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Digital sampling is the practice of taking a portion of a previous work to reuse it in a new work. For the most part, the term is applied to music, so that one would sample a previous recording for use in a new recording. However, it can also apply to other media such as photographs, where a portion of one photograph is reused in a new digital image. In essence, it's the equivalent of quoting a passage of text, albeit in non-textual media.

Sampling involves four essential steps: digitization; computer analysis; modification; and reconstitution. In music, this is a digital recording, computer analysis; modification; and playback (Passmore, 1998). Most often, playback is mixing. Mixing reconstitutes a variety of samples from a variety of sources in a new arrangement that may bear no relation to the source works.

Sampling and mixing are unique to digital media. Unlike an analog copy of a musical recording, which is always degraded in some way from the original (i.e. with the addition of noise like pops, clicks, and white noise), a digital sample of the song will be a perfect, with perfect fidelity. This can only be done with a digitized version of the source work. Further, while it is possible to rearrange pieces of material using analog techniques, such as Burroughs' Cut-up (Burroughs, Corso, Sinclair, 1960), mixing takes on a whole new level of ease with digital media. First, the ubiquitous cut & paste makes it trivial to take a sample (cut) and rearranged it with others (paste). Second, mixing may employ complex techniques, like digitally filtering and otherwise distorting the sample. One might also make many copies of the sample throughout the work to create complex arrangements.

Digital sampling music originated in the 1960's with the Jamaican musical movement known as dub (Sanjek, 1992). Jamaican disk jockeys produced live discotheque performances using mobile sound systems. They would improvise lyrics over a background score mixed from previously recorded works of any number of other recording artists.

While in the 60s and 70s, rap music was a PerformanceArt, played solely live at parties, in 1979 two records were released which appropriated Chic's then very popular and very recognizable disco hit, Good Times as the backing track (Marcus, 1992). By wholly appropriating and repurposing previously recorded material, they revolutionized rap forever. Previously, DJs simply played the records without alteration at information gatherings while MCs rapped over them. Quoting Afrika Bambatta, a Bronx DJ turned rap artist (Marcus, 1992, p. 770):

"I used to play the weirdest stuff at a party. . . . I would throw a commercial [into the mix] to cool themout, and then I would play 'Honky Tonk Woman' by the Rolling Stones and just keep the beat going. I'd play something frmo metal rock records like Grand Funk Railroad. 'Inside Looking Out' is just the bass and drumming . . . rrrmmmmmmm . . . and everybody starts freaking out."

Informal mixing presented no copyright problems since it was a non-commercial medium. However, once rap albums started being produced and sold, they began looking for their own copyright protection. This led to the question, is sampling legal? Legally speaking, sampling is a special form of the RightToDerive. For the most part, it is either covered by FairUse or paid for by complex license negotiations. The question then becomes, what is FairUse?

Schumacher (1995) summarizes the legal review literature to date in the mid-90s, which for the most part came down against digital sampling, viewing it as outright theft from live musicians and otherwise "authentic" musical creators. After all, they argue, the perfect copy of a digital sample is an overt admission of similarity to the source work since it the actual sound that is being appropriated. Schumacher argues against that. He points out that for the most part, samplers often filter, distort, scratch, or otherwise manipulate the sound so that it is no longer the actual sound. Arguments that the sampler made an illegal copy of the source work first, before manipulating it, fall short. After all, that was done privately. In light of the landmark ruling, Sony Corp. of America v. Universal City Studios, Inc. (1984), which declared legal home recordings of television shows, it seems reasonable to conclude that copies made for personal use should be legal.

Marcus (1995) tells us that sampling infringes only if all or any substantial portion of the actual sounds that go to make up a copyrighted recording are reproduced. What constitutes a substantial portion is not clear (Wilson, 2001). Under fair use exemptions, digital samples that were small (e.g. three seconds out of three minutes) or unrecognizable remained uninfringing. In particular, samples that were non-melodic, obscure, manipulated beyond recognition, or too short to be noticed would make detection of infringement very difficult (PracticalObscurity).

One argument often put forward is that digital samples are so small as to be fair use (Kaplicer, 2000). Known as the de minimis defense, this takes a rather quantitative view of fair use. A sample that is small relative to the size of the source work, say a few notes or three seconds out of three minutes, would be considered fair use. This approach is disingenious, however, since it does not take into account the relative weight that portion has to the overall work. If the samples formed the "heart" of the derivative work, they may not be exempted (Campbell vs. Rose-Acuff Music, 1994).

