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A Short History of Sample Clearing
In the beginning… When the Sugar Hill Gang released  Rapper’s Delight in 1979 no one had any idea that taking elements from pre-existing songs to
make new ones – in this case the bass line from Chic’s hit at the time,
Good Times, would become a major tool for creating popular music. As Ronin Ro, author of “The Sugar Hill Story," wrote, the label’s decision to interpolate Chic’s bass line was “one of the best decisions ever made
in the [music] industry.” [1] On the other hand, failure to get permission from the publisher of “Good Times” for the use of an important (and clearly
recognizable) element of “Good Times,” had to be one of the worst decisions, at least for the Sugar Hill Gang. “Rapper’s Delight” went platinum, but
all the publishing rights for the song, despite 14 minutes of rapping, went to Nile Rogers and Bernard Edwards, the composers of “Good Times.”
Who knew to ask permission or even whether it would be granted? At the time there was no precedent for it in the industry: uses of snippets of songs
were licensed, but one into another in megamixes, not woven into the fabric of new works, let alone played simultaneously. It required an evolution
in both thinking and business practice.
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| The use of the bass riff from “Good Times” in “Rapper’s Delight” is an example of interpolation, that
is, taking an element of one musical composition and using it to create a different one. An interpolation, if it infringes on a copyright at all,
only infringes on that of the original musical composition. This is distinguished from sampling, which
involves reproducing music, notes or sounds from a pre-existing record, CD or other recording, and using it to create a new master recording. Early
examples of sampling include
Genius Rap by Dr. Jeckyll & Mr. Hyde, from 1981,sampling Tom Tom Club’s
Genius of Love; the West Street Mob’s
Break Dance (Electric Boogie) from 1983, sampling the famous break from
Apache by the Incredible Bongo Band; and
"Lesson 1 – The Payoff Mix," Double
Dee & Steinski’s now-legendary remix of G.L.O.B.E. & Whiz Kid’s “Play That Beat Mr. DJ,” also from 1983. In the case of both “Genius Rap” and
“Break Dance (Electric Boogie)” the sampling was substantial enough to constitute an interpolation of the underlying original musical compositions.
Thus the West Street Mob received no publishing. The writer of "Apache" insisted on 100%, probably after the fact, much like in the case of “Rapper’s
Delight.” By contrast, many of the samples contained on Double Dee & Steinski's remix do not, or probably do not, contain enough to
constitute an interpolation of the underlying musical compositions, for example, "It's the Joint" rapped by Funky 4+1 from That's the Joint; "I'll Tumble," sung by Culture Club from I'll Tumble for You, and
"Good" from Good Times by Chic.
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Another early example of interpolation is the iconic
Planet Rock by Afrika Bambaataa & the Soulsonic
Force, composed using a riff – replayed slightly differently, but still recognizable – from Kraftwerk’s robotic
Trans Europe Express, as well as
other songs, original beats and lyrics. As Bambaataa described it, the song, released in June 1982, came out of his desire to funk up an electronic
sound:
"I wanted it to be the first black electronic group. After Kraftwerk put 'Numbers' out, and I always was into 'Trans Europe Express,' I said I wonder if I can combine them two to make something real funky with a hard bass and beat. So we [producer Arthur Baker and keyboard player John Robie] combined them. But I didn’t want people to think it was just Kraftwerk, so we added a track called 'Super Sperm,' by Captain Sky. The breakdown as the synthesizer’s going up, that’s the 'Super Sperm' beat. And then we added 'The Mexican' by Babe Ruth, another rock group, and we speeded it up. "A lot of people think we sampled Kraftwerk but it’s just not true. John Robie was a bad-ass synthesizer player, so he was just so good in playing stuff, that it sounded like they sampled the record. At that time there was no such thing as sampling. Sampling came more out when we did 'Looking for The Perfect Beat,' that’s when the Emulator machine came out. [2] |
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| "Looking for the Perfect Beat" was released in 1983. Actually, by then DJs were already quite adept at capturing samples via needle drops and scratching,
as the above early sampling examples attest. But it was only in 1984 that the E-mu (Emulator) SP-12 (pictured above
right) was launched. Unlike its precursor,
the Drumulator (said to be the standard-setter for the electronic beat sound of the mid-1980s), it could record eight user-created samples of short
duration (1.19 seconds in the base model; 4.76 seconds in the turbo model). [3] While it was rudimentary, it was also influential.
