7. Ethics Of Sampling.

Clearly sampling has created several problems in the field of copyright law. These and some of the possible solutions are discussed below. The main problem with sampling is that a musician is using not even an exact copy, but the original work of somebody and passing it off as one's own. A press release from the Music Publishers Association Ltd. (M.P.A.) made the point: 'How would you like it if your property was stolen, cut up in pieces and put back together in a different shape and sold to someone else?' (\mpapubs\spr2). It also raises the question of whether the person who played the original sample that was looped back to make a new song owns the whole track or whether the person who took the sample and arranged it owns the track. One could even say that the sample is being stolen from the record company who paid for the studio time. I think that this is wrong for shorter snippets because one would only be taking an abstract sound or couple of notes not a whole melody or phrase, and even George Clinton said 'De La Soul pay real well' (MT, (March 1992)), when they used one of his samples.

No art form occurs in isolation. I feel that all music comes from other peoples' ideas,- and this applies to most art, i.e. an artist draws inspiration from past masters and their contemporary peers, writers can develop other peoples' characters, and musical composers look back retrospectively and also feed off each other to move forwards. As one person creates a new style, others adopt it and add something of their own to progress. Sampling is not so different in that it also adapts what has gone before. As Jane Howard pointed out, 'There is no such thing as total originality'.

It is accepted that artists can perform somebody else's song so long as they pay for the use of the composers lyrics and music; they however will only receive the royalties due to the performance. When somebody uses a substantial sample (more than a percussive sound or individual note, i.e. a whole recognisable melody) it seems only reasonable that the artist who took the sample should pay something to the original composers, artists and publisher of the material from which the sample was taken for the use of the sample. However the cost of a sample depends entirely on the disgression of the copyright owner, and as a matter of principal EMI Music Publishers will not allow any work to be used for free. I feel that some of the charges, which are still escalating, are too high already, e.g. $2000 advance on masters (Maria Forte). I believe that the second composer should probably only pay a small percentage of the profit- 5-10% maximum for all the samples used in one song. This is because (if a sample is used creatively) the artist has selected and chosen a specific sample out of a tune- looped it- perhaps altered it and sequenced it, probably mixing it with other samples and instrumentation using their own skill and judgement and although the sample may be recognisable it bears little resemblance to the original tune. This means that the musician who took the sample has worked hard, has added something new and has produced a distinctive individual creation. This evidence of discernment and skill indicates that sampling deserves more artistic respect within musical circles. Artists who incorporate samples into their work, (especially Hip Hop producers) take tunes that are often past their time, unheard of and rarely purchased and then make them into something popular. This in turn makes the public aware of the original piece, and if it is available or re-released it can have a second wind and possibly even become a hit another time around. This rejuvenation of records could probably earn the original artists a lot of money, and if it wasn't for their greed this unexpected income ought to be enough to prevent the need to pay for clearing samples.

As the record industry is a hard business it cannot be expected that anybody will allow the use of their work for nothing when they think that they may be able to get something in return, often only a few musicians will make it big, and most will be looking for a quick buck as they struggle through life.

This is, I feel, where there is a problem of interpretation of the Law. The copyright owners will say that the new work (containing samples) is merely an adaptation of the original (even if it hardly resembles the original), and therefore they require payment, and the samplers will say that the new work is due its own copyright as work, skill and effort have been put in to create an original piece and as far as they are concerned no slavish copy has been made so no payment to obtain a licence is needed.

I wouldn't be averse to crediting artists for samples used on the sleeves of records to help facilitate extra sales of the originals, although this would detract from the secretivity of the sources of samples and would reduce the mysteriousness of how to obtain these records, which is one of the things that keeps this genre (Hip Hop) alive- the never ending quest for unknown breaks and beats!

However credits on the sleeves would also mean that more people would use these samples and sample in general because they would know where to get hold of the records. This would be a backwards step for those people who wish to eradicate ('free') sampling, and could also possibly lead to a less creative and more repetitive use of samples.