Further, neither a quantitative measurement (three seconds out of three minutes) or a qualitative measurement (not the "heart") of a sampling account for the frequency the sample is used in the work. In the case of looped samples, Wilson (2001) argues that looping a three second drum groove throughout an entire song might be a substantial use of that sample in the derived work, no matter how short it was in the source work, and thus it may be infringing.

Another argument puts forth that since imitations are not protected by CopyrightLaw in the United States (Marcus, 1992), and that copyright only protects originality, if sampling by its very nature is immitative and duplicative, then samples are not copyrightable. Then perhaps mixes of those samples are not protected either. However, the United States Federal Copyright Act of 1976 distinguishes between musical compositions (e.g. sheet music) and sound recordings (e.g. CDs). Each recording of a musical performance is individually copyrighted as a distinct work. It may be the case that the samples themselves were not copyrightable as distinct sound recordings, it stands to reason that the arrangement and composition of the samples that form the mix are original works, and thus it stands to reason that the mixes should be copyrightable. They definitely can show "true creativity" and "true genius", as the case of the GreyAlbum illustrates.

In Canada, on the other hand, originality does not require being novel (i.e. "true genius"). In the recent case of CCH Canadian Ltd. vs. The Law Society of Upper Canada (2004) it was held that in Canada one need only exercise skill and judgment in making a work to gain copyright protection. Sampling is harder than one might think. One requires a recording engineer to sample properly, and no recording engineer can find employment today without knowing how to sample. To quote one,

"I don't know if you've ever tried to make a sample, but making one is a real pain in the ass. Everybody thinks, oh, sample, oh, I just play a note and that's it. It's a lot harder than that, because of the vagueries of the machine once you get it in and once you get it out." (Jones as qtd. in Schumacher, 1995, p. 261)

If coupled with the usual manipulation that happens to a sample, such as filtering, distorting, or scratching it, making a digital sample certainly exhibits skill. As the ruling had it in Ringgold v. Black Entertainment Television, Inc. (1997), it is disingenious to claim that the selection of the sample (or in this case, the poster) was insignificant, as the sampler presumably spent many hours listening to music looking for the perfect sound (Wilson, 2001). Thus, selecting a sample indicates sufficient judgment as well.

Looking at the explosion in legal complexities that surround sampling, many fear that sampling technology will disrupt CopyrightLaw beyond repair. Some have concluded sampling must be made completely illegal. Only through prosecuting samplers "will the true creativity be spawned and true genius discovered." (Houle as qtd. by Schumacher, 1995, p. 259) But the ideal of "genius" reflects a cult of authorship, which is a primarily European mythology. African Americans, for whom digital sampling is part of their culture, have a different point of view.

A new criticism

After Bleistein v. Donaldson Lithographing Company (1903), copyright law in the United States had changed forever. For the first time, a corporation was ascribed authorship of a work. The cult of the genius author had been shattered in law. As Esposito (2003) argues, corporate creation of content is more the norm now than individual authorship.

The nature of content has also changed significantly due to technology. As Benjamin (1968) argues, mass production and duplication changes art from a performance to an object of commercialism. Instead of a single art object like a painting or a statute, "By making many reproductions it substitutes a plurality of copies for a unique existence. And in permitting the reproduction to meet the beholder or listener in his own particular situation, it reactivates the object reproduced." (Benjamin, 1968; p. 221) That is, the copy becomes directly reusable by its audience. Andy Warhol parodied this with his Campbell soup cans, ruthlessly appropriating an image from pop culture and churning out duplications as his own art.

More than that, the very nature of music has changed from the acoustic performance, to one keyed into the technology of studio recording necessary to create what is now the music industry. To quote Benjamin again,

That is to say, in the studio the mechanical equipment has penetrated so deeply into reality that its pure aspect freed from the foreign substance of equipment is the result of a special procedure . . . The equipment-free aspect of reality here has become the height of artifice; the sight of immediate reality has become an orchid in the land of technology. (Benjamin, 1968, p. 233)

If the music has taken on a quality from the technology itself, one can hardly blame the digital artist for maximizing the possibilities of digitally encoded music. The music is there, already encoded in digital form, to be copied & pasted at will, just like the Campbell soupcan was there ready to be silkscreened at will by Warhol.

