Slate's Bizbox
culturebox: Arts, entertainment, and more.

Jay-Z Versus the Sample TrollThe shady one-man corporation that's destroying hip-hop.

By Tim Wu
Posted Thursday, Nov. 16, 2006, at 1:50 PM ET
Jay-Z. Click image to expand.

Last week, a mysterious company, Bridgeport Music Inc., sued hip-hop mogul Jay-Z, accusing him of breaking the law when he recorded his 2003 single "Justify My Thug." The song is an obvious nod to Madonna's "Justify My Love," but she is not the plaintiff. Instead, Bridgeport is suing because Jay-Z did something that is normal in hip-hop: sampling. He took a few notes, looped them in the background, and produced the tune. Bridgeport claims to own those notes, and is demanding a fortune in damages and a permanent ban on the distribution of the song.

Bridgeport is an unwelcome addition to the music world: the "sample troll." Similar to its cousins the patent trolls, Bridgeport and companies like it hold portfolios of old rights (sometimes accumulated in dubious fashion) and use lawsuits to extort money from successful music artists for routine sampling, no matter how minimal or unnoticeable. The sample trolls have already leveraged their position into millions in settlements and court damages, but that's not the real problem. The trolls are turning copyright into the foe rather than the friend of musical innovation. They are bad for everyone in the industry—including the major labels. The sample trolls need to be stopped, either by Congress or by court rulings that establish sampling as a boon, not a burden, to creativity.

Bridgeport is a one-man corporation formed in 1969 and owned by a former music producer named Armen Boladian. It has no employees and no reported assets other than copyrights. Technically, Bridgeport is a "catalog company." Most catalog companies are in the relatively quiet business of licensing rights for television commercials, cover songs, and selling sheet music to interested fans. But Bridgeport has figured out a far more lucrative business model—trolling for sampling cash.

George Clinton is otherwise known as the King of Interplanetary Funk and, along with the late Rick James, the world's most famous funk musician. In the 1970s, Boladian and Bridgeport managed to seize most of the copyrights to Clinton's songs. How exactly they did so is highly disputed. However, in at least a few cases, Boladian assigned the copyrights to Bridgeport by writing a contract and then faking Clinton's signature (as described here). As Clinton put it in this interview, "he just stole 'em."

Bridgeport, if a thief, stole the winning ticket. The Clinton sounds it acquired went on to be among the most widely sampled in the rap music of the 1980s and 1990s. Sampling is as elemental to the genre as beats, beefs, or bragging, and Clinton's sonic creations were a major part of Public Enemy's debut, and were also used heavily by N.W.A., Dr. Dre, Biggie Smalls, and other rap pioneers. Often the sampling is virtually impossible to detect—listen to this sample in this N.W.A song.*

The rise of rap presented a golden opportunity for Bridgeport. After years of demanding fees, in 2001, Bridgeport launched nearly 500 counts of copyright infringement against more than 800 artists and labels. The company, suing in Nashville, Tenn., located every sample of Clinton or other owned copyrights it could find. It took the legal position that any sampling of a sound recording, no matter how minimal or unnoticeable, is still a violation of federal law. Imagine that the copyright owner of The Lord of the Rings had sued every fantasy book or magazine that dared used the words elf, orc, or troll. That gives you an idea of the magnitude of Bridgeport's campaign.

Since 2001, Bridgeport's shotgun approach has led to many dismissals and settlements, but also two major victories. First, in 2005, Bridgeport convinced Nashville's federal appellate court to buy into its copyright theory. In that case, Bridgeport Music v. Dimension Films, the defendants sampled a single chord from the George Clinton tune "Get Off Your Ass and Jam," changed the pitch, and looped the sound in the background. (The result is almost completely unrecognizable—you can listen to it here). The Sixth Circuit created a rule: that any sampling, no matter how minimal or undetectable, is a copyright infringement. Said the court in Bridgeport, "Get a license or do not sample. We do not see this as stifling creativity in any significant way."

Then, in March of this year, Bridgeport cashed in. It convinced a court to enjoin the sales of the best-selling Notorious B.I.G. album Ready to Die for illegal sampling. A jury awarded Bridgeport more than $4 million in damages.

These troll lawsuits may sound unattractive. But is Bridgeport perhaps serving the goals of copyright—fostering creativity—in some less obvious way? One idea is that Bridgeport is more Robin Hood than troll, stealing from lazy, rich rappers like Jay-Z to channel money back to deserving artists like George Clinton. That argument would make some sense if making rap music were easy, or if Clinton or other artists were in some way the beneficiary of the lawsuits. But neither is true. Bridgeport and other trolls do take from the rich. But they keep the money.