The real revolution in sampling, however, would await the 1986 release of the Akai S900, which could store up to 32 samples in memory at a greater bit-rate. [4] Stetsasonic used the Akai and pictured it on the cover of their 1987 release, “Talkin’ All That Jazz.” Not to be outdone, E-mu, released the SP-1200 in August 1987. Things were never the same after that.
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| In the year from November 1986 to November 1987 a number of seminal sample-laden hip-hop works were released, among them, the Beastie Boys’ Licensed to Ill, Public Enemy’s Yo! Bum Rush the Show, Boogie Down Productions’ Criminal Minded and Eric B & Rakim’s Paid in Full. 1988 saw the release of Biz Markie’s Goin’ Off, EPMD’s Strictly Business, Public Enemy’s It Takes a Nation of Millions of Hold Us Back, Eric B. & Rakim’s Follow the Leader, Ultramagnetic MC’s Critical Beatdown and the Jungle Brothers’ Straight Out the Jungle. Many of the tracks on these records contained at least several samples. By 1989, however, hip-hop artists were piling them on. De La Soul’s 3 Feet High & Rising, the Beastie Boys’ Paul’s Boutique, 3rd Bass’ The Cactus Album and EPMD’s Unfinished Business are all stellar examples of the experimentalism going on. These were followed in 1990 by such classics as A Tribe Called Quest’s People’s Instinctive Travels and the Paths of Rhythm, Poor Righteous Teachers’ Holy Intellect and Brand Nubian’s One for All. |
  
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| The energy around sampling may have been centered in New York at the time, but rappers from other cities were also earning gold records via sampling and otherwise demonstrating the popularity – and, for the majors, commercial viability – of rap. On the West coast, Ice T’s debut, Rhyme Pays (1987), released on Sire, went gold, as did 1988 releases by N.W.A. (Straight Outta Compton) and Ice T (Power, which featured Curtis Mayfield on the track, "I’m Your Pusher"), and the 1989 release of No One Can Do It Better by The D.O.C. (produced by Dr. Dre). DJ Jazzy Jeff & the Fresh Prince, from Philadelphia, took rap to a new level of cross-over popularity in 1988 with the release of He’s the DJ, I’m the Rapper, a double-vinyl album featuring the song "Parents Just Don’t Understand." |
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| Many records mentioned above released
prior to 1989 were initially released without sample or
interpolation clearances or credits. The practice at many
independents (it was almost exclusively independents who were
releasing rap at that point) was generally to wait and see what
would happen. This was as much a consequence of economics as it was
the uncertainty of whether clearance could be obtained in the first
place and under what conditions. Independents which spent under
$25,000 to produce an album (artist advances and recording costs
combined) were hard-pressed to come up with the money for additional
advances, but as the claims came in,
the labels had to deal with them. Early claims were made by Jimmy
Castor for the use of the shout, "Yo
Leroy," from
The Return of Leroy, Part 1, sampled by the Beastie Boys in
Hold It Now, Hit It on the LP Licensed to Ill;
and by Steve Miller, for the use of
Fly Like An Eagle in
You're a Customer on EPMD’s Strictly Business.
