Legal Issues Surrounding Music Sampling

In sound and music, sampling is the reuse of a portion (or sample) of a sound recording in another recording. Samples may comprise elements such as rhythm, melody, speech, sounds or entire bars of music, and may be layered, equalized, sped up or slowed down, repitched, looped, or otherwise manipulated. They are usually integrated using hardware ( samplers) or software such as digital audio workstations.

A process similar to sampling originated in the 1940s with '' musique concrète'', experimental music created by splicing and looping tape. The mid-20th century saw the introduction of keyboard instruments that played sounds recorded on tape, such as the Mellotron. The term ''sampling'' was coined in the late 1970s by the creators of the Fairlight CMI, a synthesizer with the ability to record and play back short sounds. As technology improved, cheaper standalone samplers with more memory emerged, such as the E-mu Emulator, Akai S950 and Akai MPC.

Sampling is a foundation of hip hop music, which emerged when producers in the 1980s began sampling funk and soul records, particularly drum breaks. It has influenced many other genres of music, particularly electronic music and pop. Samples such as the Amen break, the "Funky Drummer" drum break and the orchestra hit have been used in thousands of recordings, and James Brown, Loleatta Holloway, Fab Five Freddy and Led Zeppelin are among the most sampled artists. The first album created entirely from samples, '' Endtroducing'' by DJ Shadow, was released in 1996.

Sampling without permission can infringe copyright or may be fair use. Clearance, the process of acquiring permission to use a sample, can be complex and costly; samples from well known sources may be prohibitively expensive. Courts have taken different positions on whether sampling without permission is permitted. In '' Grand Upright Music, Ltd. v. Warner Bros. Records Inc'' (1991) and ''Bridgeport Music, Inc. v. Dimension Films'' (2005), American courts ruled that unlicensed sampling, however minimal, constitutes copyright infringement. However, ''VMG Salsoul v Ciccone'' (2016) found that unlicensed samples constituted '' de minimis'' copying, and did not infringe copyright. In 2019, the European Court of Justice ruled modified, unrecognizable samples could be used without authorization. Though some artists sampled by others have complained of plagiarism or lack of creativity, many commentators have argued that sampling is a creative act.

Precursors

In the 1940s, the French composer Pierre Schaeffer developed '' musique concrète'', an experimental form of music created by recording sounds to tape, splicing them, and manipulating them to create sound collages. He used sounds from sources such as the human body, locomotives, and kitchen utensils. The method also involved tape loops, splicing lengths of tape end to end so a sound could be played indefinitely. Schaeffer developed the Phonogene, which played loops at 12 different pitches triggered by a keyboard.

Composers including John Cage, Edgar Varèse, Karheinz Stockhausen and Iannis Xenakis experimented with ''musique concrète,'' and Bebe and Louis Barron used it to create the first totally electronic film soundtrack, for the 1956 science fiction film ''Forbidden Planet''. ''Musique concrète'' was brought to a mainstream audience by the BBC Radiophonic Workshop, which used the techniques to produce soundtracks for shows including '' Doctor Who''.

In the 1960s, Jamaican dub reggae producers such as King Tubby and Lee "Scratch" Perry began using recordings of reggae rhythms to produce riddim tracks, which were then deejayed over.Bryan J. McCann
''The Mark of Criminality: Rhetoric, Race, and Gangsta Rap in the War-On-Crime ERA'', pages 41-42
University of Alabama Press Jamaican immigrants introduced the techniques to American hip hop music in the 1970s. The British producer Brian Eno cited the German musician Holger Czukay's experiments with Dictaphones and shortwave radios as examples of early sampling.

Technique and tools

Commonly sampled elements include strings, basslines, drum loops, vocal hooks or entire bars of music, especially from soul records. Samples may be layered, equalized, sped up or slowed down, repitched, looped or otherwise manipulated. As sampling technology has improved, the possibilities for manipulation have grown.

The American producer DJ Shadow likened his sampling process to a collage, and gave the example of taking a snare sound from one record, a kick from another, and a bassline from another. He said this was "the first hurdle", and then "actually having it articulate something and channel my inspiration through it — to be able to tell a story in that way — is the second hurdle. Just throwing a bunch of things together may not be very interesting."

Instead of sampling a recording, artists may recreate a recording, a process known as interpolation.

Samplers

The ''Guardian'' described the Chamberlin as the first sampler, developed by the English engineer Harry Chamberlin in the 1940s. The Chamberlin used a keyboard to trigger a series of tape decks, each containing eight seconds of sound. Similar technology was popularised in the 60s with the Mellotron. In 1969, the English engineer Peter Zinovieff developed the first digital sampler, the EMS Musys.

