Creative License
California Lawyer

Creative License

The Law and Culture of Digital Sampling

September 2011

Creative License: The Law and Culture of Digital Sampling By Kembrew McLeod and Peter DiCola Duke University Press, 336 pages, $23.95, paperback

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Pablo Picasso once said that "good artists borrow, great artists steal." At least we believe he said it. But who knows if he stole it? In the music industry, the act or art of taking pieces of other artists' music to put in one's own song is known as sampling. On the legal side of the music business, sampling without a license is, strictly speaking, copyright infringement.

In Creative License, Kembrew McLeod, an associate professor of communication studies at the University of Iowa, and Peter DiCola, an assistant law professor at Northwestern University, explore the history of sampling - most particularly within the world of hip-hop and rap - and landmark legal decisions and their impact on music licensing. The book captures much of this history and process by extensively quoting from the authors' interviews with musicians, music executives, and lawyers. Though much of the information from the interviews becomes repetitive, the book is a good guide to the legal complexities of sampling and licensing.

Music buffs will find Creative License a nostalgic look back at many of the greatest hip-hop artists from the 1980s to the present. For example in "White Lines (Don't Do It)," Grandmaster Flash & the Furious Five didn't create the bass line or even the sound that made the song a massive hit with the dance crowd; those came from the song "Cavern" by Liquid Liquid, a little known post-punk band from New York. Public Enemy's groundbreaking 1990 album Fear of a Black Planet (one of my personal favorites), used dozens of samples, mashing together notes, random sounds, news interviews, bass lines, and hard-hitting lyrics to create an amazing sound that few had ever heard.

A chapter on lawsuits looks at how the court's intervention in the practice of music sampling has created some major inconsistencies. For the uninitiated, every sample contains at least two copyrights - for the sound recording and the music composition - which must be cleared to avoid infringement. However, copyright clearance can be a complex and uncertain legal landscape to navigate when the copyrights have different owners and each must give permission for its use. Obtaining all the necessary permissions can take time, money, and often, future royalties from the artist sampling the work.

In the landmark case Newton v. Diamond (388 F.3d 1189 (9th Cir. 2004)), jazz flutist James Newton sued the Beastie Boys for failing to clear a music composition underlying a sampled recording (they cleared only the copyright on the sound recording). The Ninth Circuit ruled that the three-note composition, even though it was looped repeatedly in the song, was a de minimis use, too small to compensate. (I wrote an amicus brief for the appeal to the U.S. Supreme Court in support of Newton's position. The Court denied cert.) However, in another groundbreaking case, Bridgeport Music v. Dimension Films (410 F.3d 792 (6th Cir. 2005)), the Sixth Circuit ruled that it doesn't matter how small a sample is: If you use it, pay for it. That decision essentially removed the de minimis defense for using sound recordings.

The authors also outline the tension between the creativity of a sound collage artist making new music and the interests of the copyright holders and their own limited rights. They suggest changing the system to foster new creation without taking away the right of copyright holders to control and benefit from their work. They provide several alternatives, including voluntary sample-clearing centers (already in practice), legislation to create a compulsory system of licensing and payment for use of sound recordings (similar to the one for composition copyrights), and a tiered system in which small de minimis uses are free to use while medium-size uses are subject to compulsory licensing and larger uses are negotiated between the sampler and the sampled. Although McLeod and DiCola acknowledge the impracticality of implementing such a tiered system, they fail to recognize the most significant problem: the importance of art cannot be measured in size.

Creative License provides a solid explanation of music copyright process and practice and the law for anyone from the legal novice to the full-time music lawyer.

Eric Farber, a partner in Farber & Foote in Oakland, is cogeneral counsel for the Tupac Shakur estate and has handled intellectual property cases for numerous hip-hop and rap artists.

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