Is Music Sampling Theft or Fair Use?

Since the birth of hip-hop, music sampling has been a familiar element of the genre.  Music sampling means taking snippets of previous works and incorporating them into a new beat by layering, looping, or alteration.  In the past 20 years, sampling has become a subject of dispute concerning the legal rights of artists and rights holders due to copyright infringement.

GirlTalkThe recent viral craze of the ‘Harlem Shake’ brought these recurring questions back into the light when producer Harry Rodrigues (better known as ‘Baauer’) was sued for not clearing vocal samples of another rapper, Jayson Musson, and Reggae Town artist Hector Delgado.  Baauer told Pitchfork magazine that he hasn’t made a dime off of the song, and he wasn’t even the one who made the song famous.

Immersed between the cut-and-paste culture of the Internet and the unfortunate realities of copyright laws, this case demonstrates confusion in our legal system and the fuzzy lines of fair use, a provision in copyright law that allows for unauthorized use of copyrighted material.  The current face of the fair use movement would have to be Gregg Gillis of Girl Talk, who mashes up dozens of samples into a single song to recreate an entirely new sound.

Baauer and Gillis fall into the long line of artists who have run into legal battles when they have included fragments of songs into remixes of different recordings.  One of the most prominent cases involved rapper Biz Markie sampling 70’s pop singer George O’Sullivan in 1991.  The court came back with a verdict that began with “Thou shalt not steal”, and even suggested that Biz be criminally prosecuted.  He never ended up getting charged, but the whole fiasco inspired his next album title, ‘All Samples Cleared’.

The Biz Markie case pushed producers to move away from sampling because of the uncertainty involved in clearing samples or being caught using samples without permission.  The costs and labor associated with clearing samples has made the process tedious.  Samples have to be cleared by both the copyright publisher (record labels) and the owner of the actual recording (musician). More recently, musicians started to make use of different maneuvers around the infringement risk, using techniques like interpolation, which means taking a riff or specific group of notes and recreating it to sound exactly the same.

Another case that raised debate concerning the basis of fair use was in 2005 when Bridgeport Music sued Dimensions Films over an NWA sample of an old Funkadelic song.  To the unsuspecting listener, there is no way to distinguish the specific sample used in NWA’s song.  The court’s initial ruling came back in favor of Dimension Films, but they lost on appeal, with another key phrase in the verdict: “if you don’t have a license, don’t sample”.

The Bridgeport ruling sparked a lot of debate about the ethics involved with these type of AudioBoardcases.  Bridgeport Music is actually a one-man corporation that generates revenue by purchasing expired licensing rights with the intention of pressing charges against people who use the song without permission.  Similar to patent trolls, a Slate magazine article coined the term sample troll to describe this whole process.  Bridgeport’s most recent case involves Robin Thicke and his hit song, “Blurred Lines”.

I think current laws inhibit creativity for those who don’t necessarily have the resources to legally clear the samples they would like to use.  While I recognize the need for there to be some sort of compensation for those being sampled, there needs to be a way for us to promote a collaborative environment, where the young artists of our generation are not threatened with legal troubles if they incorporate the music of others into their own work.  Is there a solution where both sides win?

Michael Hudson

4 thoughts on “Is Music Sampling Theft or Fair Use?

  1. I had no idea that the Harlem Shake was “copyrighted!” (Actually, I did not know about any of these other copyright cases, so your article really educated me!) The case with the Harlem Shake really does raise some of the deeper questions you addressed in your last paragraph—Harry Rodrigues didn’t make money off the song or intend to have it be such a big deal, and now he’s being sued. I wish that there was indeed a way where people did not have to fear when trying to be creative or make something new. However, I do still think people have a right to their work, and while in the case of the Harlem Shake, where I would think the original artists would be happy for the publicity, if someone used content I’d created in a bad way or got credit for my work, I’d be pretty upset. Also, I was appalled by Bridgeport Music and their (or, rather, the one person’s) ability to specifically have a business that tries to sue people. That’s something that I think definitely needs to end.

  2. I can understand the composing artist concerns of wanting compensation for having someone else benefiting from “copying their song, IF a cover of a song I wrote hit it big and sold a ton of singles I feel like I would be entitled to at least some of the sales, secondly If someone sampled my song and used it to convey a message that I disproved of (For example a rapper samples my song in his own song in which he objectifies women) I would not want them using my work for they would be altering it to serve a negative function in which I had not attended. However this does not grant the composer to puting hefty copyright protection on his work, so that it makes it nearly impossible for the average musician to sample it,instead The sampling artist should only have to seek approval from the composer to sample the song, and if the song happens to hit it big they would own them a certain percentage of the sales, set by Law

  3. I think that there will always be issues with this subject. Since before I can remember, people have been sampling music, sometimes without them even being aware of it. It is a very loosely defined concept. Often times when I am trying to write original music, I will come up with a basic 4 chord progression on my guitar (something that is used in countless songs) and then I will come up with a vocal melody (which often time will unintentionally sound like another song I’ve heard). Is this technically sampling or some kind of copyright infringement? It kind of seems like it could be! But also, does intent play a part in it? If so, how do you prove intent? There is a ton of blurred lines when it comes to these laws that have been put in place. If you were to ban sampling all together, would you also be ending the peoples rights to a creative process. Then it starts to play into The First Amendment! Many times when I play my favorite songs on guitar, it will morph into a new riff, but it will almost always still have that hint of the original riff inside of it. So is any music wholly original?

    To a certain extent, sampling should be illegal, but where do we draw the line?
    If you say someone “stole your riff” to a song, is that your intellectual property? Or is it something than no one can own?
    It’s as if to say that someone owns the notes themselves on the treble clef.

  4. Mike, I think you bring up good points, but I dont think sampling will ever be illegal like Rob mentioned. Many up and coming producers as well as famous ones remix songs all the time for practice and usually release them for free, like Bauuer. Girl Talk on the other hand I have a problem with. I think that its wrong that Girl Talk pretty much makes a living off other peoples songs. What he does with songs is what club DJs do on the fly and make significantly less money than that millionaire. Like you said, its sad that current laws make it very hard to effectively sample and it would be great for it to be more available for people who can’t get licensing and dont want to make a dime.

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