The Fair Use Of Hip-Hop Sampling In Copyright Law

Sampling isn’t about hijacking nostalgia wholesale. It’s about inserting yourself into the narrative of a song while also pushing that story forward.

—Mark Ronson[i]

What Is Sampling?

Sampling is procedure that transfers the analog signal from an original song to a set of binary numbers representing an audio waveform.[ii] The signal is then put into a new work. As a result, we can separate sampling into approximately three parts.

  1. Transfer of the original sound to digital waveform.
  2. Edit of the sample[iii] in digital signal.
  3. Enlargement and playback of the digital signal by an amplifier.

Around 1981 the E-mu Emulator, the first pure sample, was developed and put on the market in the United States. This digital device is able to store, deal, and replay any inputted sound. Greg Tate, a music commentator has described it:

“A song craft from chipped flecks of near-forgotten soul gold. On Nation a guitar vamp from Funkadelic, a moan from Sly, a growl abducted from Bobby Byrd aren’t rhythmically spliced in but melodically sequenced into colorful narratives. Think of Romare Bearden.”[iv] Nevertheless, because people are unfamiliar with the skills required to sample, courts often believe it is a duplication without creation or derivate works with less creation.

The Formation of African-American Music

In African-American music,[v] people will notice a uniquely strong groove, which is the main axis of African music and more important than the melody and lyrics. The rhythmic patterns usually consist of different layers of fixed, repetitive time lengths. This main element can consist of any rhythmic figures played in the same time. Hanson Kwabena Nketia calls this style “multilinear rhythm.”

The other characteristic of African music is its heterogeneous sound. Olly Wilson[vi] has stated that the reason why African music has a powerful sound and unique texture is the vivid combination of timbre that make up a complex and full sound. Unlike classical music, composed of similar instruments, African music is composed of instruments of varying sounds and textures. As a result, we can use those two characteristic to create a room of sound.

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Economic and Marketing Analysis of Sampling

According to the market segmentation rule,[vii] we divide different kinds of music into small markets. The form of each music type is based on its specific time, social, and geographic location. Hence, in the past, people had few opportunities to hear the music in other regions. Today, people in different locations can and do experience music from all over.

As part of the market segmentation rule, people can divide the type of resources by excludability and rivalry into four types. However, music works are non-rivalry and non-excludability resources. Non-rivalry resource means no matter how much people use this resource, the value of it will not decrease (i.e. the marginal increase in cost is 0 with each additional user). Non-excludability resource means people cannot exclude others from using the same resources.[viii] In sum, these kinds of resources are public goods. Copyright should treat them with more tolerance and less restriction.

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Sampling in Copyright Law (Only in Fair Use)

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The main goal of copyright is to encourage the development of culture, science, and innovation. If the government is overprotective of creators or users, this will damage the balance of the market. Hence, 17 U.S.C. Article 107, fair use, was enacted to allow people to use protected work considering the following factors.

Purpose and character of the use: This factor should consider both convertibility and purpose of the use. In Campbell v. Acuff-Rose Music, Inc.,[ix] 2 Live Crew added a new expression, meaning, and message to its parody song, Pretty Woman. The Supreme Court held that when a duplication is a parody, it is a valuable criticism, which is beneficial for the purpose of copyright law. Whenever the public benefit is more than the private benefit, the latter’s right should be restricted. The justices also mentioned that even the Sony case[x] promulgated a rule that every commercial use of copyright protected good may cause an infringement. However, if all commercial use of copyrighted material is denied, then fair use under §107 would be useless.

Nature of the copyrighted work: This factor examines the creativity of original works. Based on “at least some minimal degree of creativity,” the Pretty Woman parody was composed with high creativity.

Amount and substantiality: In Newton,[xi] the court cited Worth v. Selchow & Righter Co.[xii] to hold that the sample users’ mere use of a small part of the original in the samplers’ music still constituted an infringement. This holding is unfair for many samplers. Other artistic fields like image art, have totally different standards. In Ringgold v. Black Entm’t Television,[xiii] the defendant used an artist’s images in scenes of a television show. The court held that substantial similarity in appearance is a major factor. In my opinion, when the court would like to examine the substantial similarity of sampling cases, it is fairer to weigh both the sample user’s and original artist’s sides.

Effect upon work’s value: This factor considers the market, including the licensing market, affected by sampling. In Campbell, the evidence showed that even though 2 Live Crew sampled the song, there are still other rap singers who were negotiating the license of this song with Acuff-Rose Music, Inc. Even a well recognized sampling code of ethics[xiv] blames the producers’ use of the sample, which other producers used, and affirms a producers’ skill of flipping. In other words, sampling ethics allow producers to use samples, but advises novel convertibility. Besides, as I mentioned above about economics, consumers will have more opportunities to access the song, which will be beneficial to the original song’s market.

Pei-Heng, Wu

LL.M. Candidate, Class of 2016

Berkeley School of Law (Boalt Hall)


[i] A music producer and DJ. His production credits range from Amy Winehouse to Paul McCartney — ace DJ, musician and producer Mark Ronson has lived recent music history from the inside out.

[ii] See Todd souvignier, Loop and Groove: The musician’s Guide to Groove Machine and Loop Sequence, Hal Leonard Corporation, 18-19(2003)

[iv] A prominent American artist, Romare Bearden created dazzling work celebrating the black American experience, which he integrated into greater (predominantly white) American modernism. He usually uses collage to express of his works.

[v] Soul, Blue, Jazz, Rhythm and Blue, Funk, Hip-Hop, Raggae, House…

[vi] Olly Woodrow Wilson, Jr. is a prominent American composer of contemporary classical music, pianist, double bassist, and musicologist. He is one of the preeminent living composers of African American descent.

[vii] Market segmentation is a marketing strategy which involves dividing a broad target market into subsets of consumers, businesses, or countries who have, or are perceived to have, common needs, interests, and priorities, and then designing and implementing strategies to target them. Market segmentation strategies are generally used to identify and further define the target customers, and provide supporting data for marketing plan elements such as positioning to achieve certain marketing plan objectives.

[viii] Robert H. Frank, Ben S. Bernanke, Principles of Micro Economics. (2007)

[ix] Campbell v. Acuff-Rose Music (92-1292), 510 U.S. 569 (1994)

[x] Sony v. Connectix, F.3d, 1 Cal. Daily Op. Serv. 1255, 2001 Daily Journal D.A.R. 1611 (United States Court of Appeals, Ninth Circuit, 2000)

[xi] Newton v. Diamond 388 F.3d 1189 (9th Cir. 2004)

[xii] Fred L. Worth v. Selchow & Righter Company, Horn Abbott, Ltd., 827 F.2d 569 (9th Cir. 1987)

[xiii] Ringgold v. Black Entm’t Television, Inc., 126 F.3d 70 (2d Cir. 1997)

[xiv] Murray Forman, That’s the Joint!: The Hip-Hop Studies Reader, 610, Routledge(2004)

 

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