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Court Rules Against Unlicensed Sampling
An anonymous reader writes "Looks like there is no room at all for *any* sampling of "commercially protected" music. According to the open and future-looking judges, 'Get a license or do not sample. We do not see this as stifling creativity in any significant way.'" As the article puts it, this includes "minor, unrecognisable snippets of music." The decision was in the U.S. 6th Circuit Court of Appeals.
I mean, if I do a guitar solo and it happens that 3 notes used several times sound like, oh, 'cat scratch fever' or 'smoke on the water' (same riff, by the way), am I violating ownership?
But Ted Nugent still used his own little fingers and his own guitar to copy Ritchie Blackmore; he didn't record 'Smoke on the Water', change the rhythm and called it a 'new song'.
People can still rip off 'Eruption' and 'Foxy Lady' all they want; they just can't tweak the _recording_ of 'Foxy Lady', call it an original composition and not pay royalties. That's the difference.
You obviously don't know jack about how sampling/scratching/etc actually works and is used in music, do you? Perhaps you should educate yourself before making such statements.
For the record, you're right, "just tweaking the recording of Foxy Lady" should be licensed, but it seems pretty obvious that "even unrecognizable snippets" goes way beyond ruling against "just tweaking".
7 November 2006: The day Americans realized corruption and incompetence weren't addressing 11 September 2001
That fucker George Clinton is suing over a 15 YEAR OLD SONG? One that samples three notes, transposed and looped?
/. readers going "DUUUUUUUUUUH" right now).
/.
Wow, I didn't have any respect for him before. I certainly have even less now.
Apparently fair use doesn't exist anymore. (I can imagine some
To hell with them. It's getting to the point that, to fix the system, you'd have to abolish ALL copyright and start from scratch.
Or does anyone have any ideas to fix the system? Any ideas that are actually good? Thought so.
AND WHY THE FUCK IS THIS NOT FRONT PAGE? It's bad when you read something IN YOUR FUCKING LOCAL PAPER before seeing it on
While the article mentions they'd sampled, I worry that original recreation will be hit with the same law, i.e. getting a session guitarist to redo a riff in a different octave with different phrasing will be seen the same as 'sampling'.
Not necessarily, at least not from this ruling.
Copyright in music is a complex subject, there are different things in a song that are copyrightable and copyrighted, and the courts address them all separately.
First, the author of the music has a copyright. Think sheet music here, not anything you can listen to. The law gives the songwriter control over performances and over "mechanical reproduction", which originally meant production and distribution of player piano reels, but now covers production and distribution of CDs as well.
Next, the author of the lyrics has a copyright. This author also has control over performances and mechanical reproduction. In addition, copyright gives him some protection over the content of the words, so any "story" content, including characters and plot may have some protection, just like authors of books do (this is much harder to enforce, though, which is a good thing).
Finally, a recording artist who records a song has a copyright on the recording... completely separate from the copyrights on the lyrics and the music.
Oh, and I think the producer, sound engineer, etc. also technically hold part of the copyright on the recording, although in pratice the engineer is usually paid a flat fee and gives up his copyright (so no royalties).
Under copyright law, any copying and distribution of someone's copyrighted work requires a license, unless it falls under the provisions of Fair Use.
In the case of infringement on the recording copyright, enforcement is very simple, because the material is 100% infringing, even if it's been layered on top of other original music. This is what this court found, and it's no surprise (particularly given the existence of compulsory licensing, more on that below). Also, infringement on recordings has criminal remedies that go well beyond the simple civil damages available for the other two.
For lyrics, it's also pretty easy to enforce the copyright, especially if the copy is word for word and the words aren't something trivial like "Oooh yeah baby". But you can only recover damages.
For music, it's pretty hard to enforce the copyright, unless you just play a big section of a song. A small snippet of a tune may be recognizable, but the courts rarely find infringement. It's a good idea to check with an attorney before publishing in a significant way, though.
Note that all of this does not really constrain musical creativity, much. Why? Because if you don't publish your music, no one will care, and they won't be able to get much from you in damages anyway, and if you do publish your music commercially you can afford to pay for licenses.
Due to something called "compulsory licensing", the copyright holders *have* to license it to you, too. They can't decide they don't like what you're doing with it, or anything like that. In fact, you don't even have to ask permission... just send them a check after you publish. The amount of the check is defined by the law as well; there are statutory rates for music, lyrics and recordings, and the prices are quite low. If you want to negotiate a lower price, you can approach the copyright holder and do so.