8. Licensing.

To use a particular piece of music it is necessary to get permission both from the company who owns the copyright in the sound recording and from the owners of the original work/ composition. If the work is to be copied which includes 'Sampling', M.C.P.S. should be contacted for a licence, (or if the piece is only to be performed the P.R.S. is the responsible body). Music publishers own the majority of copyrights in songs and as there are thousands of these it makes sense that rights owners belong to organisations such as M.C.P.S. or P.R.S. so that a lot of time can be saved whilst obtaining licences. These organisations also have massive computer databases with all the details of songwriters, songs, singers, publishers and record companies etc. so that they can give most information very quickly. The main reasons to get permission to use a piece of work is that the copyright owners might object to how their work is used, and the fact that both they and the record companies want to get paid.

9. Copyright Infringement (Examples).

Any sample is a copy so permission must be sought in order to use it- some people might say that 'if you can recognise a separate work within another then an infringement has been committed' or 'its not quantity but quality'. Ben Liebrand said 'If a drum loop is used in a record and is covered with other instruments it is quite easy to get away with it' he added 'Samples should be short, they should be sound effects or non-melodic' (MT, (March, 1992)). The fact that any sample must be paid for is thought to be so crucial that at Polygram there is a whole department whose job is to listen to records to check for unlicensed James Brown samples. James Brown who was himself sceptical about sampling and has become one of the most sampled artists, has now started sampling artists who have sampled his work previously and altered it in some strange way that amazes him. Because of the economic realities of going to court the case law in this area is quite sparse. The expense also means that copyright infringement does not usually become an issue until someone has made serious money from someone else's creation.

If you follow the rules things can be good for people using samplers e.g. P.M. Dawn obtained permission from Spandau Ballet to use samples from 'True', which helped them make their song 'Set Adrift On A Memory Bliss Of You'. Spandau Ballet even helped promote it. The music for the P.M. Dawn song was very similar to the original and instantly recognisable, as the main samples were a couple of bars repeated and arranged into a new sequence, so if a licence had not been obtained an infringement would certainly have been committed. The details of the licence meant that P.M. Dawn had to split the royalties/ earnings with Spandau Ballet 50%/50% . In the process the original 'True' was re-released and was a hit a second time around. Everybody was happy but things aren't always this simple or easy.

For example De La Soul's first single 'Plug Tuning' sampled Liberacé which did not cause much of a problem, probably as it made very little money, but when they sampled Hall and Oates on 'Say No Go' and the song became a hit they encountered a law suit, and worse, at the end of 1989 the Turtles sued for $1.1 million for the use of an unlicensed sample from their 1969 single 'You Showed Me.'. However the case was settled out of court for a figure 'rumoured to be in the low five figures'.

More recently (1988), rapper Biz Markie and his record label Warner Bros. Inc./ Cold Chillin' were cited for violation of US copyright laws and he was condemned for his use of an eight bar sample from Gilbert O'Sullivans 1972 song 'Alone Again (Naturally)' as well as the titled refrain, (published by Grand Royal Music).

Other (Rap) acts using samplers such as Rob Base and the Beastie Boys have been reprimanded, and as far back as the early eighties Kraftwerk sued Afrika Bambataa for sampling a drum beat. In November 1992 Redman was taken to court by Bridgeport Music for sampling from the Clinton/ Parliament/ Funkadelic back catalogue without permission, but when they tried to sue Eric B. and Rakim for using one of their samples on 'Lyrics of Fury' the case was thrown out of court because their ownership of the back catalogue was in doubt. Big artists such as Marly Marl and L.L. Cool J. have been challenged for sampling 'Rappers Beware' an old drum track and even Michael Jackson has been in trouble for sampling 67 seconds of the Cleveland Orchestra's rendition of Beethoven's Ninth Symphony. Penalties are often shown to be excessive as A Tribe Called Quest supposedly had to give over 100% of their copyright in a deal negotiated with Lou Reed after the release of their single 'Can I Kick It?' when they sampled the bass line from his single ' Walk On The Wild Side'.

