Sampling and Copyright

The idea of an inherent right of the author of a written work to protect it from unauthorized copying is, in terms of western history, quite recent indeed. The 1709 "Statute of Anne" was the first legal recognition of the rights of an author. It presented itself as "an act for the encouragement of learning," with the implicit argument that allowing authors the exclusive right to publish their work for a limited term would enable them to earn some reward for their labors, while at the same time eventually allowing their work to be used freely. As with earlier systems of intellectual property, such as "Letters Patent," the Act's term was limited -- 14 years, which could be extended for 14 more, after which the rights of the author expired; it was understood then, as it is now, that authors, like inventors, quite frequently drew from the works of those who have come before them, and that preserving such rights indefinitely would stifle creativity. One thing that has certainly changed since 1709 is the term of copyright; US copyright eventually settled on a period twice as long as the Statute of Anne (28 years, renewable for 28 more years); revisions to this law in the past three decades have extended these 56 years to 80, 100, and even as many as 120 years; the last of these, the "Sonny Bono Copyright Extension Act," went further and even re-instated copyright in works where it had become extinct, freezing the date at which works could enter the public domain at 1923. Many creative artists feel that this law has exercised a stifling effect upon creativity; many of them joined in support of a legal case, Eldred vs. Ashcroft, that challenged these extensions on the basis of the Constitution's reference to copyright law being for a "limited term." The Supreme Court eventually ruled against Eldred, saying in effect that Congress could establish any length of term they wanted, so long as it was not infinite. Could, is of course, not should.

The result has been, ironically, that in the very age when the ability of writers, artists, and musicians to draw upon, alter, and incorporate what the copyright office calls "previously existing works" is at its technical and aesthetic peak, the legal barriers against doing so have been raised to the harshest and longest in the history of copyright protections. This is offset, to a degree, by two factors: 1) "fair use," a doctrine established in the 1977 revision of the law, whereby a certain limited amount -- say, less than 10% of the original "work" -- may be used so long as it is not employed for profit, is used in an educational context, and/or used spontaneously; and 2) simple lack of enforceability. It's quite impossible to police all the billions of web servers, web pages, and personal computers and devices, to ensure that no copyrighted material has been taken or stored; enforcement, as a result, tends to be spotty if dramatic (as in the case of a woman in the midwest who was assessed a fine of 1.5 million dollars because her son had shared 24 music files on his Napster account).

It needs to be noted that copyright also functions very differently depending on the medium in question.  Music is one of the most complex form: there are at least four layers of copyright in a recorded song: 1) The composition itself, and its embodiment in sheet music; 2) The performance of that composition, including the act of interpretation and any variations on the composition; 3) The physical embodiment, if any, of this performance, known as "mechanical" rights; and 4) The right to transmit the performance. All of these, of course, were once separate domains: the sheet-music industry/print, the recording studio, the record company or "label," and radio stations -- but all are now merged indistinctly into a single, complex activity that can all be achieved on a single device, even a smartphone.

In Hip-hop, nearly all original samples were taken from vinyl, and most consisted of a few measures of the "break beat" -- far less than 10% of the original recording.  And yet, by cutting or looping this beat, it could in fact become the rhythm track for an entire recording.  How then to measure that, in terms of originality? (One recent legal formulation of this question -- "fragmented literal similarity" -- muddies the waters rather than clears them).

As things have turned out, neither of the two most significant cases of copyright litigation involving Hip-hop ended up dealing with this question.  In one case, where Biz Markie's half-singing the chorus from Gilbert O'Sullivan's "Alone Again (Naturally)" was represented by his lawyers as being part of the natural creative practice of Hip-hop -- an argument which they lost spectacularly, as the recording was quashed, all copies ordered destroyed, and substantial damages awarded.  In the other case, one which reached the Supreme Court, Luther Campbell and 2 Live Crew were sued for their parodic Hip-hop version of "Pretty Woman," originally made famous by Roy Orbison.  Their lawyers quite wisely avoided the originality issue altogether, arguing that the 2 Live Crew version was a satire, an argument accepted by the "Supremes" on first amendment grounds.  After all, if we're going to use our free speech to parody or mock others, we'll have to be imitative, won't we?  It's too bad Biz's lawyers didn't make the same argument.