The only situation I can think of that the system doesn't work well for is a musician who gives away his music for free, say over the web. The law doesn't cover this situation because it's new. Even ten years ago it wasn't really practical to give music away for free on a large scale, because publishing involved the production of physical objects with a per-unit cost and was therefore expensive. Since publishing was expensive, the incremental cost of a few compulsory licenses increased the cost by a manageable amount. Thanks to new distribution technologies, the c
Note to ACs: I usually delete AC replies without reading them. If you want to talk to me, log in.
The decision is binding only on federal courts in the 6th Circuit. Other courts may look at the decision as persuasive, but are not required to follow the precedent. The big decision, if the case goes that far, is the Supreme Court's ruling.
IANAL, but know a lot about this subject. Nope, only if it's sampled from someone elses recording, or, from an illegally recorded live performance.
When you play a C on your saxophone, and record the note, it's yours. If you record yourself playing someone elses music, and the recording contains a recognizable portion of the composition, and you sell it, you need to pay a royalty on the sheet music.
You are allowed to record yourself playing music then sell it, scott free, as long as you wrote the music, or its a 'standard' in the public domain. That includes the entire piece or any part thereof.
Me? I've spent many many years getting the proper texture and tone out of my fingers and guitars. The subtle click of using my left hand fingernails versus the softer tip pull, the slowly muted resonating strings when I play an open chord and cup the edge of my palm against the open strings... all of this is a unique work.
People are talking about using this to copyright "silence" or a "c note". That's not what this is about. All too often the things sampled are trumpet bits or riffs that the musicians spent their entire lives to get to. For each song I write, I spend hours looking for a good melody, then more hours to find just the right way to play it (listen to the early takes of the Beatles' Strawberry Fields Forever), and then throw away 9 out of 10 songs. The few I keep, I work at until they are "in" my fingers.
To directly address your question, I can pull a popular theme (I have, working a Zappa riff into a song about a guy stuck in the 70s), but that's entirely different than sampling a Zappa song and using it.
I'm not saying that people who work with samples are not musicians and that they do not create unique works. But, just as I'm allowed to perform a cover song but I can't take a song and perform it with different lyrics (unless it is protected parody or satire) without permission by the original author, the court has determined that you can't sample works without permission.
That's fine. Dolly Parton had to get permission to change the lyrics of her version of Stairway to Heaven and now a person wishing to use the crunchy intro note to Aqualung as a sample has to get permission.
--
Evan
"$30 for the One True Ring. $10 each additional ring!" -- JRR "Bob" Tolkien
Hold up...
compulsory licensing only works with playing someone else's work, not in publishing rights. You can't release a Beatles best of and just pay them compulsory licensing for their tracks.
Now, it would be a great idea in sampling, but you still need permission. The prime example is The Verve and Bittersweet Symphony. They asked the Rolling Stones for permission to use the small orchestral sample (which was pretty obscure - I doubt anyone's going to find it if they look.) and were refused.
They used it anyway. They got pwned. http://www.superswell.com/samplelaw/horror.html
I want the justices to hear some Avalanches, though... and tell me that the art could have been legitimitely created under United States law. If it can't, then it's stifling creativity.
>If I take a hubcap from your car, squash it into a cube then sell it for scrap, is that fair use?
Well, no, because you're out a hubcap. More accurately, if I see your hubcap, take a photo of it, and win a photo contest with that photo, do you deserve half the prize?
I'd say, no. Even if you'd modded your car with custom hubcaps, because I'd a) only used a portion of your mods and b) presented it within a new work.
The work is not the hubcap, even though it wouldn't be the same work without the hubcap.
A.
Here you go
The root of the matter was that the person in question credited Cage in the liner notes. If that had not been done, the lawsuit would never have happened.
"From my cold, dead hands you damn, dirty apes!" - CH
the problem here will be enforcement. The fact of the matter is, speaking as somebody with an *intimate* knowledge of sampling technology and techniques, that a sample used creatively enough is not recognizable. Most samples that I use are cut to ehll, processed through like 5 different effects, and then used melodically. There's no way that anybody will be able to tell where I got that sample from, what it was, or (most importantly) that I couldn't have re-created that .5 seconds of guitar drone myself. Much less prove it in court. They couldn't even perform a halfway convincing analysis of the sound without a complete master of the song.
They will never stop until somebody makes the
Because a guitar strum is a sample, too.
One of the most useful skills for an artist (or, for that matter, any creative person) is the ability to interpret and re-purpose works created before.
What we call folk wisdom is often no more than a kind of expedient stupidity.-Edward Abbey