All the previous cases have been American examples, but in the UK a band called 'Shut Up and Dance' (comprised of two members- PJ and Smiley), and their small independent record label of the same name were put out of business by excessive fines after having been found guilty of using a sample from Mark Owens' 1974 hit single 'Walking in Memphis' in their 1994 single 'Raving, I'm Raving' without first gaining clearance. PJ said that MCPS had been watching the progress of the band and label, from being a large (but not very profitable) underground force and seemed to wait until the band had a large hit to make their move. Just two weeks prior to release MCPS demanded that all offending copies be returned and destroyed. However some copies reached the shops and surprisingly the single charted and still holds the record for the most sales in the shortest period of release. Mark Owens' hit single 'Walking In Memphis' was re-released but to PJ and Smileys delight, was a complete flop and points to the possibility that A) records using samples often appeal to a completely different audience to that of the original and that B) artists that use samples often add to or change the original sufficiently to create unique music.

MCPS went through the entire back catalogue of the Shut Up and Dance label and combed it for any uncleared samples that they could recognise, which unfortunately were liberally scattered on almost every release. Some of the artists sampled included Suzanne Vega and Prince, and Shut Up and Dance were made to pay for every one. As is often the situation in these cases the final settlement was made out of court and the sum involved remains undisclosed. PJ also said that when he first started sampling he tried to clear the samples but nobody in the record companies really knew or understood what a sample was and so he was shifted from department to department and eventually could not obtain permission. He still maintains that relatively few people really understand the sampling process and that it is difficult and takes a long time to make ones records legal.

After a period of rebuilding and consolidation Shut up and Dance have relaunched last year and are finding that their fame and notoriety have helped them to obtain licences more speedily this time around.

However the results of court litigation are not all entirely going in favour of the owners of the original copyright, and one of the most recently publicised cases was that of the Two Live Crew, (who, with almost every release cause controversy and push the limits of acceptability. Being American they have also strengthened the law covering freedom of speech).

In 1964, Roy Orbison and William Dees wrote the rock ballad 'Oh, Pretty Woman', which in 1989 The 2 Live Crew sampled as a basis to construct their own song. They took the distinctive bass line from the original, but drastically altered the lyrics, added turntable scratches, a different drum beat and solos in different keys. So although the music can be recognised as the original, it has been changed into something different. The 2 Live Crew song was released on the LP. 'As Clean As They Wanna Be' which was a collection of their least offensive tracks.

Probably purely coincidentally, shortly after the 2 Live Crew release the motion picture 'Pretty Woman' came out. This increased the problems as the sound track featured the Roy Orbison song but the film included the 2 Live Crew version. The film producers had to obtain a licence for the Roy Orbison song, but as titles cannot be copyrighted no permission was needed from anybody to use 'Pretty Woman' for the title of the film.

Acuff-Rose Music Inc. (the publishers owning the rights to the original 'Pretty Woman' song), took (Luther) Campbell to the Supreme court (USA) to sort out the ownership dispute. Luther Campbell is the owner of Luke Skyywalker records, the label, upon which the tune in question was released. He owns the copyright in the sound recording and is a member of the band. This case is interesting as previously the fair use law had been interpreted to mean that any commercial use was presumed to be an infringement i.e. illegal, but in this case the court reinterpreted it after looking at a previous case that has been used in many fair use cases:

The court also paid equal importance to each of the factors put forewords in the fair use test suggested in the Copyright Act 1976 (USA) and looked at another previous case to see to what extent an infringement (if any) had occurred. This case determined that it was necessary to:

The court also investigated whether the 2 Live Crew's version would dilute the market for the original. They were of the opinion that the buying audiences for each record were essentially different and therefore sales of either would not affect the other. The court also decided that although the copied material was used for commercial gain other factors overrode this and the parody was a protected fair use.

I see this as a key ruling because often music using samples, takes less of an original piece, and sounds less like the original than the 2 Live Crew's version does. Songs containing samples rarely borrow any of the lyrics (unless they sample a vocal phrase), let alone basing a song around the original. All this means that if the ruling made in this case is followed by more courts, less samplers should land up in trouble or have to pay for the use of the samples taken.

I am concentrating on audio sampling but as technology improves and the use of scanners and software packages such as Photoshop become more widespread the issues raised by audio sampling could increasingly apply to pictures and images. The poster for the film 'Pretty Woman' could also cause sampling controversy as the woman next to Richard Gere has Julia Roberts' face but uses an anonymous body double, so to obtain permission to duplicate the poster one would have to get a release from Richard Gere, Julia Roberts and the body double.