Clearing samples was thus generally based on an assessment of the law as it was at the time in combination with a cost-risk analysis – that is, guessing what the potential cost of not clearing any particular sample might be. Lawyers well knew that there was a line to be drawn between a fair appropriation (whether sampled or interpolated) and infringement, but no one knew exactly where that line would ultimately be drawn. |
  
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While the Jimmy Castor claim was still pending against the Beastie Boys
for Licensed to Ill, lawyers were keeping busy clearing the bulk of the
samples on Paul’s Boutique which was upcoming. (The group’s new label,
Capitol, insisted on it.) Similarly, Tommy Boy delayed the release of De La Soul’s 3 Feet High & Rising to negotiate
clearances on uses of master recordings and musical compositions by artists such as Edwin Birdsong, Steely Dan, Sly & the Family Stone, Lyn Collins, James Brown,
George Clinton, Hall & Oates and the Ohio Players. It goes without saying that the sample clearance budget alone for 3 Feet
High & Rising well exceeded its recording budget. This was true of many releases at the time. The Turtles’ claim against Tommy Boy and
De La Soul for a slowed-down loop of a few bars of the introduction to their song
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| There were actually relatively few artists and songwriters who objected wholesale to the sampling or interpolation of their works: it was nearly always a question of price and some artists who initially objected even succumbed to the financial rewards. (Not surprisingly, prices for sampling and interpolation began to rise.) The major record companies, which were increasingly involved in hip-hop releases, whether on their principal labels or via ] independents whose releases they were distributing, initially approached the issue of clearance cautiously: they had an inherent conflict of interest because many times they owned both the new master recording and the one it sampled, and also a direct stake in standardizing the sample clearance process as much as possible for samples and interpolations coming and going. This was also true, albeit a little less so, for music publishers, among which there were more independents, i.e., companies unaffiliated with the majors’ publishing arms. | |
Despite the hue and cry beginning in the late 80s that sampling was theft, there were no instances of an American release actually being removed from the
market due to an interpolation or a sample until Biz Markie released his 1991 LP I Need a Haircut. Nearly
everyone knows some version of this story, but here’s what really happened:
Just prior to the August release of the album, Biz’s lawyer wrote to Terry O'Sullivan, the brother of songwriter Gilbert O'Sullivan, who handles his brother's affairs in the U.S., seeking to clear Biz's use of a sample fromThere has been some argument over how much the case, Grand Upright v. Warner, meant to sampling, but in fact it meant very little at the legal level. Biz’s track, Alone Again, sampled an important passage of "Alone Again (Naturally)" and used it in a substantial manner: the piano chord progression in the
introduction to the original runs throughout both songs. Moreover, although Biz didn’t sing the melody of the, he most definitely called it up when he
crooned in his inimitable, fractured style, “Alone Again, Naturally.” (Biz’s first occurs 44 seconds in, while O’Sullivan’s is at 50 seconds.) Arguably,
he took the heart of it, something which is only legal, as will be seen further below, if you’re making a parody. If you find Biz Markie inherently funny
and Gilbert O’Sullivan schmaltzy, then the song is a parody. (Robert Christgau says “that Biz's ‘Alone Again’ is "a sad homage from one musical loner to
another," rather than a parody. [6] But Biz’s lawyers never argued parody and so the case must be considered and understood in the context of both the
size of the sampling and interpolation and the defense arguments that were actually made.
First, Warner Bros. admitted that Biz’s song sampled a significant portion of the O’Sullivan recording, thereby also interpolating the composition, but
it tried to claim that Grand Upright’s certificates of copyright and transfers of copyright from previous owners were legally deficient. The court
literally ridiculed this argument. Second, the defendant pleaded that it "should be excused because others in the 'rap music' business [were] also engaged
in illegal activity." To this Judge Duffy responded: "The mere statement of the argument is its own refutation." In the final analysis, the case was
based on the fact that the defendants knew they had to seek permission, they actually tried to seek it, and then they released the record anyway when it
wasn’t forthcoming. It is such an unusual set of facts and circumstances as to be virtually inapplicable to other sample clearance scenarios. What the
case did accomplish was that it made U.S. labels, especially majors, sit up and take notice of the ultimate consequences of not clearing samples before
release, at least where potentially resistant artists or publishers were concerned.
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| The case that had far more to teach, in fact, represented a victory for interpolation, albeit strictly in the context of parody.
