Sampling and the law: where do you stand when you plug your record deck or CD player into your sampler? David Bradwell investigates the legal position and the attitudes of the music industry.
Since the arrival of sampling and the success of records using cut-ups and scratches, the English copyright laws have been shown to be completely inadequate.
WHEN M/A/R/R/S SAMPLED Stock, Aitken & Waterman's 'Roadblock' for their classic 'Pump Up The Volume', it signalled the start of one of the most important test cases in the legal history of music. On one side, PWL (and others) are arguing that their copyright has been infringed, on the basis that part of their songs were used without their consent. On the other side, 4AD records argue that this is not the case, and that what M/A/R/R/S did was technically legal, due to a loophole in the copyright law.
Since sampling was introduced, the question of its relationship to the copyright legislation has become one of the key areas of musical law. It began when drum sounds were first lifted from other records - witness riffs from James Brown's 'Funky Drummer' or Phil Collins' distinctive snare sound. In recent years, the mixing, scratching techniques pioneered in New York have started to become part of the same issue. Sampled loops have become the foundation of completely new tracks, such as 'Theme From S-Express', and the rest, as they say, is history.
Running parallel to this debate are the older questions of intellectual copyright and plagiarism. In the past, legal cases have involved George Harrison's 'My Sweet Lord' (which he lost) and Vangelis' 'Chariots of Fire' (which he won). Coming up to date, has anyone spotted the similarities between Martin Stephenson and the Daintees' 'Wholly Humble Heart' and Steve Miller's 'Take The Money And Run'? Neither, I suspect, has Steve Miller.
In the courtroom, a musicologist is usually consulted to determine whether or not musical ideas have been plagiarised in the eyes of the law. Technology itself has been used to identify the use of sampling by analysing the soundwave equivalent of a finger-print of the two works. Outside the studio, some musicians argue that no idea can be genuinely new as everyone is influenced by what they've heard.
From this, arguments have arisen over which is worse - plagiarism or sampling. Sampling advocates would argue that a sample credits its source. So sampling is "honest" about its origins, and records built up from samples are capable of being as fresh and innovative as those created using "conventional" instruments. Plagiarism, on the other hand, can be interpreted as using an idea in a less honest way. Having said that, it takes musical ability to plagiarise, while it takes technical knowledge and ability to use a sampler.
And this is the argument that certain producers use to defend themselves when accused of stealing themes, riffs or chord progressions from obscure records or records from other countries.
The current copyright laws are set out in the 1956 Copyright Act and the existence of legislation on the subject would seem to put it beyond legal, if not moral, question. Part 1, section 1.1 of the Act reads:
"In this act, copyright in relation to a work, except where the context otherwise requires, means the exclusive right by virtue and subject to the provisions of this act to do, and to authorise other persons to do, certain acts in relation to that work in the United Kingdom or to any country in which the relative provision of this act extends.
"In accordance with the preceding subsection, the copyright in a work is infringed by any person who, not being the owner of the copyright, and without licence of the owner thereof, does, or authorises another person to do any of the said acts in relation to the work in the United Kingdom or to any other country in which the relative provision of this act extends."
Part 1, section 2.5 continues: "The acts restricted by the copyright in a literary, dramatic or musical work are: reproducing the work in any material form, publishing the work, performing the work in public, broadcasting the work, causing the work to be transmitted to subscribers to a diffusion service, making any adaptation to the work and doing in relation to an adaptation of the work any of the acts specified in relation to the works above."
Basically this means that a copyright owner has to grant permission for the use of his work. An element of confusion arises later in the act, however, with part 6, clause 49: "Except insofar as the context otherwise requires, any reference in this act to the doing of an act in relation to a work or other subject, matter, shall be taken to include a reference to the doing of that act in relation to a substantial part thereof."
It's that phrase "substantial part" which causes the difficulties. It goes on: "Any reference to a reproduction or adaptation or copy of a work or a record embodying a sound recording shall be taken to include a reference to a reproduction, adaptation or copy of a substantial part of the work or a record embodying a substantial part of the sound recording as the case may be."