This behaviour has become part of the post-modern form of expression. Postmodern artists who use pastiche reappropriate works in the public and reuse them and recontextualize them in their own work. Indeed, they critique and refute the very idea that the originality demanded by copyright law even exists in current commercial society. The postmodern pastiche artist will appropriate even banal cultural forms and artifacts to create work infused with criticism of the postmodern, market-based society. Thus, by recontextualizing small bits that represent the mainstream culture, it parodies the culture as a whole, rather than the bits it reappropriates.

Rap music as African American parody

"[T]he Negro is a sort of seventh son, born with a veil, and gifted with second-sight in this American world,—a world which yields him no true self-consciousness, but only lets him see himself through the revelation of the other world. It is a peculiar sensation, this double-consciousness, this sense of always looking at one’s self through the eyes of others, of measuring one’s soul by the tape of a world that looks on in amused contempt and pity. One ever feels his two-ness,—an American, a Negro; two souls, two thoughts, two unreconciled strivings; two warring ideals in one dark body, whose dogged strength alone keeps it from being torn asunder." (Dubois, W.E.B, 1903, p. 3)

In one of the most important cases about the right to sample in rap music, the rap group 2 Live Crew, mixed samples from the Roy Orbison song "Oh, Pretty Woman" into their similarly-named parody "Pretty Woman." The United States Supreme Court held that in this case, entitled Campbell v. Acuff-Rose Music, Inc. (1994), a work of parody constructed through transformative digital sampling was protected relief under the fair use exemptions. However, this only covered a direct parody of the source work. If they had used Roy Orbinson's song to ridicule someone else, they would have been infringing. This does not speak to the "new criticism" of pastiche.

As Passmore (1998) argues, as a weak minority culture, African Americans reappropriate copyrighted material from the dominant copyrighted culture to fight back and renegotiate the boundary of their existence. "Beneath the overtly 'afrocentric' politicking of the lyrics, the underlying music asserts a reclamation of urban space by appropriating a piece of mainstream pop culture, subverting it, and returning with a novel message wholly unintended by the original recording artist." (Passmore, 1998, 845) Passmore traces this process of "second sight" back to Duke Ellington's Harlem Air Shaft, a composition that attempted to capture the full essence of an air shaft of a Harlem tenement, from the sounds to the smells.

Passmore (1998) continues. Stuck between full marginalization and full acceptance in mainstream society, African American artists seek to expose the limits of the mainstream by misappropriating its signs. Of course, these signs are copyrighted. Benjamin (1968) argues that by making art an object, that is a copyrighted and copiable object, the object loses its sense of art as performance, ritual, or experience, but rather it becomes a political tool. Similarly, rap artists are negotiating with the signs of mainstream culture, as these signs are essentially political agents of that culture. On the other hand, as intellectual "property", they also serve as oppressive forces on these artists, as overwhelming ownership--copyright richness as Vaidhyanathan (2001) calls it--allows the mainstream culture to censor their efforts before they start. As the GreyAlbum demonstrated, an innocuous, positive, and even constructive use can get stopped before it even starts.

To quote one famous rap group, Public Enemy, 'Caught, can we get a witness?:

I found this mineral that I call a beat
I paid zero
I packed my load 'cause it's better than gold
People don't ask the price, but its sold
They say that I sample, but they should
Sample this, my pit bull
We ain't goin' for this
They said that I stole this
Can I get a witness?

How then does the African American speak? As many argue (Schumacher, 1995; Vaidhyanathan, 2001; Lessig, 2001), Western copyright traditions are stuck in a 19th century concept of the genius author. They do not reflect traditionally African American artistic styles. Although often derided unfairly as a culture of parrots at the turn of the 20th century (Vaidhyanathan, 2001), the African American expressive mode is hardly parroting, but repeating what others say with a twist, thus imparting new meaning built from the context of the source work. Gates (1988) calls this Signifyin(g). He points out that meaning occurs at many levels, not just on the surface, but also buried in the encoded intention to say one thing but mean another.

However, as Vaidhyanathan (2001) outlines, although the African American musical culture has always been communal, more one of sharing than ownership, white artists have repeatedly taken ownership over their collected output and profiting from it without due credit and royalties. From filing copyright over popular ragtime songs, to Elvis taking popular Motown riffs, to Eminem today taking their style, there has always been a dialectic of control and ownership from the dominant white culture over the minority African American culture.

When sound recordings were granted copyright protection in 1976 by Congress, this led as Toop (as qtd. in Schumacher, 1995, p. 265) claims, "creative pillage on a grand scale and [have] caused a crisis for pre-computer-age concepts of artistic property." In particular, by scratching and sampling recorded sounds, rap music criticizes the very concept of owning sounds.