Pretty Woman, 2-Live Crew’s
version of Roy Orbison’s hit,
Oh, Pretty Woman was written in 1989. Before its release, the artist’s manager wrote to Orbison’s publisher, Acuff-Rose,
offering not only credit, but ownership and authorship of the parody, as well as a fee. None of this was necessary, since a parody is a separate,
copyrightable work, the royalties for which go to the creator of the parody, not its target. In any case, permission was denied and 2-Live Crew released
the song anyway on “As Clean As They Wanna Be” (and later on 2-Live Crew's
Greatest Hits, vol. 2.) In June 1990, Acuff-Rose sued for copyright infringement.
The District Court in Campbell et al. v. Acuff-Rose [7] held a mini-trial of experts on whether the work was a parody, following which it granted summary
judgment to the defendants on the basis that it was, and as such was protected under Section 107 of the U.S. Copyright Act. (This and other cases
pertaining to parody will be discussed in greater detail in Cases & Commentaries, an upcoming section.) The Sixth Circuit, however, reversed, finding that
while the work was parody in the popular sense, the commercial purpose of 2-Live Crew (i.e., to sell records) "prevents this parody from being a fair use."
The Supreme Court reversed, affirming some important rules. It was the first time in history that the high court spoke on the subject. First, it ruled,
parody is a valid form of criticism which "can provide social benefit." Second, in order to qualify as parody, the work must comment on, criticize or
poke fun at "the substance or style of the original composition… Parody needs to mimic an original to make its point…" Third, while the parodist cannot
engage in "verbatim" copying of the original, s/he can use as much of the original work s/he needs, including the very heart of it (e.g., the chorus to
"Pretty Woman"), in order to create the new work. Fourth, it is the intent of the artist that is most important in deciding whether the work is a parody.
The courts will not undertake to judge the social worth or artistic success of the work. Finally, the intent to sell records (the Sixth Circuit’s reason
for finding the work infringing) is not a bar to a work being protected as parody. [8] The Supreme Court did not, in the end, specifically rule that
Pretty Woman was a parody, but left the final determination in the hands of the District Court, which was to apply the new ruling to the facts. However,
Acuff-Rose had little hope of winning at that point. The Supreme Court's ruling could, of course, have been applied to Biz Markie’s "Alone Again," but it
should be noted that in the Campbell case, interpolation alone, not sampling and interpolation together, was at issue.
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In Europe, the situation was somewhat different, given the relative ease with which preliminary injunctions are granted there. (In the United States,
it is very difficult to enjoin a record from sale at the commencement of a case.) In 1987, the British mechanical copyright society (MCPS) and the British
trade association, the British Phonographic Industry (BPI), joined the production team of Stock Aitken Waterman to obtain an injunction against the dance
act, M/A/R/R/S, which had released "Pump Up the Volume." According to Stock,
According to Wikipedia, Stock Aitken Waterman "didn't realize their record had been used until they heard co-producer Dave Dorrell mention it in a radio interview." [10] This is quite possible, as the sample is miniscule: from the mellifluous "Way-ay-ay-ay-ay-ay" which only appears once in the original at the very beginning, M/A/R/R/S took only fragments, the first of which was dropped in several times, low in the mix, between 3:19 and 3:24 and the second of which, a broken up "Way-ay-ay-ay-ay," is dropped in once, again low in the mix, at 3:32 to 3:35. The entire M/A/R/R/S track, only the bass and drums to which are original, runs 6:32. It is a virtual mash-up that includes samples from James Brown, Trouble Funk, The Bar-Keys, George Kranz, Jimmy Castor Bunch, The Last Poets, Pressure Drop, Tom Brown, Lovebug Starski & the Harlem World Crew and Eazy E., and is built on a sample of Rakim rapping the words "pump up the volume" from "I Know You Got Soul." The case was "settled out of court, with the injunction being lifted in return for an undertaking that overseas releases would not contain the [Stock Aitken & Waterman] sample" and with royalties on the record being given to charity. [11] |
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| Five years later, in 1992, Shut up And Dance suffered a similar injunction for
Raving I’m Raving. The song reached #2 on the UK singles chart when a
claim was made on behalf of Marc Cohn, whose song,
Walking in Memphis, was sampled and interpolated in substantial part in the rave anthem. "Raving
I’m Raving" consists of two sections – the first, a distinctive melodic section with a piano sampled from Cohn’s track and lyrics adapted from Cohn’s
lyrics; the second, a rather generic thumping rave section having nothing to do with the original work. Another single enjoined from the marketplace
at the time was Apotheosis'
O Fortuna, a techno track which generously helped itself to
O
Fortuna (Imperatrix Mundi), the first movement of Carl Orff’s cantata,
Carmina Burana.
