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.
The 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 cases. 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