Indeed, it does this simply by exposing the simple reality that all texts are intertextual. By demonstrating that no work is by itself original, but rather derived in some way from other works, and by then flaunting that intertextuality explicitly, rap music wholly exposes the gaps in the philosophical underpinnings of copyright law. The "demand for authenticity in popular music is a false request, because such a demand is made with the assumption that music exists in some pure form" (Jones as qtd. in Schumacher, 1995, p. 261). One cannot find an original piece of music. Rather, music derives from other music; it is infused by the technology; it is created by many hands.

CreativeCommons

The CreativeCommons has licenses to explicitly allow for sampling.

CategoryCopyright


References

Abramson, C. (1999). Digital sampling and the recording musician: A proposal for legislative protection. New York University Law Review, 74, 1660-1695. Available from http://www.nyu.edu/pages/lawreview/74/6/abramson.pdf

Argues that "Congress should create a statuatory property right for recording musicians in their recordings that are sampled and reused. This property right should cover both featured recording artists and nonfeatured musicians (NFMs), i.e. freelance musicians who are neither royalty artists nor copyright owners, and should require users of material sampled from commercially released records, tapes or CDs to pay a statutorily determined fee into a fund that disburses proceeds to the musicians who played on the sampled material." (1662-1663)

Benjamin, W. (1968). The work of art in the age of mechanical reproduction. In H. Arendt (Ed.), Illuminations. (pp. 217-51) New York: Shocken. Available from http://bid.berkeley.edu/bidclass/readings/benjamin.html

Bleistein v. Donaldson Lithographing Company (1903). 188 U.S. 239, 23 S.Ct. 298, 300, 47 L.Ed. 460.

Burroughs, W. S., Corso, G., and Sinclair, B. (1960). Minutes to Go. Paris: Two Cities Editions.

Campbell vs. Rose-Acuff Music. (1994). Inc. 114 S. Ct. 1164.

Dubois, W.E.B. (1903). The souls of black folk. Chicago: A.C. McClurg? & Co. Available from http://www.bartleby.com/114/

Esposito, J. (2003). The processed book. First Monday, 8(3). Retrieved January 26, 2004 from http://www.firstmonday.dk/issues/issue8_3/esposito [TheProcessedBook]

Gates, H.L., Jr. (1988) The signifying monkey: A theory of African-American literary criticism. New York: Oxford University Press.

Kaplicer, B. I. (2000). Rap music and de minimis copying: applying the Ringgold and Sandoval approach to digital samples. Cardozo Arts and Entertainment Law Journal, 18(1), 227-255

Lessig, L. (2001). The future of ideas: The fate of the commons in a connected world. New York: Vintage Books. [TheFutureOfIdeas?]

Marcus, J. H. (1991). Don't stop that funky beat: the essentiality of digital sampling to rap music. Hastings Communications and Entertainment Law Journal, 13, 767-90.

Overviews digital sampling and rap music's legislative standing at the beginning of the 1990's. Suggests a voluntary industry system to clear samples, noting that most artists give away samples for free. Nonetheless, this system relies on GoodFaith between all parties, and requires artists retain the services of a lawyer, which may be prohibitive for up and coming artists.

Passmore, M. G. (1998). A brief return to the digital sampling debate. Hastings Communication and Entertainment Law Journal, 20(4), 833-856.

Rap music is an outgrowth of post-modern pastiche and the particularly African American "Second Sight" dialectic with mainstream culture. While current pardoy exemptions require critiques of a specific work, rap music criticizes culture at large through appropriations of other (copyrighted) work from that culture. Digital sampling exists at the frontier of FairUse jurisprudence; decisions are being made, unmade, and remade. Passmore argues that provided enough transformative value is demonstrated, it benefits the public to enable this new form of criticism sampling, and thus it should be covered by FairUse.

Ringgold v. Black Entertainment Television, Inc. (1997). 126 F.3d 70, 74 (2d Cir. 1997).

Sanjek, D. (1992). "Don't have to DJ no more:" Sampling and the "autonomous" creator. Cardozo Arts and Entertainment Law Journal, 10(2), 607-624

Schumacher, T. G. (1995). "This is a sampling sport": digital sampling, rap music and the law in cultural production. Media, Culture & Society, 17(2), 253-273.