The Orff estate obtained injunctions across Europe and filed suit against Radikal Records in New York when the latter released the record stateside.
But no injunction was issued in the U.S. and the case was settled amicably when Radikal agreed simply to take the track off the market.
Both in the United States and Europe, however, lawsuits over big samples in the 1990s were the exception, not the rule. Most samples which fell into
the not-difficult-to-recognize category were being cleared, either before or after release. Even difficult to recognize samples were often cleared,
not because the law necessarily required it, but because companies feared legal claims and litigation was usually more expensive. Still, in many cases
legal or business affairs determined that the risk of serious consequences from the assertion of a later claim, or the risk of there being any claim at all,
was lower than the cost of clearing upfront, and for the most part that guess was correct. The big claims were usually the result of business affairs and
legal not knowing what A&R and production were doing, or simple negligence, or downright cluelessness. A claim by David Bowie and Queen against "Ice
Ice Baby" by Vanilla Ice inspired the single "Pop Goes The Weasel" by 3rd Bass with the taunting lyric, "Ya boosted the record / then you looped it, you
looped it / And now you’re getting sued / Kinda stupid." With rare exception, though, claims were about business, not artistry. For example, the publishing
claim on "Ice Ice Baby" was settled by splitting the rights among David Bowie, Queen and Vanilla Ice. For copyright owners, sampling and interpolation were
newfound sources of income, and sometimes, as in the case of the late Rick James, whose “Superfreak” was the basis for MC Hammer’s “Can’t Touch This,”
renewed attention in the marketplace.
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| There were, of course, artists and songwriters who wouldn’t negotiate clearance at any price or who insisted on receiving one hundred percent of the
publishing rights and tens of thousands of dollars in advance if they agreed to the use at all. Apparently, Public Enemy scrapped "Psycho of Greed" in
2002 after being quoted what they believed was an excessive quote for a clearance of the Beatles’
Tomorrow Never Knows. (They probably should have sampled
The Chemical Brothers’
Setting Sun, a hit song about which there was some controversy in the U.K. after a claim was made that it sampled the same Beatles
song. It didn’t.)
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Inevitably, legal precedent in the courts generated some guidelines, some of which were useful, some dire. Lawyers clearing samples for the Beastie Boys’
1992 release, Check Your Head, listened to the song,
Pass the Mic, and made the crucial decision to clear only the master recording. The sample in
question, from a work entitled
Choir by innovative flautist James Newton, was cleared with ECM, the record company which purchased Newton's master,
together with the right to exploit it. Fortunately, the District Court vindicated the lawyers’ decision, finding that the sampled sequence was commonplace
and thus lacked the "originality" required for a finding of copyright infringement. When the case, Newton v.
Diamond, went to the Ninth Circuit Court of Appeals, that judgment was affirmed. [12]
The guidelines set out by the Ninth Circuit are relatively easy to understand. The sample used by the Beastie Boys consists of the long opening note of
"Choir" (actually three notes: a C-D-flat-C, plus overblowing). That passage, lowered in pitch, opens Pass the Mic and is also used as the third note of
the descending three-note scale that runs throughout the Beastie Boys' song. Preliminarily, it should be noted that only the previously- mentioned
C-D-flat-C were indicated in the score that Newton registered with the U.S. Copyright Office, while the special blowing technique employed by Newton
to get the "multiphonic array of pitches" around the notes was not. This is important because it places his particular performance of the composition
"beyond consideration in [his] claim for infringement of his copyright in the underlying composition." Had Newton included explicit instructions for
playing the notes, the case may well have gone differently.