If the benefits are abstract, the costs imposed are obvious. Sample trolls have already changed the face of hip-hop. Early rap, like Public Enemy, combined and mixed thousands of sounds in a single album. That makes sense musically, but it doesn't make sense legally. Thousands or even hundreds of samples, under the Bridgeport theory, mean thousands of copyright clearances and licenses. Today, Public Enemy's breakout album, It Takes a Nation of Millions to Hold Us Back, would cost millions to produce or, more likely, would never have been made at all.*

The kicker is that while sample trolls are bad for artists, they're also bad for mainstream record labels. Record labels want to get out new music at minimum cost. But if clearing rights in the Bridgeport world costs a fortune, production becomes that much more expensive, and innovative music that much riskier a bet.

What, if anything, can be done? In the big picture, copyright must continually work to ensure that the basic building blocks of creativity are available to artists and creators, especially as new forms of art emerge. We already know what this means for novelists: freedom to use facts, borrow stock characters (like Falstaff) and standard plots (the murder mystery). For filmmakers, it means the freedom to copy standard shots (like The Magnificent Seven's "establishment shot"). For rap music, it means the freedom to sample. Rap's constant reinvention and remixing of old sounds makes it what it is; now is the time for the copyright system to get that. Vibrant cultures borrow, remix and recast. Static cultures die.

Legal solutions to the sample-troll problem are relatively easy—much easier than fixing the patent-troll problem. First, there's only one appellate court, the 6th Circuit, that takes the ridiculous position that any sample, no matter how minimal, needs a license. Most copyright scholars think the decision is both activist and bogus—in the words of leading commentator William Patry, "Bridgeport is policy making wrapped up in a truncated view of law and economics." Other courts can easily counter Bridgeport. They just need to say that the infringement rules for sampling are the same rules that apply for the rest of copyright. Dumbledore may resemble Gandalf, but he's no infringement. Similarly, if you can't even recognize the original in a sample, it shouldn't violate federal law to use it.

Congress could also easily act against the sample trolls. All that is needed is a "sampling code": a single section of the law that declares the usage of some fixed amount of a sound recording, say, seven notes or less, to be no infringement of the copyright law. That would give artists a simple rule to live by, while still requiring licenses for big samples that would compete with the original. It's a win-win scenario. With a single line of code, Congress can make this problem go away.

In the end, it's probably wrong to suggest the sample trolls are evil or hate rap music. The trolls simply look for profit, like any business, and are rational and predictable, like the mold that grows on rotten meat. None of these problems would be quite so severe if artists actually controlled their own copyrights. George Clinton's copyrights end up blocking sampling, when he himself favors sampling. "When hip-hop came out," said Clinton in this interview with Rick Karr, "I was glad to hear it, especially when it was our songs—it was a way to get back on the radio."

Copyright is supposed to be the servant of artists, but today that is all too often just a pretense. The vast majority of the nation's valuable copyrights are owned not by creators, but by stockpilers of one kind or another, and Bridgeport is just a particularly pernicious example. We need better devices to keep the control of the most valuable of artist's rights with artists. For, to paraphrase Judge Learned Hand, copyright was born to protect and liberate musicians, but it all too often ends up enslaving them.

Click here to see the complaint in the Jay-Z case.

Correction, Nov. 16, 2006: The article originally and incorrectly stated that It Takes a Nation of Millions to Hold Us Back was Public Enemy's first album. In fact, it was the group's second. (Return to the corrected sentence.)

Correction, Nov. 17, 2006: The article also originally misidentified a sample as from a Public Enemy song—it was from an N.W.A. song. (Return to the corrected sentence.)

Print This ArticlePRINTDiscuss this in The FrayDISCUSSEmail to a FriendE-MAIL
Share on FacebookPost to MySpace!Share with MixxDigg ThisShare with RedditShare with del.icio.usShare with FurlShare with Ma.gnolia.comShare with SphereShare with Stumble Upon
Tim Wu is a professor at Columbia Law School and co-author of Who Controls the Internet?
Photograph of Jay-Z by Kristian Dowling/Getty Images.
Join the Fray: our reader discussion forum
What did you think of this article?
POST A MESSAGE | READ MESSAGES

Remarks from the Fray:

In "modern" society we have long ago thrown out the window the idea that most workers in any real sense "own" what they produce. We are a nation of employees, who labor for wages. (or, as Patrick Henry would have called us, slaves).