10. Solutions (Sample Clearance).

There are a number of possible ways of resolving the ownership problem. One possibility is 'Clear' any samples used. Clearance would probably not be worthwhile for a small production run (perhaps upto 5 or 10,000 units), because the chances of being caught are so slim. In America sample clearance is now common practice and a publishing deal is usually done at the same time,- This would involve paying the artist a fee or even a percentage for their permission to use the sample and depending on the agreement might include acknowledging them on the sleeve. Record companies and rap artists/ producers have been using the rapidly expanding sample clearance houses such as 'Clearance 13'-8"', 'Diamond Time' and 'Sample Doctor' to make a security blanket to avoid an expensive legal battle.

The clearance houses' main purpose is to catch any problems pre-production before they arise post-production and are therefore less expensive to fix. Clearance payments can be upto $2000 advances on masters (this is a completely unrealistic charge for small artists and record labels, and would still be too high even if it cleared all the samples used, because this figure could be larger than the entire profit made by some smaller singles), but if one ignores the sampling costs 100% of a songs copyright may have to be given up. Copyrights have become commodities- both Ray Charles and George Clinton have been beneficiaries but they haven't been paid for their songs only their copyrights. Warner Brothers record company have made sample clearance compulsory for all their rap artists. Ex-Third Base member Pete Nice has coped with these problems by recording live music over his breaks; he then only sampled the live overdubs, which means that he must only pay once for the use of the composition but not a second time for copying the sound recording (although he will have to pay and recognise the session players this is likely to be a one off fee and therefore less expensive in the long run).

The sampling phenomenon has proven to be an unforeseen source of revenue and as human nature often leads to greed everybody wants to claim a publishing interest. One rapper who used a Rolling Stones sample as the bass line for a track had to wait for nine months to obtain clearance, even when Mick Jagger loved the new track and Sony New York moved rapidly. Sample clearing is a long and tedious process and clearance houses have the contacts to get it done quicker and sooner than anybody else, this is where they have carved a niche for themselves in the marketplace.

If a record has been released containing an illegal sample and the copyright owners of the original work find out, they can use the services of the Music Publishers Association to avoid a lengthy and expensive court case. This procedure has been set up on a trial basis to help musical copyright owners involved in sampling disputes resolve their arguments provided both parties go with an attitude of reconciliation. Submissions to the M.P.A. will be sent to a specially convened (by the M.P.A. Secretary), panel of three experts, - one representative from a major record company, a representative from an independent record company and a representative from a composer organisation. The panel's function is not to determine whether a musical work has been sampled or not, or whether such a sample constitutes an infringement, or whether the sample infringes on the moral right of the original composer, the best place for this is still the courts. The function of the panel is to fairly and independently make recommendations upon the split of royalties earned from the exploitation of the new work, although the findings are not binding.

For disputes to be considered by the panel recordings of the sample, original tune and final tune are recorded onto cassette and along with a fee of £100 excluding VAT, and a completed short submission form are sent to the M.P.A.. The procedure is open to anybody to so long as one of the parties is a member of the M.P.A.. For records containing more than one sample the fee must be paid in respect of each sample.

Another solution is to sample from products assigned as 'MACOS' which stands for 'Musicians Against Copyrighting of Samples'. This means that a musician can sample from a MACOS musical work without fear of infringing on copyright or incurring any legal ramifications. Unfortunately the catalogue of MACOS products is still quite small.

MACOS is a non-profit organisation which is constructing an international network of musicians whose opinions of sampling and the use of sampling technology oppose the copyrighting of samples. Becoming a member of MACOS does not affect copyrights in any other way than to pro-actively grant permission to anyone, to freely sample from that material for use in musical composition.

For one to assign their work as a MACOS product one simply informs MACOS, who will supply special logos which are placed on the particular work. Specific tracks on a record can be assigned or not, but a clear note stating what the status of each track is required. It is also possible to reserve specific rights such as that of paternity, by instructing the samplers to do so on the sleeve.

It will still be illegal to sample any unauthorised samples on a MACOS product, and artists should check with their record label and sound recording copyright holders before enabling material as a MACOS product, so that the label doesn't sue anyone sampling their work.