The court first assessed both the quantitative and qualitative nature of the use. "Quantitatively, the three-note sequence [C-Dflat-C] appears only once
in Newton’s composition," comprising six seconds of a four-and-a-half minute song. "Qualitatiavely, this section…is no more significant than any other
section…[and has not been shown to have] particular significance in the composition as a whole." Again, on the qualitative issue, the court noted that
the particular sequence of notes is commonplace. Even the plaintiff’s expert testified that the three notes was "'a common building block tool' used
over and over again by major composers in the 20th century, particularly the 60s and 70s, just prior to James Newton’s usage." (This does not mean
that all three-note sequences are generic and unprotectable. Consider the opening notes to Beethoven’s "Fifth Symphony." Were the copyrights in that
work still in force today, Beethoven or his heirs would surely be able to prosecute successfully any use of that particular sequence, for example,
the disco treatment given it by Walter Murphy & the Big Apple Band in
A
Fifth of Beethoven.)
Next the court inquired whether the "Pass the Mic" and "Choir" are compositionally similar, either as a whole or at least in those places where the
sequence appears in both the original and the new work, and whether the average audience would recognize the appropriation. Again, the issue was not
whether the average audience would recognize Newton’s sound on the flute. The question was whether it would recognize the C-Dflat-C as coming from
Newton’s composition. As to this element, the court determined that[o]n the undisputed facts of this case, we conclude that an average audience would not discern Newton’s hand as a composer, apart from his talent as a performer, from Beastie Boys' use of the sample. The works are not substantially similar: Beastie Boys' use of the "Choir" composition was de minimis…and the grant of summary judgment was appropriate. [Emphasis added.]Check Your Head was released in 1992 and went double platinum in the U.S., reaching a peak of #10 on the Billboard 200. The album's first single "Pass the Mic," achieved some notoriety in dance clubs. [13] This raises the practical issue as to whether the lawsuit paid off for the parties involved. The case was defended by two prominent entertainment law firms, Loeb & Loeb and Manatt Phelps & Phillips, who represented not just the Beastie Boys, but Capitol Records, Universal PolyGram International Publishing, Brooklyn Dust Music, Janus Films, Sony Music Entertainment Group and other defendants. The complaint was filed on May 9, 2000 and the summary judgment was granted on May 21, 2002. There was ample discovery – depositions and document requests and a mini-trial at which the experts testified and presented evidence. There was an appeal to the Ninth Circuit, including a request for a rehearing. Under such circumstances, it is safe to assume that legal fees well exceeded a quarter of a million dollars. Since the defendants prevailed, it is unlikely that the Beastie Boys were charged any part of the legal fees. But someone had to pay. Total publishing royalties on the song, divided among the various publishers and songwriters, probably did not exceed $150,000 to $200,000, so it is fair to say that the primary benefit of the case lay mainly in future royalties and perhaps the greater benefit of dissuading lawsuits on fragile publishing claims. This latter benefit, however, is attenuated given that every case necessarily relies on the specific facts and circumstances and there are no bright lines. |
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| One federal court of appeals, the Sixth Circuit located in Tennessee, did devise a bright-line test with respect to samples, however, and it is a
disaster for sampling. Bridgeport Music, Inc., Westbound Records, et al. v. Dimension Films [14] was
part of a constellation of actions (500 copyright infringement suits against 800 artists, record companies and publishers) brought in 2001 by
Bridgeport Music Inc. and Westbound Records, the owners, respectively, of the publishing and master recordings of George Clinton (Parliament /
Funkadelic) and the Ohio Players.
The song at issue in the case was N.W.A.’s
100 Miles and Runnin’ (from the EP of the same name), originally released in 1990 and later included
in the sound track of the movie, I Got The Hook Up. The fatal sample was from
Get Off Your Ass and Jam
by Funkadelic. The Funkadelic song opens with a three-note rapid-fire guitar riff, or, as more technically described by the expert, "an
arpeggiated chord – that is, three notes that, if struck together, comprise a chord but instead are played one at a time in very quick succession."
Two seconds of that solo were sampled, looped to extend to 16 beats, and shoved back in the mix. The pitch was also lowered. The sample occurs in
just five places in "100 Miles and Runnin'," at approximately 0:49, 1:52, 2:29, 3:20 and 3:46.