It is the vagueness of the wording here that has given people the idea that sampling a few seconds or, for example, four bars of music is insubstantial, and therefore permissible by law. There is no clear definition of "substantial", and sampling has brought to the forefront the weakness of the existing definition. Currently there is a new copyright bill going through Parliament. Curiously, the wording in this section hasn't been changed. Various different organisations are currently trying to table amendments to this section to resolve the confusion.
Graham Churchill, Commercial Operations Controller of the Mechanical Copyright Protection Society, spoke to Music Technology about his company's involvement.
"Sampling is stealing, of that there is no doubt, and I think the M/A/R/R/S case will be the test to establish the correct definition of 'substantial part'. What worries me is the scale that it has grown to over the last few months and the effect it is having on the rest of the world. There is a knock-on effect with some of these records which are very successful and become world-wide hits. It affects an awful lot of people as well as the original copyright owner. There is a situation in place, of licences and exclusive licences and sub-publications throughout various territories, with impacts on those people too. I would like to see it legitimised, and the only way I could see it legitimised is by seeking the permissions in advance. If you're not given them, I'm afraid you must respect that, and not try to do it illegally."
AS YOU MIGHT expect, the Musicians' Union has a lot to say on the subject of sampling - some of which would appear to be in direct conflict with their members' interests. In a recent article for the Union magazine, General Secretary John Morton wrote: "...the view that has prevailed (regarding a sampler) is that this instrument was merely one of a whole family of devices that can be used both to the advantage and disadvantage of musicians. Balances inevitably have to be struck between the artistic (and economic) freedom of one (union) member to use technological developments and the right of other members to have their work and employment prospects respected. Putting aside questions about artistic merit, it would seem reasonably clear that sampling should demand the consent of all those who created the original recording. Recordings of this type can raise, it is true, some questions under the present copyright law, which requires the portion of a work, or recording, to be 'substantial' before the rights in it are considered to be infringed. This is why the Union is seeking to modify the copyright legislation now going through Parliament, both to clarify this matter and to afford better protection to copyright and performers' rights.
"This type of sampling is not, however, our main concern. It seems likely that recordings of this type will be of limited interest, lacking, as they do, any central creative element. More significant is the use of instrumental sound samples as inputs to synthesisers. A musician may spend many years developing an instrumental sound. That sound is an essential part of the professional service that he or she offers to the public. It is extremely difficult to judge what the price would be - or, indeed, if there should be any price at all - for providing that sound for unlimited use by someone else.
"The problems become even more involved if the sounds are taken without consent. Although the legal position is not simple, our position as a Union is simply that one member should not misappropriate the work of another musician."
According to Chapman, the amendment everybody is looking for in the new act is to use the word "distinctive" to define substantial. The alternative would therefore read: "a substantial part includes a significant or distinctive part of any work." That, they feel, would delineate the problem they are now dealing with.
Another professional body involved in the issue, The British Copyright Council, were so eager to put their position forward that they offered to charge us for a "professional consultation". We gracefully declined. Instead, chairman Dennis DeFreitas sent a photocopy of an article from Billboard written by US law attorney Bob Bernstein, claiming it reflected his company's position. In it, Bernstein says "...almost all musical works are, to some extent, derivative. The basic distinction between uncopyrightable ideas (a particular sound, standard phrase, musical style or rhythm) and protected expression (an original combination of sounds, notes, phrases, harmonies or rhythms, or a particular recorded performance embodied in a sound recording) must inform the debate over when it is and is not appropriate to sample sounds in the process of creating a new musical work. The fact that digital sampling now enables us to pluck sounds from the air or from other sound recordings does not destroy the public domain nature of the basic ingredients of musical expression. The music industry needs time to develop aesthetic and ethical standards for this new art form before asking judges to enter the recording studio."
The MCPS's Graham Churchill believes other, similar, issues have been brought about by the increase in the popularity of sampling. For example, playing sections of one record over another to combine different drum patterns, or a drum pattern from one song with a melody from another, brings up the problem of division of royalties, and deciding if a ten-second section of one record is more important than a ten-second section of any other. Despite his obvious objections to samplers, I asked Churchill if, perhaps, he thought some of the records that have been sampled were subsequently more successful than they would otherwise have been. Ofra Haza's 'Im Nin' Alu' donated a vocal line to the Coldcut remix of Eric B and Rakim's 'Paid in Full' - and then went on to be a Top 20 hit in its own right. Coincidence?