11. Conclusions.

There are several further questions to be asked such as, when somebody samples a record that uses samples - who does one talk to about clearance- the original artist or the artist who sampled the original? Also to whom should the royalties be paid, and would the fee be smaller because the sample used was second generation? This scenario is already happening and will increase the confusion in an already perplexing and bewildering topic. For example Mind Bomb sampled the intro. from EPMD's 'You're a costomer' on their 1995 album track 'The Mind Bomb'. EPMD inturn had sampled Captain Skyy as the basis for their 1988 track, they added drums from a Roland 808 to a one bar sample, but because of the environment at the time the sample was not licensed or even credited. The Mind Bomb sample is not licensed and will not be a problem due to the limited distribution, but if the record became a hit a whole can of worms would be opened. Mind Bomb might have to pay Beach House Music (the publishers of EPMD), if they were unlucky in a court case, but EPMD might not sue for royalties owed, as they obviously see nothing wrong with sampling. Would Captain Skyy's publishers have a case against Mind Bomb? or could they only try to recoup royalties from Beach House Music? Could they claim anything as the EPMD record was released before anyone even realised they had to license longer samples?

Another example is the drum beat at the beginning of 'Substitution' by Herb Rooney, published by Proboscis Music, which was first used by the Ultramagnetic MC's in 1987 on 'Ego Trippin'' published by STM Music/ Ultra Magnetic on Let's Go Records. The Ultramagnetic MC's credited nobody with supplying the original sound recording, but did not get sued. Subsequently many artists have sampled the Ultramagnetic version of the beat.

Nobody, as yet has been taken to court for sampling just a drum beat, even one two bars long, so it seems there is an unwritten rule stating that this use of percussion only, is permissible. On the other hand sampling whole melodies or vocal samples is risky. In the first case, under the current law Captain Skyy would have a viable case against EPMD and Mind Bomb. EPMD could also chase Mind Bomb for royalties, however unlikely. I believe that once an infringement has been allowed to pass any further sampling should also be permitted. It also seems reasonable to me that somebody who has used samples should be prevented from either, stopping their work from being sampled, or from claiming excessive royalties. Tuff City Records (New York) have purchased the rights to 'Impeach The President' by 'The Honey Drippers', because they knew many of their artists, and others as well would sample this tune, thus saving and earning them money at the same time.

It looks like some musical pieces have fallen unexpectedly into the public domain early simply because their use has become common practice. One of the most obvious examples is 'Funky Drummer' by James Brown which has been sampled on countless modern tracks. Some artists have been sued and lost large amounts of money for using 'Funky Drummer', others obtained licenses, but the vast majority of people using the break get away with it completely as Polygram don't even notice the tracks.

The problem will not go away and as the price of high quality samplers falls their use will increase. With the booming success of the internet many people are now breaking the law by unwittingly including copyright sound material in their web pages and E-mail and then broadcasting it to a potential audience of billions. With the invention of being able to transmit audio data in real time using systems such as Cerberus, I-Wave and Real Audio direct to the consumer mean that this abuse of copyright materials over the internet is also set to increase. In November 1993 Frank Music took CompuServe (an on-line computer service) to court for providing recordings of copyright music to its customers to freely download, and won.

However there is technology such as SCMS (Serial Copyright Management System) which prevents somebody making a further digital copy from the first source and a new standard is appearing- the ISRC (International Standard Recording Code). If fully adopted ISRC will include non-audio data within sound recordings which will identify the source of each recording, enabling infringers to be traced and may eventually include a copy protection mechanism.

Protection will become increasingly important as digital broadcasting becomes a reality with the explosion in channels that this will bring along with direct digital distribution. The final means of distribution is not yet certain so a flexible approach to new legislation is necessary so as to afford protection now and so as to not stifle development of new technologies. It is possible that a separate new right will need to be created to identify Interactive and Multi-Channel Digital Diffusion (MCD) rights as present rights possibly will not be able to cope.

