Download Transformation or transformative use

Sampling in Music
How Do We Sample?
Music Copyright
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Music has two separate copyrights:
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1. Composition (1831)
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2. Sound recording (federal protection, 1972)
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Both these rights are typically transferred to
record labels or publishers (corporations)
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These rights can be transferred through
mergers and acquisitions
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Melody and lyrics are protectable as
compositions; not RHYTHM!!! Not drums
Pay and Permission
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A work with a sample is usually a derivative
work
Master use license
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Obtain from record label and/or recording artist or
whoever owns the “master” recording copyright
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Remix clause in most recording contracts (moral?)
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Up front ad hoc fee and running royalties
Mechanical license (compulsory license)
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Obtain from publisher/composer/songwriter
They collect a % of publishing royalties (25%-100%)
on new work; running royalty: called “mechanicals”,
Who Gets Paid?
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Record labels who own the master recording
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Recording artists get a % (50%, but
contractual): must have “recouped”
advance...points=royalty rate. 20pts=20%
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Publishers who own the publishing
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Songwriters who get publishing royalties
(usually a 50-50 split, or songwriter sees 75%)
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Anybody who is, under law, an “author” gets $
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Non-authors who contribute don't see any
money (i.e. session musicians: Clyde
McLeod
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Suzanne Vega
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Clyde Stubblefield
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George Clinton
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“Walk This Way”
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“The Takeover” and Alan Lomax
PROs and Trade Organizations
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RIAA: protect IP, lobby, research, certification
for recording industry Big 3
MPAA: protect IP, lobby, research, film rating for
film for Big 6 studios
ASCAP: collect performance license fees;
royalties
BMI: collect performance license fees; royalties
SESAC: collect performance license fees;
royalties
SoundExchange: PRO for performance and
Different Uses?
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Transformation or transformative use: adds to
the original work in a way; a progression or leap
forward that benefits public
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Derivative: translation, adaptation, etc.
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Create new meaning or new expression
Uses an original work w/out building upon it
Transformative uses are likely “fairer” uses in
court because they directly critique/build upon
the sampled work instead of using it verbatim
Defenses?
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Fair Use: P&C, Nature, Qual/Quant, Harm
De minimis: copying is so small is doesn't
warrant a fair use analysis
You can't say “I tried to license,” “they didn't
respond,” etc. LICENSE or its infringement
“Lay audience”: would members of an audience
of regular people recognize the original work in
the new work.
Interpolation
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Pay compulsory mechanical, perform/record
song, and sample performance
Grand Upright v. Warner (1991)
VS
Grand Upright Cont'd
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“Everybody else is doing it”
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“We asked and they never responded”
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Rule: In favor of O'Sullivan
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“Thou shall not steal”
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Sig: Unauthorized sampling is infringement;
could punish under 17 USC 506 (criminal, not
just civil)
Campbell v. Acuff-Rose (1994)
VS
Campbell Cont'd
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Supreme Court
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Ruling: in favor of 2 Live Crew, parody of
“white bred original”
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Sig: Commercial parody can be fair use
Bridgeport v. Dimension (2005)
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Sample Troll, Catalog Company
"Get a license or do not sample.
We do not see this as stifling
creativity in any significant way."
Sig: Eliminates de minimis
Bright-line test=any unlicensed
sample is an infringement
$4M from Ready to Die (2006)
Good Copy, Bad Copy
Sample Troll
Newton v. Diamond (2003)
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1992, “Pass the Mic”
sampled James Newton's
“Choir”
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Beastie Boys licensed the
sound recording, but not
underlying composition (3
notes / 6 seconds)
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Newtown sold the rights to
his performance of the
composition, but kept rights
to composition
De Minimis
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“The law does not concern itself with trifles”
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Not enough used to warrant infringement
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A possible defense for defendant
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A possible claim by plaintiff
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Didn't change it enough
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Transformation was minimal
Not a defense for sound recordings anymore;
can work with compositions
Lay Audience Test
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Would a group of regular people hear and
know the original in the new containing the
sample?
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Industries use musicologists to determine this
$ampling's Value
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Sampling gave way to a cottage industry:
sample clearance
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Essentially, a third party company the obtains
licenses and permissions on recordings and
publishing
Revenue generated???
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Sample clearance
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Revitalizing careers of old artists
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Establishing, or re-establishing market for
original
Compulsory Sample License
???