Slate's Bizbox
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

(Continued from page 1)

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?

VIEW AS SINGLE PAGE
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
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.
Join the Fray: our reader discussion forum
What did you think of this article?
POST A MESSAGE | READ MESSAGES

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)

Washington Post
The Washington Post
OPINIONS
Let the Oil Deals Flow
Raad Alkadiri | Congress should not interfere in the oil industry's contract negotiations with the Iraqi government.