And yet we hear the lament: "We need better devices to keep the control of the most valuable of artist's rights with artists." Why, exactly? Are "artists" some special class that "deserves" special treatment? If an artist is working for another they may not own the copyright any more than a factory worker owns title to what they make. If they do own the copyright, the fact that a copyright can be sold is one of the most valuable aspects of it. [...]

The author seems to propose that "hip hop" is special and a place where everyone is welcome to 'grab and create' as they please. Maybe 'back in the day,' but you may find some of the most powerful names in Hip Hop now opposing sampling -- or at least sampling of *their* work. Not only do they have the money to pay license fees, but when they do something original you can bet your keister they don't want to be giving it away for free. A lot of Hip Hop is now "part of the system", and I think there is more of a clash *within* the business/culture than the article indicates.

--fozzy

(To reply, click here.)

Copyright law has been radically over-extended in recent decades. [...] Copyright law started out as a tool for making sure there was enough financial incentive for artists to practice their craft. That goal was lost sight of, and now we face the absurdity of lawsuits [...] effectively transferring wealth from the general public to a handful of big corporations and wealthy heirs to large fortunes.

Meanwhile, nothing new has been entering the public domain for years. [...] The irony is that the very corporations that are now pushing to over-extend copyrights were founded during an era of greater creativity made possible by slimmer copyright protections. [...] Many of Disney's movies were based on material that had moved into the public domain prior to the current era of practically interminable copyrights. Walt Disney didn't write "Sleeping Beauty" or "The Jungle Book," or "Snow White," nor did he have to pay big corporations that kept the rights to those old stories in their portfolios. He built on freely-available stories others had written in earlier eras. Then he orchestrated some of his movies with tunes based on public-domain classical pieces. How sad that such creativity is being shut down today by the very law that's supposed to encourage creativity. A modern-day Walt Disney would lack the treasure trove of relatively recent public-domain material to work with.

Of course, you won't often see the overall scope of copyright law criticized by journalists. They may feel comfortable going after sampling trolls, since it's outside their own business. But journalists, as content-producers themselves, at least theoretically benefit from the absurd bloat of current copyright law. So their sympathies do not tend to lie with the general public on this one.

--Arkady

(To reply, click here.)

Hip-hop was invented on turntables. Records provided the original musical accompaniment because turntables were the best instrument on-hand. A big part of hip-hop's revolution was to transform recorded music back into live music.

Note that this was done by kids in the Bronx in the '70s. Jay-Z, while maybe keeping to the spirit of the music, is worlds apart from it when he releases an album with the full momentum of the recording industry behind him. You can walk around Times Square and get offered mixed tapes from hopeful producers and rappers. "Justify My Thug" ain't that!

I think we should tolerate a double-standard here: If the sampling in question is done for personal, or at least not for a huge expected profit, it should be allowable. If Warner Music is marketing your release simultaneously in 60 countries worldwide, hire musicians to at least copy the sample.

The point is to draw a distinction between the right of the student or amateur to remix copyrighted material and the platinum-selling recording artist. The pro should have to earn his credibility by at least attempting to write music that future generations might find worthy to sample.

--yggy

(To reply, click here.)

There was a time when sampling was not only allowed but was actually seen as a real art form, when dudes like Mix Master Mike (Beasties) and Terminator X (Public Enemy) were revered as the masters of the craft, when the term DJ meant something else entirely, something substantive, productive, creative.

Listen to just the open of "Fight the Power", for example. The layers, the elements, the subtleties of off beats, vocal hits, old school funk and new school punk. It's incredible that not only did they come up with these beds in the studio from scratch, but that the DJ, if he's old school (like Mike and X), has to recreate those beds during live shows. It's nothing short of a virtuoso musical performance.

--switters

(To reply, click here.)

Record producers have always ripped off arranging ideas, riffs, intros, sounds, etc. from previous recordings. That's a far cry from what hip-hoppers do: re-recording a moment from someone else's recording, a moment that was very likely thought out and labored over by the producer, the musicians and the engineer on the original date. In the case of a drummer's particular groove or a lick by, say, Jimi Hendrix or a vocal shout by James Brown, you're talking about stealing a musical signature that took a lifetime to produce.

This guy may be a sleaze, but samplers who don't compensate the original artists are plenty sleazy too.

--penmark

(To reply, click here.)

(11/18)

Washington Post
The Washington Post
OPINIONS
Assessing Sarah Palin
| Newt Gingrich, Grover Norquist, John Podesta and others weigh in.
Colbert King: She's No HillaryEditorial: Is She Ready for This?
PLUS » PostPartisan: Quick Takes from Opinions