"A lot depends on whether you think the principle of a record getting into the charts is the seal of approval of its success", comments Churchill. "You have an awful lot of records that, perhaps, would sell a lot of copies without necessarily being in the charts at any particular time. There are some albums which have sold year upon year upon year and have probably sold more than a single which might be in the charts for two weeks and then drop out again. I'm not too sure it's the right measure to use, and I'm not sure it's the right medium to use in any case - there's far too much talk about trying to get chart potential which is fundamentally to the detriment of the industry overall."
LETS TAKE STOCK. If you own a sampler, and have recorded a song with riffs "borrowed" from others, all is not lost. The easy way around the copyright problem is simply to ask permission from those who hold it. But that's not necessarily as easy as it sounds.
To begin with, we'll assume that the work sampled is in the public domain - the original copyright has expired. You can then try to secure your own copyright on it by arguing that your adaptation is suitably different from the original. (Although realistically, the best you can hope for in this case is a reduced royalty.) If a copyright does exist, and you're sampling from a record (or tape, CD, DAT...) there are two separate copyrights: the copyright of the sound recording and the copyright of the musical work. The sound recording will, more often than not, be owned by the original record company. The musical work will be the responsibility of the original publisher, although in certain cases, the rights may have been purchased by a third party (as in Michael Jackson's purchase of the Beatles catalogue). If both parties agree to your request, you still haven't fully overcome the legal problems. This is when the international network of secondary publishing deals and record licensing comes into play, and it may well be that somebody you've never heard of, in a country you can't spell, can prevent your masterpiece being released in certain parts of the world.
Once all this is sorted out, there still remains the question of the actual musician involved in the original recording. The chances are that you have actually stolen a musical contribution from a session player who should, by rights, get some credit for it. The position here is less clear, because it can prove difficult tracing the person who actually performed on any given session. Assuming they are still alive, they have a case for expecting you to pay them a fee in accordance with the original terms of their contract. That could be at an hourly rate, or even points from your royalties.
PWL are currently getting round this problem by hiring in their own rappers who they sample 'Wap Bam Boogie'-style, and pay a session fee to, on the understanding that these samples can subsequently be used on any number of records.
The original copyright law of 1956 also contains a clause offering a defence against possible action for the original record producer. If a producer has made a record, he or she has the right to make another recording of that work and issue it without asking for permission from the copyright owner. There are, however, a couple of technicalities which must be observed.
Firstly, he must give notice of his intention to the copyright owner. Secondly, he must pay a statutory mechanical copyright royalty of 6¼% of the recommended retail selling price on each record manufactured. This allows the original producer to remix the material but prevents another party doing so without observing the full copyright laws.
That's the legal position, but the controversy doesn't end there. While James Brown may have once objected to "being sampled", and wrote 'I'm Real' to that effect, he now seems to have accepted the situation. In contrast, Jean Michel Jarre claims to be flattered that his Zoolook album has been sampled by many different people, and segments have even appeared on television commercials. Most artists seem to find little harm in having their work sampled, but are keen to point out that they are glad it's not them doing the sampling. Indeed, would Ofra Haza have had such a success with 'Im Nin Alu' if a portion hadn't appeared in the Coldcut remix of Eric B and Rakim's 'Paid In Full'? Would Rose Royce have reentered the charts with 'Carwash'/'ls It Love You're After' if 'Theme from S-Express' had failed to chart? They probably wouldn't, and they seem only too ready to offer thanks to the "villains" who stole their songs. The PWL vs. 4AD case is slightly different in that 'Roadblock' was already a hit before 'Pump Up The Volume' became successful, and there is a possible charge of M/A/R/R/S using 'Roadblock''s success as a springboard for their own. Meanwhile, there have been accusations that Stock, Aitken & Waterman plagiarised Classical Two's 'Rap's New Generation' for the backing track to 'Roadblock'.
Right now, those involved in legal proceedings are avoiding saying too much to the press on the subject - afraid they might damage their case before they come to court. The one thing you can be certain of is that they're not enjoying the wait for new legislation.
Feature by David Bradwell
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