The term ''sample'' was coined by Kim Ryrie and Peter Vogel to describe a feature of their Fairlight CMI synthesizer, launched in 1979. While developing the Fairlight, Vogel recorded around a second of a piano performance from a radio broadcast, and discovered that he could imitate a piano by playing the recording back at different pitches. The result better resembled a real piano than sounds generated by synthesizers. Compared to later samplers, the Fairlight was limited; it allowed control over pitch and envelope, and could only record a few seconds of sound. However, the sampling function became its most popular feature. Though the concept of reusing recordings in other recordings was not new, the Fairlight's design and built-in sequencer simplified the process.The Fairlight inspired competition, improving sampling technology and driving down prices. Early competitors included the E-mu Emulator and the Akai S950. Drum machines such as the Oberheim DMX and Linn LM-1 incorporated samples of drum kits and percussion rather than generating sounds from circuits. Early samplers could store samples of only a few seconds in length, but this increased with improved memory. In 1988, Akai released the first MPC sampler, which allowed users to assign samples to pads and trigger them independently, similarly to playing a keyboard or drum kit. It was followed by competing samplers from companies including Korg, Roland and Casio. Today, most samples are recorded and edited using digital audio workstations (DAWs) such as Pro Tools and Ableton Live.

Sample libraries

License-free samples are distributed in sample libraries, also known as sample packs. ''MusicRader'' wrote that, in the 1990s, sample packs from companies such as Zero-G and Spectrasonics had a "seismic impact on the sound of contemporary music". In the 2000s, Apple introduced "Jam Packs" sample libraries for its DAW GarageBand. In the 2010s, producers began releasing sample packs on online platforms such as Splice.

Library music may be sampled without clearance. Performing interpolations instead require only the musical content owner's permission and creates more freedom to alter constituent components such as separate guitar and drum tracks. In the 2000s, producers began releasing compositions to be used by others in the tradition of library music. The Kingsway Music Library, created in 2015 by the American producer Frank Dukes, has been used by artists including Drake, Kanye West, Kendrick Lamar, Madlib and J. Cole. In 2020, the US Library of Congress created an open-source web application that allows users to sample its copyright-free audio collection.

Impact

Sampling has influenced many genres of music, particularly pop, hip hop and electronic music. The '' Guardian'' journalist David McNamee likened its importance in these genres to the guitar's importance in rock. In August 2022, the ''Guardian'' noted that half of the singles in the UK Top 10 used samples. Sampling is a fundamental element of remix culture.

Early works

Using the Fairlight, the "first truly world-changing sampler", the English producer Trevor Horn became the "key architect" in incorporating sampling into pop music in the 1980s. Other users of the Fairlight included Kate Bush, Peter Gabriel, Thomas Dolby, Duran Duran, Herbie Hancock, Todd Rundgren, Icehouse and Ebn Ozn. In the 1980s, samples were incorporated into synthesizers and music workstations, such as the bestselling Korg M1, released in 1988.

The Akai MPC, released in 1988, had a major influence on electronic and hip hop music, allowing artists to create elaborate tracks without other instruments, a studio or formal music knowledge. Its designer, Roger Linn, anticipated that users would sample short sounds, such as individual notes or drum hits, to use as building blocks for compositions; however, users sampled longer passages of music. In the words of Greg Milner, author of ''Perfecting Sound Forever'', musicians "didn't just want the sound of John Bonham's kick drum, they wanted to loop and repeat the whole of 'When the Levee Breaks'." Linn said: "It was a very pleasant surprise. After 60 years of recording, there are so many prerecorded examples to sample from. Why reinvent the wheel?"

Stevie Wonder's 1979 album ''Journey Through the Secret Life of Plants'' may have been the first album to make extensive use of samples. The Japanese electronic band Yellow Magic Orchestra were pioneers in sampling, constructing music by cutting fragments of sounds and looping them; their album ''Technodelic'' (1981) is an early example of an album consisting mostly of samples. '' My Life in the Bush of Ghosts'' (1981) by David Byrne and Brian Eno is another important early work of sampling, incorporating samples of sources including Arabic singers, radio DJs and an exorcist. Musicians had used similar techniques before, but, according to the '' Guardian'' writer Dave Simpson, sampling had never before been used "to such cataclysmic effect". Eno felt the album's innovation was to make samples "the lead vocal". Big Audio Dynamite pioneered sampling in rock and pop with their 1985 album ''This Is Big Audio Dynamite''.

Hip hop

Sampling is one of the foundations of hip hop, which emerged in the 1980s. Hip hop sampling has been likened to the origins of blues and rock, which were created by repurposing existing music. The ''Guardian'' journalist David McNamee wrote that "two record decks and your dad's old funk collection was once the working-class black answer to punk".