Much of the legal review literature to date has come down against digital sampling, viewing it as outright theft from live musicians and otherwise "authentic" musical creators. Others have argued that sampling is a DisruptiveTechnology? to CopyrightLaw itself, creating a explosion in legal complexities. Thus, some such as Houle (1992; p. 902) have concluded only through prosecuting samplers "will the true creativity be spawned and true genius discovered." However, music produced today is not original or "genius", but rather derivative and meant to be copied. Rather, the myth of TheAuthor no longer holds today, not in copyright law, and hardly for the African American.

Sony Corp. of America v. Universal City Studios, Inc. (1984). 464 U.S. 539.

Szymanski, R. M. (1996). Audio pastiche: Digital sampling, intermediate copying, fair use. UCLA Entertainment Law Review, 3, 271-284.

Wilson, S. R. (2001). Music sampling lawsuits: Does looping music samples defeat the de minimus defense? Journal of High Technology Law, 1. Available from http://www.law.suffolk.edu/stuservices/jhtl/V1N1/SRWILSONV1N1N.pdf

Under fair use exemptions, digital samples that were small or unrecognizable remained uninfringing. In particular, samples that were non-melodic, obscure, manipulated beyond recognition, or too short to be noticed would make detection of infringement very difficult (PracticalObscurity). Even if they were noticed, if the samples did not form the "heart" of the derivative work, they may still remain exempted. However, either a quantitative measurement (three seconds out of three minutes) or a qualitative measurement (not the "heart") of a sampling fail to account for looped samples. One may take a three second drum groove and play it repeatedly throughout the entire song. That would a substantial use of that sample in the derived work, no matter how short it was in the source work, and thus it may be infringing.

Vaidhyanathan, S. (2001) Copyrights and copywrongs: The rise of intellectual property and how it threatens creativity. New York: New York University Press.


Licensing

you can junk this if nothing happens with it by June, 2004

In the context of transformative digital sampling, the author's incentive has two components. First, it is important to understand the creative incentive provided for the musician who creates the original sampled work, and what derogation, if any, judicially permitted sampling would have on this incentive. Second, it is equally important to understand the incentive permissive sampling has for the sampling artist: the incentive to create new works using both novel technology and novel critical modes. (853)

Allowing permissive sampling in contexts outside the current fiar use regime would not necessarily reduce the incentive for authors to record original works, nor result in a significant reduction in the creation of musical works. For example, it is highly unlikely that a musician writing songs today would be dissuaded from continuing her project for fear that one day someone might sample a small, five-second portion of her recording ofr his own uses. And, as the Campbell Court noted, original words and the new transfomative works that utilize them "usually serve different market functions." Furthermore, a comparatively small number of artists will ever have their work sampled. Additionally for those artists who license sampling, licensing fees account for a relatively small portion of their compensation. Thus, the extension of the fair use doctrine to include other transformative critical modes does not necessarily present a substantial impact on the market for the sample artist's original recording. (853) (Szymanski, 1996)

Also remuneration from the licensing of derivative works, but must be balanced against the good of allowing transformative works (which is more good). Of course, derivations need sufficient transformative value.

(Passmore, 1998)

Licensing fees

"For instance, the New York based rap group Stetsasonic constructed a song in spirited defense of sampling and rap music. The song was woven around music taken from funk artist Lonnie Liston Smith's 1975 piece, "Expansions." Before recording their song, Stetsasonic negotiated with Smith and struct an agreement to pay the sampled artist three thousand dollars for the full ownership of the copyright to "Expansions." Stetsasonic recognized the possibility of some legal wrangling in the future, and therefore obtained permission from Smith to avoid future legal expenses. De La Soul, the defendant in one lawsuit already, decided to avoid legal problems with the '70s funk magnate George Clinton by paying him a flat rate of one cent per album. Clinton is also receiving half of the publishing royalties." (786)

"Ken Anderson, as noted earlier, in his duties as attorney for the Beastie Boys, spent many hours calling artists in order to "clear" the myriad samples that appeared in the 1989 album, Paul's Boutique. Mr. Anderson related that most of those samples were cleared for free, including one that was the property of the estate of the Reggae star Bob Marley. Mr. Anderson believes that most sampled artists merely want admission of sampling and recognition." (787)

There is no industry wide standard of cooperation, since the Copyright Act as it stands creates fear of litigation (AvoidLegalRisk). Most lawyers will tell their clients not to ask for legal permission because if they get turned down and sued then it is intentional infringement.

This paper proposes a lawyer-heavy solution where each recognizable sample is listed, and then lawyers clear each.

(Marcus, 1992)


Discussion

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