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.

Comments

Cage

[jefu]

So now John Cage's estate will be able to sue anyone who has any amount of silence in their music, since it could be argued that they'd sampled his piece 4' 33". OK, its a stretch, but with decisions like this, who knows?

"minor, unrecognisable snippets of music" banned?

[iainl]

Maybe I've missed something obvious here. If its minor and unrecognisable, how will the copyright owner know its happened?

Personally, I'm entirely behind the idea that if your sample is recognisable as someone else's song, then you've got to license it. If you can't tell, then you've obviously done something new with the sound and its fair game.

what of reinvention of 3-note riffs?

[ghostlibrary]

The article mentions the sampling of a 3-note riff. While "Name that Tune" does indicate such things are recognizable in the right context, I fear this means any musician who happens to use a short riff that happened to be in some obscure song will suffer too.

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?

And this will kill jazz... no more nods to other works in solos?

Next up: any writer who uses 3 words in sequence that appeared in a previous writer's book is now violating that original author's intellectual property and will be sued.

Worse, the article's 'stolen' 3-note riff is only 6 pieces of information-- 3 pitches plus 3 rhythms. They'd downsampled and changed the rhythm, so we're saying anything that is _similar_ to a known bit is at risk.

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'.

Re:what of reinvention of 3-note riffs?

[elmegil]

they just can't tweak the _recording_ of 'Foxy Lady', call it an original composition and not pay royalties.

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".

Re:what of reinvention of 3-note riffs?

[swillden]

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

Just asking to be made fun of...

[BrynM]

Now that artists can't sample even single notes, I have a suggestion for fellow musicians: When you sample, please be sure to make fun of the original work and this ruling in your song. Then you may be able to claim protection as a parody and you could bring some of this silliness to public attention.

Imagine the young artists and DJs that we will never hear because they can't afford to clear the rights to release their first album. The idea that this high cost of entry into what are already accepted music genres won't stifle innovation is stupid. The field just got closed to those with money and attorneys.

Binding Authority only in the 6th Circuit

[{8_8}]

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.

Re:Maybe this will foster some more "creativity"

[JabberWokky]

Because the work and the performed work are two different things. Anybody is allowed to cover any song. There are mechanical royalties in effect that standardize the repayment for the work. Nobody is allowed to copy any performance of any song without permission.

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

Re:15 year old song?!?!?

[Eneff]

In defense of George Clinton, he lost a pile of money on people sampling his stuff in early rap. This was a time when he was barely making it week to week because he had someone else stealing his royalties.

and no, fair use doesn't apply to sampling. That's what they're saying. And frankly, if you look at what fair use is, it shouldn't.

Now I like The Grey Album and the Avalanches and much of the meta-art genre, but under current laws this is the correct implementation.

This is a legislative problem and only solved with a ballot or a gun.

completely impractical...

[bechthros]

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.