Court Ruling Could Chill Sample Use

Fri Sep 10, 4:27 PM ET

By Susan Butler

NEW YORK (Billboard) - A surprising new court ruling could have a profound impact on the use of samples in hip-hop and other recordings.

In a decision that some industry lawyers view as contrary to the law, the U.S. Court of Appeals for the Sixth Circuit in Nashville created what it called a "new rule" in copyright law Sept. 7.

The court held that a mere two-second, unauthorized sample of a guitar solo from Funkadelic's "Get Off Your Ass and Jam" is enough to constitute copyright infringement of the recording.

The sample was used in N.W.A's "100 Miles and Runnin'," a cut on the soundtrack to the 1998 film "I Got the Hook Up," produced by Master P's No Limit Films. Bridgeport Music and Westbound Records claim to own the musical composition and Funkadelic's sound recording copyrights, respectively. They joined other parties in filing lawsuits in May 2001 against about 800 defendants for nearly 500 copyright infringement claims for unauthorized sampling.

Roughly half of the claims have been settled or dismissed; others are pending.

In the "100 Miles" action, a District Court in Nashville granted a summary judgment to No Limit in October 2002 finding that the samples did not infringe the copyright.

The latest decision follows an appeal of the District Court ruling by Bridgeport and Westbound.

Prior to the new decision, most copyright practitioners viewed samples as subject to the same infringement standards as other copyrighted works. That is, copyright law only protects "original" creative works, and there is no unlawful infringement for copying a work unless a substantial portion of the work (in quantity or quality) is copied without permission.

While this opinion does not apply to the underlying musical composition since the court held that the song was licensed, it does set a new "test" for infringement cases involving samples of sound recordings.

"This appears to be a very broad ruling that may impact other cases involving samples," says Westbound's attorney, Richard Busch of King & Ballow in Nashville.

The Sixth Circuit Court of Appeals considers cases in four states, including Tennessee. Courts in the other 11 circuits may or may not follow this ruling.


WHAT IS ORIGINAL?

First, the court held that merely recording sounds onto the master recording makes the sounds "original." Next, the court held that any sampling of sounds is an infringement of the sound recording copyright. Since it's unlawful to pirate the whole sound recording, the court reasoned, it's unlawful to sample less than the whole recording without permission.

"Get a license or do not sample," the court wrote. Further, the three-judge panel wrote, if the copyright holder refuses to license the sounds or demands too high a price, copyright law already permits a producer to record a duplicate "sound" with instruments in his own studio.

"This decision is wrong as a matter of law," one attorney says, reflecting the opinions of others who are familiar with the decision.

For hip-hop artists and producers, increasing the royalties they must share with others could have a significant impact on their bank accounts.

But it's not only about the money. Many hip-hop producers are not like traditional record producers who work in a studio and know how to mic-up the instruments and vocals, producer Hi-Tek says. Instead, these hip-hop producers only know their own equipment and work in a small space. They rely on samples.


THE ART OF THE SAMPLE

"Sampling is so important. It's the foundation of rap and hip-hop," the Roots' co-manager Shawn Gee says. Early rappers like Grandmaster Flash and Sugarhill Gang rapped their rhymes over existing music; that was the art form. As hip-hop evolved, "samples became an instrument" to create new sounds, he says.

Hi-Tek explains, "To be a hot producer, you have to have an ear for a different vibe."

Samples inspire producers to create a new piece of music. Sometimes they use a sound like a snare or a kick drum that no one else may even notice in a recording. Part of their talent is the ability to find different sounds to sample. Restricting the use of samples, Hi-Tek says, is also "taking away the fun."

Is the appeals court decision a victory for labels and producers who own sound-recording rights? At first glance it appears so. On second glance it's a double-edged sword.

While the decision protects labels whose recordings are sampled, it can turn those companies into defendants if their releases include samples that they did not know about and did not license from the owners. All the major labels were among the original 800 defendants sued.

For the most part, labels prefer to err on the side of caution. Ian Allen, director of sample clearance at Island Def Jam, has licensed thousands of samples in his 10 years with the company.

"My standard rule of thumb is that a sample that brings to mind the song must be cleared," he says. "Any recording of more than a note, you really have to consider licensing the sound recording."

In the case of "100 Miles," N.W.A originally had revealed the presence of the sample but sought only a synch license for the composition.

However, it is sometimes part of a producer's mystique not to reveal the use of a sample.

Multiplatinum hip-hop artist Cam'ron says, "I work with any producer that brings me a hot beat, but you don't always know if it's a sample."

Like most artists, Cam'ron focuses on the music first and worries about getting the rights to use the samples afterward. But problems with getting these rights affected his selection of one producer recently. Since his label was unable to clear a sample the producer used on a previous track, this "bad luck" made him pass on using that producer again.

While producers like Hi-Tek don't believe the court's ruling will have much affect on their work, some business managers disagree.

The decision will have "no impact on creative producers until they're hit with their first lawsuit," Gee says. That is when they'll feel it in their pockets.

With all the bootlegging and piracy that is affecting the industry, it is no surprise to Damon Dash that companies are going to court to collect on samples. As co-founder of Roc-a-Fella Records with Jay-Z, he believes that using samples is an art form. If there are restrictions on their use, however, then producers have to "step up to the game" and become more creative without using samples. "I look for hit records," Dash says, with or without samples.