Following the rules set down for analyzing de minimis use (the same ones the 9th Circuit Court of
Appeals applied to the interpolation in the Beastie Boys case noted above), the District Court found that a jury
might reasonably conclude that the way the chord is played, its specific sound and texture, “is original and creative and therefore
entitled to copyright protection,” but that no jury could reasonably find copyright infringement because
the two songs didn’t even sound remotely similar. (The District Court judge must not have heard too many rock guitar solos in his time.)
The Sixth Circuit reversed, however, on September 7, 2004, announcing unironically that it was making new law for both the convenience of the record
industry and to save the courts from case-by-case litigation. Citing no authority, it declared that master recordings were exempt from the same
requirement of "substantial similarity" applicable to all other forms of intellectual property. As will be explained [in Cases & Commentaries], the court propounded a highly questionable, anachronistic interpretation of section 114(b) of the
Copyright Act. That section, enacted in 1971 when Congress hadn't the least inkling of the possibilities of sampling, brought master recordings
under the protection of the Copyright Act for the first time.
Thus, according to the Sixth Circuit, while interpolations of musical compositions must follow the "substantial similarity" test, any sample, no matter how small, no matter how unrecognizable or unimportant, by definition violates copyright
law. The court even went so far as to make the worst of a bad analogy by claiming that sampling is not a taking of intellectual property at all,
but a "physical taking." Any suggestion that such a rigid ruling might stifle creativity fell, like the music, deafly on the court’s ears.
Left to stand, Bridgeport v. Dimension Films endangers thousands of songs which contain tiny or
barely recognizable samples that are uncleared and unclearable (or not clearable on reasonable financial terms). Fortunately, this aspect of the
ruling is not likely to be acted upon by the major record companies as owners of many such sampled masters, as they have much to lose as owners of
sampling masters. The practical effect of the ruling, however, will be felt from independent copyright holders seeking compensation for truly
de minimis uses. The issue gets particularly complicated when the owner of the copyright to the master
and publishing are one and the same. What the Sixth Circuit never imagined – because it had no concept at all of how the music business worked or
what was best for the music industry, or individual artists, or art and creativity – was that an owner would naturally insist on a piece of the
copyright for a de minimis interpolation in order to settle a claim on a de
minimis sample. Well, duh.
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| An equally notorious case in the Sixth Circuit was Bridgeport's lawsuit against Universal Records, UMG Recordings, Bad Boy LLC and Bad Boy
Entertainment for both a sample and an interpolation of the Ohio Players'
Singing in the Morning in
Ready to Die (from the album of the same name) by the
Notorious B.I.G. That case, filed just five months after the decision in Dimension Films was rendered, ended
in judgments of $366,939 in compensatory damages (the profits that were attributable to just that song after deduction of all related costs) to Westbound
Records, $150,000 in statutory damages to Bridgeport, and punitive damages in the amount of $3.5 million. (The 6th Circuit vacated the punitive award and
remanded to the lower court to set a lower penalty. See Bridgeport v. Justin Combs Publishing.) Worse still,
at the end of the trial, on March 19, 2006, the court entered a permanent injunction ordering a halt to sales of the album, Ready to Die, and an impoundment order to recall all copies of it from the marketplace.
This case highlights the risk of going before a jury, which ruled that "Ready to Die" infringed on both the master recording and the publishing copyrights
of "Singing in the Morning." Certainly, taken as a whole, the two songs show no substantial similarity. The interpolation consists of a two-and-a-half
second 3-note segment from a horn line that appears in "Singing in the Morning" at 16 bar intervals, just one time each at 2:32, 2:41, 2:53 and 3:03.
There is nothing distinctive about the three notes compositionally: they are not part of the melody or chorus and are hardly unique in popular music.
