Sean "Diddy" Combs is one of the most successful (and richest) men in the music business. He has many to thank for this success. When he launched Bad Boy Records, the Notorious B.I.G. was one of the first artists on the label, and it was B.I.G.'s 1994 debut album, Ready To Die, that brought Combs his first platinum hit. The album was lauded for B.I.G.'s vocals—and for its underlying layers of sound, many of them built on "samples," or short snippets, from previously recorded songs.
By the time B.I.G. recorded Ready To Die, sampling had come to define hip-hop. The music of artists like Public Enemy and the Beastie Boys was built upon the inspired combination of samples, some recognizable, many not, to create brand-new sounds. Sampling originated among the DJs of New York City, who began looping and extending drum breaks while adding rap vocals, scratching, and other improvisations—all, of course, without permission from anyone. With Combs as his producer, B.I.G. followed in this tradition and wove sample upon sample into the tracks he recorded.
But if sampling has been a critical component of hip-hop music for three decades, its legality remains surprisingly unclear—and artists and producers like Combs share the blame for that. Their failure to defend sampling when it has been challenged in court has contributed significantly to the legal uncertainty that surrounds the technique, and now extends to the title track from Ready To Die.
Sound recordings are subject to copyright protections. That means the copyright owner holds the exclusive right to reproduce the recordings. Because sampling involves reproduction, every sample presents a potential copyright violation, unless the sampling is authorized by the copyright holder.
Copyright law, however, creates these exclusive rights to serve a larger goal—to provide incentives that spur the creation of new artistic works. When one artist uses the copyrighted work of another to help create something new, these goals collide. This tension is supposed to be resolved in large part by copyright's fair-use doctrine, which protects the right to use copyrighted content in new and transformative ways, so long as you use small amounts and do not cause too much harm to the market for the original work. It is fair use that protects the right to make musical parodies (as 2 Live Crew demonstrated with its parody of Roy Orbison's "Pretty Woman") or to incorporate a photograph into a visual art collage in a way that expresses new meaning (as Jeff Koons demonstrated recently with his work Niagara).
Viewed through the lens of fair use, music sampling should fare well. It tends to be transformative, uses short (often unrecognizable) snippets of the original work, and creates little possibility that the new work will plausibly substitute for the old. At the very least, the fair-use doctrine should play a central role in determining the legality of sampling.
But in practice, the fair-use defense is almost nowhere to be found in music-sampling cases; it's not even discussed. That may be partly because sampling got off to a rocky legal start. The first ruling to pass judgment on sampling came down in 1991 and involved Biz Markie's rendition of "Alone Again," which borrowed the entire melody from Gilbert O'Sullivan's original song of the same name. Markie took 20 seconds of the melody, looped it, and added his own vocal track on top. His new song felt uninspired and sounded like simple theft, and that's what the court called it. The judge hearing the case did not consider fair use or any other possible defense to the allegations that Markie infringed O'Sullivan's copyrights. On the contrary, the court treated the copyright violation as a foregone conclusion and referred Markie to the U.S. attorneys' office for criminal prosecution. So, while the Beastie Boys, Public Enemy, and many others were using samples as the raw material to weave the new fabric of hip-hop, it was the comparatively uninspired "theft" of Biz Markie that drew sampling's first legal ruling.
Courts have since backed away from this outright hostility, and the recent cases that address the legality of music sampling reach differing conclusions. But none of the leading cases so much as considers the applicability of the fair-use defense.
A lot of the blame for that lies with artists, labels, and producers who fail to raise the fair-use defense in the first place. And that brings us back to Sean Combs, B.I.G., and Ready To Die. A recent decision from the U.S. Court of Appeals for the 6th Circuit held Bad Boy Records and other defendants liable for copyright infringement based on a five-second horn sample from "Singing in the Morning" by the Ohio Players. That sample (which most listeners wouldn't recognize) was used in the title track on Ready To Die. Not surprisingly, B.I.G.'s track sounds nothing like "Singing in the Morning." This all seems to fit very well into the fair-use doctrine: B.I.G. used a short piece of one song to make a completely new song with a completely new sound, which could not possibly substitute for the original recording. Here is an excerpt so you can hear for yourself—listen for the horns.
Since Combs and the late B.I.G. (real name Christopher Wallace) are giants of hip-hop music, and B.I.G.'s music (produced largely by Combs) is laden with samples, you'd think Combs and his label would rise to defend the legality of sampling and the distinctive creativity it spawns. Yet the fair-use defense is nowhere to be found in the 6th Circuit decision. Apparently, the defendants didn't raise it at all.
That call did not shake out well for Combs and his label. Bad Boy Records and the other defendants got hit with a $4 million verdict in the trial court, which also halted sales of the album. (It has since been rereleased with the sample removed.) On appeal, the 6th Circuit knocked down the damage award, but left in place the determination that the defendants were guilty of copyright infringement.
Combs is not alone in his failure to bring fair use to the court's attention. Although the Beastie Boys successfully defended their right to sample a three-note flute sequence in one of their songs a few years back, they too failed to pursue the fair-use defense in that case.
Why would Combs, one of the biggest names in hip-hop, fail to defend sampling? Maybe it was simply inadvertence. Maybe it was a strategic decision (albeit a very bad one, as it turned out). Or maybe it was more calculating. Combs and his label can afford to pay for samples. Many aspiring artists and their fledgling labels—the next generation of would-be moguls hungry to unseat Diddy—cannot. Maybe Diddy cares more about the benefit of reduced competition than defending the work of the artist and the technique that helped create his empire. Tell us, Diddy, what were you thinking?