Can I Get a Piece of That? Policies on Sampling and How it Affects Creativity in Hip Hop

by Brittany Estell September 21 2009, 01:03

I. Introduction     

Jay-Z’s Blueprint III [1] was released on September 11, 2009 with an abundance of featured artists as well known producers.[2] Exactly two months after his release date, this huge name will be at Assembly Hall performing for thousands of students, fans, adults, and professors. [3] In 2005 there was a grave controversy about DJ Danger Mouse's mixtape The Grey Album, [4]  a compilation created by sampling Jay Z's The Black Album [5] and the Beatles' The White Album [6][7] DJ Danger Mouse was sought out by record companies who owned both Jay-Z and The Beatles’ music for copyright infringement, after his mixtape became popular all over the internet as well as the radio airwaves. [8]  More about DJ Danger Mouse and his legal troubles and how it relates to sampling will be discussed at length below.  Today, on Blueprint III, [9] Jay Z has producer Kanye West, who is famed, among other things, for his use of sampling in his very popular beats.[10] On his album Graduation (2007)[11] he gave sample credit on ten out of the fifteen songs on the CD. [12]

    

What is intriguing about these two sampling situations are the dichotomy between persons who have the means to sample, and those who do not.  Persons who have the power and who are surrounded by people with knowledge of the music industry have everything they need at their fingertips and creativity is endless.  On the other hand, there are persons who are creative, and their creativity and popularity can be stifled for fear of being prosecuted by the law for not having the proper licenses and copyrights to publish their work.  The following will discuss this dichotomy at length.  This article discusses sampling and the policy/law affects on hip-hop.  Part I will define the term sampling.  Part II will give a small background on sampling and how it affected DJ Danger Mouse, he would represent the ordinary citizen.  Part III will discuss how hip-hop creativity is stifled.  Part IV will discuss an expression of the dichotomy between the famous and the general public and how sampling creativity affects each of these groups.  Also, Part IV will discuss options the industry and the Supreme Court should seek in creating policies about sampling music.  Part V will be the conclusion.

II. What is Sampling?

At its most basic definition, sampling is when a producer, “chops, screws, arranges, and assembles” a previously recorded sound and then use it for their own purposes. [13]Sampling is taking a snippet of music, a loop repeated through an entire song, or five notes taken from a song, and re arranged, similar to a collage, sampling is like that with music, and it is really one of the building blocks of hip hop is on. [14]  The type of sounds that are used can be anything from nature sounds to actual speech, any type of previously recorded sound. [15] Central ideas in policy revolve around “a chain of concepts: property, originality, ownership, possession, authenticity, authority, creation, and genesis.” [16]  These variables are responsible for creating policy. The sixth circuit court made a decision about sampling which again altered the way it was governed in Bridgeport Music, Inc. v. Dimension Films.[17]  In Bridgeport, several publishing groups including Bridgeport Music, Inc. brought suit against Dimension Films and No Limit Records, for using a piece of a song, which they had the copyright to, in their movie. [18]  It was held that no matter how much of a musical work is sampled, it never be defined by being insubstantial enough to not grant copyright protection. [19]       

      

Furthermore, the Supreme Court used this act to help define originality of work by law.  The Supreme Court stated that the time when a sample is something original is when it is something vastly different from what was taken from the first musical selection in other words transformative. [20]

III. Effects of Policy  

In the case of sampling, one of the most notable affects that policy has had on society at large is the case of DJ Danger Mouse and the Grey Album. [21] This case in point exemplifies confusion within the courts on sampling.  Courts agree that if an artist takes more than a few notes this is infringement. [22] However, courts are in dispute over whether a piece that is entirely transformative infringes copyright, even though a large portion of vocal or non-vocal pieces are used. [23] In a transformative piece, the artist creates something exemplary differential from the original piece so much so that it can be called his own. [24]    

 

DJ Danger Mouse was an underground DJ who complied vocals of Jay Z’s Black Album and the Beatles White Album and created his own Grey Album. [25]  Not expecting it to get much play, he distributed 3,000 copies. [26]   Once the album became distributed on the Internet it gained a wider audience and critical acclaim. [27]  Jay Z and Roc-A-Fella Records did not object to Danger Mouse use of vocals; however EMI, Capitol Records, and Sony Music/ATV Publishing did find serious issues with his “creative art.” [28]  Publishing groups: EMI, Capitol Records, and Sony Music/ATV took steps to shut down this successful DJ. [29]  EMI, Capitol Records, and Sony Music/ATV took steps to shut down this successful DJ. [30]  However, brining the issue to the DJ himself, people in the interest of the Beatles White Album, went to his Internet Service Provider and threaded to get them involved in a lawsuit because their subscriber was committing copyright infringement. [31] They were able to get the Internet Company to agree as they proceeded to take action against DJ Danger Mouse for his infringement practices. [32] EMI Group issued a cease and desist letter to Danger Mouse, and his retailers, ordering them to stop distributing the album. [33]  Danger Mouse agreed to avoid further legal action.[34]