It seems to me (as with most things in life), that the power and ability to make the rules is in the hands of the and rich, i.e. the big record companies and music publishers. Most of the law in this area is edging towards the side of the owners of the original pieces and gives no ground to the user of samples especially the small, independent (and poor) musician. One of the most vital steps needed to protect the users of samplers is an industry accepted standard mechanical rate for the use of a sample. This would only work if the rate was set low enough so as to not take all the profits and took full account of the length, contextual use, amount of transformation, substantiality of the sample and the amount to which the two records would encroach on each others' market.

It seems paradoxical that in computer circles a copyrighted program in binary machine code compiled for a particular platform may be backwards compiled to object code and recompiled for another platform by a third party and the second code will qualify for its own independent copyright. This can be paralleled to taking a sample and recompiling into another song, where the new song is an infringement and does not receive its own copyright. The situation seems even stranger due to the fact that a computer program can be used to do the compiling automatically, meaning that not much work has been done by a human to earn the second copyright but no change is made to its validity. If these rules were applied similarly to sampling almost all sampling without licences could no longer be classed as theft.

12. Bibliography & Acknowledgements.

Books.

Crabb, Geoffrey, (1990), Copyright Clearance: a practical guide, National Council for Educational Technology, London, UK.

Dworkin, G & Taylor, R, (1989), Blackstones Guide to the Copyright, Designs and Patents Act 1988, Blackstones Press, London, UK.

Fryer, T, (1989), A Practical Approach to Digital Sampling, Hal Leonard Publishing, USA.

Huber, David Miles, (1992), Random Access Audio, Sams Publishing, USA.

National Research Council, (1991), Intellectual Property Issues In Software, National Academy Press, USA.

(1991), Writers and Artists Yearbook, A&C Black, London, UK.

Periodical Articles.

Barnes, J, (1996/ January), Shut Up and Sample, Hip Hop Connection magazine, UK.

Goodyer, T,(1992- March & April issues), Criminal Record, Music Technology magazine, UK.

Goodyer, T,(1992- April issue), Soul Mining, Music Technology magazine, UK.

Jones, A, (1995/ August), Beginners Guide To Sampling pt. 5- Seized, Future Music magazine, UK.

Van Schaick, M, & Braine, A, (1992- October & November issues), Copyrights- and Wrongs, Music Technology magazine, UK.

Wilkins, M, (1993/ November), Sound Advice, Making Music magazine, UK.

(1989/ March),Industry Organisations, Music Week, UK.

(1992/ August), Articles from E.Q. magazine, USA.

(1995), Green Paper on Copyright and Related Rights In the Information Society, Home Taping Rights Campaign, UK.

Seminars.

'A Sample Too Far?' (Tuesday 31st October 1995 10:30 am), part of the Camden Live series of lectures sponsored by Radio 1 FM. Panellists were:

Maria Forte, EMI Publishing

Linda Hyman, MCPS

Rapscallion, DJ, Journalist & Cultural Critic (aka Paul Ryan)

Chair- Horace Trumbridge, MU

Internet Sources.

mailto:[email protected]

http://www.benedict.com ('The Copyright Website')

http://www.cerbernet.co.uk/cdj/ (Website of Cerberus a company whose technology allows transfer of audio files over the internet with payment)

http://www.copyright.com

http://www.io.org/~halvx2/macos/ (The Website of Musicians Againt the Copyrighting Samples)

http://www.law.cornell.edu/treaties.html. (Cornell University's law website containing the texts of several copyright treaties)

http://www.mcps.co.uk/ (The website of MCPS)

http://www.prs.co.uk.html (The website of PRS)

Thankyou to:

Andy Armour, Malcom Carruthers, Frans J.P. de Wit and Linda Hyman at M.C.P.S. for information and literature.

Joseph Cristie at Low Life records label for discussion and feedback.

Alec Cuffey at B.M.I.A. for advice and information.

Dave Horn at L.G.U. for supplying a PRS news letter.

Jane Howard at L.G.U. for assistance and support.

Roseanne Knights at P.P.L. for leads and a particularly thorough effort at research on my behalf.

Jill Low Ph.D for advice and encouragement.

Julie Matthews at P.R.S. for information and literature.

Lorraine Toogood at R.N.I.B. for a guide to copyright clearance.

Kendall Wrightson at L.G.U. for guidance, critisism and general direction.

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Appendix

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