Before the rise of sampling, DJs used turntables to loop breaks from records, which MCs would rap over. Compilation albums such as ''Ultimate Breaks and Beats'' compiled tracks with drum breaks and solos intended for sampling, and were aimed at DJs and hip hop producers''.'' In 1986, the tracks " South Bronx", " Eric B. is President" and "It's a Demo" sampled the funk and soul tracks of James Brown, particularly a drum break from "Funky Drummer" (1970), helping popularize the technique.

The advent of affordable samplers such as the Akai MPC (1988) made looping easier. ''Guinness World Records'' cites DJ Shadow's acclaimed hip hop album '' Endtroducing'' (1996), made on an MPC60, as the first album created entirely from samples. The E-mu SP-1200, released in 1987, had a ten-second sample length and a distinctive "gritty" sound, and was used extensively by East Coast producers during the golden age of hip hop of the late 1980s and early 90s.

Common samples

A seven-second drum break in the 1969 track "Amen, Brother", known as the Amen break, became popular with American hip hop producers and then British jungle producers in the early 1990s. It has been used in thousands of recordings, including songs by rock bands such as Oasis and theme tunes for television shows such as '' Futurama''. According to WhoSampled, a user-generated website that catalogs samples, "Amen, Brother" is the most sampled track in history, appearing in more than 5000 tracks as of 2021.

Other widely sampled drum breaks appear in the 1970 James Brown song "Funky Drummer"; the 1972 Lyn Collins song "Think (About It)", written by Brown (the Think break); and Led Zeppelin's 1971 recording of "When the Levee Breaks", played by John Bonham and used by artists including the Beastie Boys, Dr. Dre, Eminem and Massive Attack.

In 2018, the ''Smithsonian'' cited the most sampled track as "Change the Beat" by Fab Five Freddy, which appears in more than 1,150 tracks. WhoSampled cites James Brown as the most sampled artist, appearing in more than 3000 tracks. The ''Independent'' named the American singer Loleatta Holloway the most sampled female voice in popular music; her vocals were sampled in house and dance tracks such as "Ride on Time" by Black Box, the bestselling single of 1989.

The orchestra hit originated as a sound on the Fairlight, sampled from Stravinsky's 1910 orchestral work '' Firebird Suite,'' and became a hip hop cliche. '' MusicRadar'' cited the '' Zero-G Datafiles'' sample libraries as a major influence on dance music in the early 90s, becoming the "de facto source of breakbeats, bass and vocal samples".

Legal and ethical issues

To legally use a sample, an artist must acquire legal permission from the copyright holder, a potentially lengthy and complex process known as clearance. Sampling without permission can breach the copyright of the original sound recording, of the composition and lyrics, and of the performances, such as a rhythm or guitar riff. The moral rights of the original artist may also be breached if they are not credited or object to the sampling. In some cases, sampling is protected under American fair use laws, which grant "limited use of copyrighted material without permission from the rights holder".

The owner of sampled material may not always be traceable, and such knowledge is commonly mislaid through corporate mergers, closures and buyouts. For example, the 2000 Daft Punk track " One More Time" contains a sample of the 1979 disco song "More Spell on You" by Eddie Johns. An attorney estimated that Johns, who could not be located by the publishing company, was owed a "six-to-seven-figure sum" based on streams alone as of 2021.

The American musician Richard Lewis Spencer, who owned the copyright for the widely sampled Amen break, never received royalties for its use. He condemned the sampling as plagiarism, but later said it was flattering. The journalist Simon Reynolds likened the situation to "the man who goes to the sperm bank and unknowingly sires hundreds of children".

DJ Shadow said that artists tended to either see sampling as a mark of respect and a means to introduce their music to new audiences, or to be protective of their legacy and see no benefit. He described the difficulty of arranging compensation for each artist sampled in a work, and gave the example of one artist demanding 75% of the rights and another 70%, a mathematical impossibility. He instead advocated for a process of clearing samples on a musicological basis, by identifying how much of a composition a sampled component comprises.

According to ''Fact'', early hip hop sampling was governed by "unspoken" rules forbidding the sampling of recent records, reissues, other hip hop records, or from non-vinyl sources, among other restrictions. These rules were relaxed as younger producers took over and the practice became ubiquitous. In 2017, DJ Shadow said that he felt that "music has never been worth less as a commodity, and yet sampling has never been more risky".

Sampling can help popularize the sampled work; for example, the Desiigner track "Panda" (2015) topped the '' Billboard Hot'' 100 after West sampled it on "Father Stretch My Hands, Pt. 2" (2016). Some record labels and other music licensing companies have simplified their clearance processes by "pre-clearing" their records. For example, the Los Angeles record label Now-Again Records has cleared songs produced for West and Pusha T in a matter of hours.

