569 (1994)


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