It's safe to say that even an expert wouldn't recognize them as belonging to "Singing in the Morning" if the notes weren't actually sampled from the
original and if the fact wasn't pointed out. In "Ready to Die", the sample is used as part of a wordless chorus, twice at 1:05, twice at 1:55, five
times at 2:52 and four times at 3:37. The memorable music from "Ready to Die" is its moody guitar lick, which runs throughout (even during the sampled
horns from "Singing in the Morning" and provides the musical flow to accompany Biggie's lyrical one.
There is no indication in the Sixth Circuit's review of the case as to how the jury was instructed to apply the law – the appeal did not go to the
substantive matter of infringement – but one can be sure that the criteria set out in Newton v. Diamond
were not followed. Newton teaches that there can be no copyright infringement where the similarity is
intermittent and goes only to trivial elements of the copied work. Indeed, Professor Nimmer, author of the multi-volume legal treatise,
Nimmer on Copyright, says, "[if] the similarity is only as to nonessential matters, then a finding
of no substantial similarity should result." Unfortunately, "should" is not "must." Although the Sixth Circuit gave a respectful nod to Newton v. Diamond in the Dimension Films case (distinguishing it
because it involved publishing), here the Sixth Circuit seems to have found it dispensable.
Perhaps even more significant is the fact that this was a case that just didn’t have to happen. The producer of the track originally tried to use Jimi
Hendrix’s song, “Power of Love,” but after clearance was denied, he replaced the sample with the Ohio Players. Clearance wasn’t sought prior to release
of Ready to Die on Sept. 13, 1994, but there was still plenty of time to clear the sample. It was only in
April 1998 that Bridgeport discovered it and began writing letters requesting a share of 25% of the new copyright and asking for an accounting back
to the date of release. According to the evidence, Bridgeport and Westbound were always willing and ready at affordable rates – the defendants admitted
as much – but the defendants simply ignored their requests. [15]
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| Despite the legal developments in the Sixth Circuit, the popularity of sampling and interpolation from pop hits to mash-ups and mix tapes is well established. Any announcement of the death of sampling (and interpolation) is clearly still premature. | |
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Footnotes
[1] Published in the booklet that accompanies the 5-CD set, The Sugar Hill Records Story.
[2] http://www.djhistory.com/interviews/afrika-bambaataa © DJhistory.com Interviewed by Frank Broughton, Hunt’s Point Community Center, Bronx NY, 6.10.98.
[3] http://www.emulatorarchive.com/DrumMachines/SP12Overview/sp12overview.html for the SP-12. For a complete description of the Drumulator, see http://www.emulatorarchive.com/DrumMachines/DrumulatorOverview/drumulatoroverview.html.
[4] For more information on the S900, see http://www.vintagesynth.com/akai/s900.shtml#comments_anchor and http://dic.academic.ru/dic.nsf/enwiki/189549.
[5] http://www.robertchristgau.com/xg/rock/bizmark-92.php.
[6] Id.
[7] Campbell v. Acuff-Rose is the Supreme Court cite because the case came on a reversal by the Sixth Circuit. It was Acuff-Rose, of course, which sued Campbell, not vice versa.
[8] The Supreme Court actually remanded the case to the District Court to satisfy its concern that 2-Live Crew’s parody not limit (i.e., damage) the market for an authorized rap version of “Pretty Woman” – an impossibility in the circumstances. This would not be the first or last time, however, that the courts misunderstood the nature of the music business.
[9] See the magazine, Making Music, Issue 20, November 1987, reproduced conveniently on the stockaitkenwaterman website at http://www.stockaitkenwaterman.com/interv/saw08.htm.
[10] http://en.wikipedia.org/wiki/Sampling_(music)
[11] Id.
[12] Newton v. Diamond, et al., 349 F.3d 591 (9th Cir. 2003).
[13] http://en.wikipedia.org/wiki/Beastie_Boys
[14] 05a0243a.06. 6th Circuit, June 3, 2005.
[15] Bridgeport Music v. Justin Combs Publishing, et al., 07a0425p.06, 6th Circuit Court of Appeals, October 17, 2007.
Double Dee & Steinski white-label jpg courtesy of www.the-soul-vendor.blogspot.com.
"A Short History of Sample Clearing" (c) 2009 Clearance 13'-8", Inc. |
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