Lawsuits

In 1989, the Turtles sued De La Soul for using an uncleared sample on their album ''3 Feet High and Rising.'' The Turtles singer Mark Volman told the ''Los Angeles Times'': "Sampling is just a longer term for theft. Anybody who can honestly say sampling is some sort of creativity has never done anything creative." The case was settled out of court and set a legal precedent that had a chilling effect on sampling in hip hop.

In 1991, the songwriter Gilbert O'Sullivan sued the rapper Biz Markie after Markie sampled O'Sullivan's "Alone Again (Naturally)" on the album '' I Need a Haircut''. In '' Grand Upright Music, Ltd. v. Warner Bros. Records Inc,'' the court ruled that sampling without permission infringed copyright. Instead of asking for royalties, O'Sullivan forced Markie's label Warner Bros to recall the album until the song was removed. The journalist Dan Charnas criticized the ruling, saying it was difficult to apply conventional copyright laws to sampling and that the American legal system did not have "the cultural capacity to understand this culture and how kids relate to it”. In 2005, the writer Nelson George described it as the "most damaging example of anti-hip hop vindictiveness", which "sent a chill through the industry that is still felt". In the ''Washington Post'', Chris Richards wrote in 2018 that no case had exerted more influence on pop music, likening it to banning a musical instrument. Some have accused the law of restricting creativity, while others argue that it producers to innovate.

Since the O'Sullivan lawsuit, samples on commercial recordings have typically been taken either from obscure recordings or cleared, an often expensive option only available to successful acts. According to the ''Guardian'', "Sampling became risky business and a rich man's game, with record labels regularly checking if their musical property had been tea-leafed." For less successful artists, the legal implications of using samples pose obstacles; according to ''Fact'', "For a bedroom producer, clearing a sample can be nearly impossible, both financially and in terms of administration." By comparison, the 1989 Beastie Boys album ''Paul's Boutique'' is composed almost entirely of samples, most of which were cleared "easily and affordably"; the clearance process would be much more expensive today. The ''Washington Post'' described the modern use of well known samples, such as on records by Kanye West, as an act of conspicuous consumption similar to flaunting cars or jewelry. West has been sued several times over his use of samples.

''De minimis'' use

In 2000, the jazz flautist James Newton filed a claim against the Beastie Boys' 1992 single "Pass the Mic", which samples his composition "Choir". The judge found that the sample, comprising six seconds and three notes, was '' de minimis'' (small enough to be trivial) and did not require clearance. Newton lost appeals in 2003 and 2004.

In the 2005 case ''Bridgeport Music, Inc. v. Dimension Films'', the rap group N.W.A. were successfully sued for their use of a two-second sample of a Funkadelic song in the 1990 track "100 Miles and Runnin'". The United States Court of Appeals for the Sixth Circuit ruled that all samples, no matter how short, required a license. A judge wrote: "Get a license or do not sample. We do not see this as stifling creativity in any significant way."

As the Bridgeport judgement was decided in an American Federal court of appeal, lower courts ruling on similar issues are bound to abide by it. However, in the 2016 case ''VMG Salsoul v Ciccone'', the United States Court of Appeals for the Ninth Circuit ruled that Madonna did not require a license for a short horn sample in her 1990 song "Vogue". The judge Susan Graber wrote that she did not see why sampling law should be an exception to standard ''de minimis'' law.

In 2019, the European Court of Justice ruled that the producers Moses Pelham and Martin Haas had illegally sampled a drum sequence from the 1977 Kraftwerk track "Metal on Metal" for the Sabrina Setlur song "Nur Mir". The court ruled that permission was required for recognizable samples; modified, unrecognizable samples could still be used without authorization.

See also

* Mashup
* Musical quotation
* Plunderphonics
* Recombinant culture
* Riddim

References

Further reading

*Katz, Mark. "Music in 1s and 0s: The Art and Politics of Digital Sampling." In ''Capturing Sound: How Technology has Changed Music'' (Berkeley: University of California Press, 2004), 137–57.
*McKenna, Tyrone B. (2000
"Where Digital Music Technology and Law Collide – Contemporary Issues of Digital Sampling, Appropriation and Copyright Law"
''Journal of Information, Law & Technology''.
* Challis, B (2003

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*Ratcliffe, Robert. (2014
"A Proposed Typology of Sampled Material within Electronic Dance Music."
''Dancecult: Journal of Electronic Dance Music Culture'' 6(1): 97-122.
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DJing
Hip hop production
Plagiarism controversies