Spacebomb: Sampling the goods

First made popular by hip-hop, sampling music is legally risky business. Spacebomb’s legal counsel strikes again with an in depth look at the art.

November 8, 2011; 9:54 AM • by Matt Rawls

We continue our Spacebomb series with a lesson on sampling in music and its legal implications from the Spacebomb Records legal counsel, Matt Rawls. On Wednesday, November 9, we present Black Girls and Weird Sailboat at Balliceaux, 10pm, $5, ages 21+. Visit spacebombrecords.com for more info.

Two weeks ago we talked about the 80s-metal band, Poison, and the recent copyright infringement lawsuit brought against them*. This week, we’ll dive deeper into the copyright infringement issues surrounding the use of sampled music.

As I’m sure you know, sampling is everywhere in current pop music. While the current law on using sampling music is fairly well settled, it is still controversial and many believe it unfair.

When sampling first became popular, the legal implications weren’t exactly clear. The music industry didn’t really know how to handling sampling either. Regardless, the popularity of sampling skyrocketed. Groups like Public Enemy and the Beastie Boys made it an art form.

Some artists took the time to get permission from the copyright holders. Many more artists, though, simply used the copyrighted songs and recordings, figuring they could just deal with problems if/when they arose.

This cavalier attitude came to an end after the case of Grand Upright Music Limited v. Warner Bros. Records, Inc., 780 F. Supp. 182 (S.D.N.Y. 1991). In that case, Biz Markie and Warner Brothers Records were sued for sampling Gilbert O’Sullivan’s “Alone Again (Naturally).” The judge stated his opinion with this short sentence: “Thou shalt not steal.” He then referred the case to the U.S. Attorney’s Office for possible criminal prosecution.

Music samplers immediately became more cautious.

So how does an artist legally sample music? Before a sample can be used, each party that holds a copyright on the requested song must grant permission. Remember, there are separate copyrights for sound recordings and for the underlying songs recorded. So, in order to sample a song, permission must be granted from both the record label and the publisher. Also, remember that many songs are owned by more than one publisher. In those cases, each publisher must grant permission. Now imagine how complicated it would be for an artist to sample a song which was composed of other sampled songs.

Clearly, this can easily make the cost of sampling prohibitively expensive. And that is what makes this area of law somewhat controversial.

Kembrew McCleod recently published a book about the legal issues surrounding sampling and hip-hop music, called Creative License: The Law and Culture of Digital Sampling. As you can see here, he and the co-author looked at the Beastie Boys’ album, Paul’s Boutique, to try and determine how much this album would cost with today’s laws and industry practices regarding sampling. According to their math, “Capitol Records would lose 20 million dollars on a record that sold 2.5 million units.”

That is where the controversy arises. Considering that many artists now are sampling songs which themselves sample other songs, it is clear how cumbersome current copyright law can be, and how difficult it can be for an artist to get all the needed clearances. Kembrew McCleod and others argue that this is contrary to one of the express purposes of copyright protection according to the Constitution: the promotion of artistic creation.

There is no simple solution, however. Change the law too much, and samplers can easily profit at the songwriter’s expense. Expect this area of the law to attract more attention coming years. Pay attention.

Regardless, the current state of the law is clear: if you sample music, make sure you get permission.

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*If you thought the Poison-inspired legal jokes in the post two weeks ago were bad, wait until you see the follow-up article from The Hollywood Reporter. It includes the line: “Every rose has its thorn, just like every claim has its dawn, just as every sleeping plaintiff sings a sad, sad song.”

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