News & Cues: Digital Sampling — Art or Infringement?

by Koka Tarini Siddhartha

We live in a world filled with music created from a variety of instruments, human beings and often seemingly disconnected noises, which might sound cacophonic to some and harmonious to others There’s the ‘authentic’ way of making music by bringing together a bunch of musicians to record a piece of music or a song, while an increasingly popular aspect of music production since the 1980s has been the process of digital sampling. Owing to the rampancy of sampling, we are going look into its legality and its position in the music industry today.

What is sampling?

Sampling, as a compositional technique, is essentially recording or digitally copying portions from existing sound recordings and integrating them into new musical works. A sample is practically often as short as a few seconds of a drum sequence from the chorus or a verse of a song (although one could of course find longer samples in use as well).

As is often the case with these things, there is one group that views sampling merely as copy-pasting, whereas another group emphasises that the process of reusing sound recordings requires an ear for the right sounds and the musical skill to incorporate them into a new work.

Is the digital sampling of music legal?

This is a question that has haunted the industry for the past few decades. The 1980s were the golden age of sampling — most musicians, record labels and lawyers completely disregarded hip-hop music and sampling as non-issues and fads that would die as quickly as they had entered the industry.

Oh, how wrong they were! There was no stopping hip-hop once it made its mark. Audiences were gobsmacked by the music, and the number of sampled sound recordings grew exponentially. As this number soared, so did the number of lawsuits. Several suits were filed by major record labels outraged by the sampling of their music, claiming it to be outright copyright infringement.

Looking at unlicensed digital sampling from a legal angle, copyright holders — namely the record labels and publishers — insist that it is infringement, and that the reuse of even a small portion of a copyrighted recording must be licensed. On the other hand, the makers of sampled music advocate such music to be art protected by the fair use doctrine.

What do the courts say?

The landmark case on digital sampling was Bridgeport Music Inc. v. Dimension Films (2005) where the Sixth Circuit of the US Court of Appeals declared, “Get a license or do not sample.” Although this sufficiently cautioned artists considering sampling sound recordings, it by no means stopped the trend.

However, this decision did imply that every portion of a song, even if less than a second in duration, would have to be licensed by the original copyright holder for use in a new work. Copyright holders were thus vested with the power to decide what could be sampled, how much could be sampled, and even the cost of licensing any given portion of a song. In essence, they could decide whether or not a sample of their sound recording could be reused.

Furthermore, licensing deals were far from being standard. In some cases, deals were made for a flat fee or one-time payment; while in others, depending on the success of the original song or sampling artist, there was significant fluctuation in the license fee.

Doesn’t all this seem a bit old-fashioned?

Thankfully, with the growth of technology and the evolution of music, judges have shown substantial progress in their analysis of cases. For starters, take the highest constitutional court in Germany — in May 2016, it ruled that a hip-hop artist could sample a two-second beat from a band’s track and not be liable for copyright infringement (Kraftwerk v. Pelham).

Additionally, the court also stated that the rights of copyright owners had to be balanced with the interests of the public and the promotion of artistic freedom. It was decided that when the sampled portion was so short that a layman would not be able to recognise it, or if the sampling had no obvious adverse impact on the copyright owner, such use should be allowed.

Even courts in the United States have shown significant progress in their decision-making with respect to digital sampling. In June 2016, the Ninth Circuit ruled that Madonna’s song Vogue did not commit infringement even though it contained a snippet from another artist’s song, since the sample lasted less than a second (0.23 seconds), which the general public could not have recognised (VMG SalSoul v. Ciccone). This decision was also based on the de-minimis rule, as per which, if the portion alleged to have been infringed is negligible, the case is not actionable in a court of law.

Should sampling be allowed?

These recent decisions are definitely a step towards favouring the sampling of music but does this imply that sampling is legal? Will it still be regarded as infringement or is there a ray of hope that the majority will accept sampling as art? These are questions that will take more than a case or two to be answered conclusively.

Let’s look at this from the perspective of whether musicians would like their work to be sampled. Musicians who are not self-produced do not have any rights over their sound recordings. They usually sign a contract with the record label which in turn determines the purposes for which the sound recording can be licensed; this includes whether or not the sampling of a song should be allowed.

Musicians are the products and creators of art. There are quite a few musicians who would be more than happy to allow sampling of their work, but all they really seek is prior consent, maybe attribution and in certain cases a nominal fee for such use. Then why is there so much trouble pertaining to the sampling of music?

The answer is simple. It’s the sample clearance system which makes everyone’s life miserable as a bandicoot. As per copyright law governing music sampling, almost every second of the work would have to be licensed, since a song incorporating samples would often have digital samples from several songs within it. If a sampled song has fifty snippets, the artist has to get a hundred licenses — fifty from the record labels (owners of sound recordings) and fifty from the publishers (owners of the lyrics and music composition)! More on this here.

The mere thought of obtaining these licenses, some of which may not even be granted, repels artists from the licensing system. They would rather infringe on the copyrighted work and retain creative freedom in sampling.

It is evident that sampling is art, but the clearance process required to legally sample music is time-consuming and overly complicated, more often than not inadvertently encouraging copyright infringement. Copyright law must evolve with the times. There is dire need for a licensing system that balances the interests of the copyright owner and the sampling artist.

A suggested alternative to sampling is to have the artist independently recreate a recording to use as (s)he pleases. Since the artist would not, in his case, be sampling the sound recording, all (s)he would then have to do is obtain permission from the publisher to use the music composition — half the trouble when compared to what following the established system would entail. Then again, this system could see opposition as well. Until a licensing system that harmoniously balances the interests of both parties is created, the legality and identity of sampled music will continue to be a grey area.

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