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jurisprudence: The law, lawyers, and the court.

Diddy Could Save SamplingWhy hasn't he or any other big-name rapper even tried?

By Anthony Falzone
Updated Friday, Nov. 2, 2007, at 7:16 AM ET
P. Diddy. Click image to expand.

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.

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Anthony Falzone is the executive director of the Fair Use Project and a lecturer at Stanford Law School.
Photograph of Sean "Diddy" Combs by Andrew H. Walker/Getty Images for Leviev.
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Remarks from the Fray

The attorneys for these artists were not hired to blaze new legal trails for hip-hop. They were hired to win the particular case their client had at the moment. You could argue that they should put the interests of a wide community before their own legal success, but until they do their attorneys will focus narrowly on the task at hand--winning the case. And that usually means following well worn paths. Once again, throwing in an untested legal theory/argument is just begging an appeals panel to shoot you down in flames.

Professors like bold cases that strike off in clearly new direction, but practitioners are usually aiming much lower. An unpublished, commentless, summary judgment in favor of the client would be good enough. What I wonder is why no music organizations have yet sponsored any "test cases." Indeed, is there a 'community' consensus on how the "fair use doctrine" ought to be applied to hip-hop? If there is no such consensus, then that is one reason a lawyer would try and avoid the whole issue. If you try and make your client's case into something groundbreaking, you are inviting everyone and their dog to file amicus briefs explaining to the court why they should rule against you.

--fozzy

(To reply, click here)

The Beastie Boys case mentioned briefly is even more complicated than the others, because while they actually paid ECM records a licensing fee to use a three-note sample of jazz musician James Newton soloing on flute, Newton claimed that he was owed money as "composer" of those three notes. It was a case where the courts had to determine just how many notes from a given piece of music you can play before you are playing what would be recognizable as that composition. As the sequence of notes in question had certainly appeared in music before Newton played them in his solo, his claim was struck down. If Newton had won his suit, every jazz musician quoting two bars from a Charlie Parker solo would henceforth owe Charlie Parker's estate royalties (and Charlie Parker's estate would owe for any notes Parker borrowed from his predecessors). In short, it would be madness, and not just for jazz musicians.

--Radiotone

(To reply, click here)

(11/5)