Meanwhile, the "100 Miles" case has been remanded to the District Court for further proceedings, including a decision of possible damages.

No Limit Films could also seek a reconsideration of the decision or a review by the U.S. Supreme Court (news - web sites). "We've just received the opinion and are conferring with our client to decide what action to take," says attorney Bob Sullivan of Loeb & Loeb in Nashville.

Reuters/Billboard
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Court: Sampling May Violate Copyright Law

Tue Sep 7,10:07 PM ET

By JOHN GEROME, Associated Press Writer

NASHVILLE, Tenn. - A federal appeals court ruled Tuesday that rap artists should pay for every musical sample included in their work — even minor, unrecognizable snippets of music.

Lower courts had already ruled that artists must pay when they sample another artists' work. But it has been legal to use musical snippets — a note here, a chord there — as long as it wasn't identifiable.

The decision by a three-judge panel of the 6th Circuit Court of Appeals in Cincinnati gets rid of that distinction. The court said federal laws aimed at stopping piracy of recordings applies to digital sampling.

"If you cannot pirate the whole sound recording, can you 'lift' or 'sample' something less than the whole? Our answer to that question is in the negative," the court said.

"Get a license or do not sample. We do not see this as stifling creativity in any significant way."

Some observers questioned whether the court's opinion is too restrictive, especially for rap and hip-hop artists who often rhyme over samples of music taken from older recordings.

"It seems a little extreme to me," said James Van Hook, dean of Belmont University's Mike Curb College of Entertainment and Music Business. "When something is identifiable, that is the key."

The case at issue is one of at least 800 lawsuits filed in Nashville over lifting snippets of music from older recordings for new music.

The case centers on the NWA song "100 Miles and Runnin," which samples a three-note guitar riff from "Get Off Your Ass and Jam" by '70s funk-master George Clinton and Funkadelic.

In the two-second sample, the guitar pitch has been lowered, and the copied piece was "looped" and extended to 16 beats. The sample appears five times in the new song.

NWA's song was included in the 1998 movie "I Got the Hook Up," starring Master P and produced by his movie company, No Limit Films.

No Limit Films has argued that the sample was not protected by copyright law. Bridgeport Music and Westbound Records, which claim to own the copyrights for the Funkadelic song, appealed the lower court's summary judgment in favor of No Limit Films.

The lower court in 2002 said that the riff in Clinton's song was entitled to copyright protection, but the sampling "did not rise to the level of legally cognizable appropriation."

The appeals court disagreed, saying a recording artist who acknowledges sampling may be liable, even when the source of a sample is unrecognizable.

Noting that No Limit Films "had not disputed that it digitally sampled a copyrighted sound recording," the appeals court sent the case back to the lower court.

Richard Busch, attorney for Westbound Records and Bridgeport Music, said he was pleased with the ruling.

Robert Sullivan, attorney for No Limit Films, did not return a phone call to his office.

they shoulda been payin for that shit anyway.

Well, all of that Funkadelic shit should be free cause George ain't getting any of the money!

.
[Edited 9/12/04 17:13pm]

"Get a license or do not sample"

"...copyright law already permits a producer to record a duplicate "sound" with instruments in his own studio."

Obey the law or employ musicians, what a novel concept.


"For hip-hop artists and producers, increasing the royalties they must share with others could have a significant impact on their bank accounts."



"Many hip-hop producers are not like traditional record producers who work in a studio and know how to mic-up the instruments and vocals", producer Hi-Tek says. "Instead, these hip-hop producers only know their own equipment and work in a small space. They rely on samples."

"Try to learn instead of burn, hear what I say"
~Jimi Hendrix


If there are restrictions on their use, however, then producers have to "step up to the game" and become more creative without using samples.

A nice dose of common sense.


"It seems a little extreme to me," said James Van Hook, dean of Belmont University's Mike Curb College of Entertainment and Music Business. "When something is identifiable, that is the key."

So, if the sample is identifiable (meaning it probably came from a hit song by a known artist?) the ruling should be upheld but if the sample is unidentifiable (meaning it probably came from an obscure release by an relatively unknown artist?) they should let that slide.

Sounds to me like he's advocating that the little guy should get screwed...as usual.

Thanks for posting the articles Moonwalkbjrain.

tA

Tribal Disorder

http://www.soundclick.com...rmusic.htm

AMEN!

Y'all are acting like sampling 3 notes from a guitar solo and working that into a beat ISN'T creative (especially for 1991)?? "100 Miles" is dope, straight up.

Dr. Dre is an example for aspiring producers, so all this rah-rah about how this will make people more creative, well newsflash, people are already clearing and paying for samples (loops) that are a big part of the original song.

So the only change I see is making someone like DJ Premier pay for his awesomely-creative chopped up beats. If you don't have respect for the creativity of the likes of Premier then you really don't give a shit about real hip-hop. And THAT's the truth.

This law won't turn every hip-hop act into the Bar-Kays or whatever fucking live instrumentation you expect of everyone. That's not hip-hop (don't even bring up The Roots, they are an exception, not the rule).

And another thing, laws do not inspire people to hibernate and learn guitar. Laws like this are the reason you hear beats like "Holidae Inn" by Chingy and "Yeah" by Usher.