IV. What Does All This Mean?  

There is value in copyright law in protecting people’s creativity, but there is the question of how much value, ownership, and rights do individuals have? Individuals cannot create music without having to worry that someone could take their work and credit for themselves.  It seems as though the Courts are beginning to crack down on people for sampling, only because their music becomes popular, as in the case of DJ Danger Mouse. [35]  Therefore, do people have to worry that if society likes their music too much they could be charged with committing various crimes? Clearing samples is not as easy as companies make it seem.  There are a lot of loop holes and knowledge that the common person would have to acquire just to attain the rights to be sampled. [36] The record companies hold a vast amount of power because they have the employees who will take care of getting copyrights for them. [37] With this monopoly of power, creativity is constrained.  Many artists believe that the copyright laws that are being imposed on the public are not actually protecting their music. [38] The owner of the music receives compensation for the sample not the artist him/her self. [39] This is why the Beatles don’t get paid if one of their songs gets sampled; Michael Jackson bought their entire library of music copyrights so he gets paid. [40]  The recording industry is the reason why copyright policy functions to maintain the monopoly.  It is hard when major companies have conglomerated into the big five, where a small amount of companies are responsible for a whole lot of work. [41]  

 

Would an artist without copyright protection have his creativity stifled? Would a person create music for the love of music or would a person only be concerned with the profit?  As of right now, law and policy are doing both a service and injustice to the music art form.  Policy is protecting creativity through shielding people’s work from being stolen without due credit while protecting a capitalistic market.  There must be a change in policy in order for copyright to fully function in the interest of hip-hop artist, hip-hop producers, and the public.  In Bridgeport the court states that “the purpose of copyright laws is to deter wholesale plagiarism of prior works. [42]  However, a balance must be struck between protecting an artist’s interest, and depriving other artists of the building blocks of future works.” [43] It seems as though the court has the right idea, but there is a question on where is the line drawn?  The court attempts to make a “bright line” rule stating that, when determining whether a copyright has been infringed on the court must determine whether the sample has created something original which is substantially different from sampled music. [44]

   

However, who is to be the judge?  No pun intended.  Is it the record labels that have their hands out attempting to gain some sort of profit after lost in monies from pirates.  Is it the artist who determines whether too much of their work has been used?  Or is it the producer using the work who is responsible for making his own decision? Artist work should be protected; it is their ideas and work which is being put out on the market.  Therefore, they should take a more active role in policy making behind sampling.   Artist should advocate to legislature for leniency against public persons who merely use the artist work to create a new original piece.  However, once profit is beginning to be made off of another artists work, there should be steps taken before seeking legal action.  For example, the record company could contact the DJ to request the ability to contract with them for the sampling product used.  If measures such as these do not work, legal action could then be sought.

 

V. Conclusion 

 

It seems to me that creativity comes with some sort of limit of success. If a DJ wants to use his creative abilities to sample another artist's work, he better hope that he does not gain too much success for the fear that he will be sued for infringement. On the opposite end of the spectrum, there are producers and DJ's like Kanye West who understands the copyright system and is thus, able to get all necessary licenses and permission to sample as much as they want from whoever they want. If the court system cannot establish a bright line rule of when copyright is being infringed, then what is it that the general artists are supposed to do? Those without means, it seems, are left in the dark once again, to figure out for themself what is right and what is wrong.            

     

 


[1] Jay Z, Blueprint III (Roc-A-Fella Records 2009).

[2] Tjames Madison, Jay-Z Announces Fall Dates, Releases New Album, LiveDaily, September 8, 2009, http://www.livedaily.com/news/20053.html.
[3] Jay Z, Blueprint III, supra note 1.
[4] DJ Danger Mouse – The Grey Album, http://www.illegal-art.org/audio/grey.html (last visited September 20, 2009).
[5] Jay Z, The Black Album (Roc-A-Fella Records 2005).
[6] The Beatles, The White Album (Capitol EMI Records 1978).
[7] W. Y. Durbin, Recognizing the Grey: Toward a New View of the law Governing Digital Music Sampling Informed by the First Amendment,  15 Wm. & Mary L. Rev.1021 (2007).
[8] SEE GENERALLY,  id.
[9] Jay-Z, Blueprint III, supra note 1.
[10] Arienne Thompson, Kanye West, The Future of Hip-Hop, The Observer Online February 26, 2004,  
http://media.www.ndsmcobserver.com/media/storage/paper660/news/2004/02/26/Scene/Kanye.West.The.Future.Of.Hip.Hop-618594.shtml. 
[11]  Kanye West, The Graduation (Roc-A-Fella Records 2007).
[12] Kanye West Production Discography, http://en.allexperts.com/e/k/ka/kanye_west_production_discography.htm. (last visited September 19, 2009).
[13] Mark Katz, Making Beats: The Art of Sample Based- Hip Hop. 61 notes 1028 (2004).
[14] Sampling in Hip-Hop, http://www.artistshousemusic.org/videos/sampling+in+hip+hop (last visited September 13, 2009).
[15] Id. 
[16] Carol Becker & Romi Crawford, An Interview with Paul D. Miller a.k.a. DJ Spooky That Subliminal Kid, 61 Art Journal 83, 89 (2002).
[17] Bridgeport Music, Inc v. Dimension Films, 401 F.3d 647 (6th Cir. 2004).
[18] Id.
[19] John Schietinger, Bridgeport Music Inc. v. Dimension Films: How the Sixth Circuit Missed A Beat On Digital Music Sampling, 55 DePaul L. Rev. 13555, 13555 (2005).
[20] Webber, supra note 5, at 375.
[21] DJ Danger Mouse, supra note 4.
[22] Becker, supra note 16, at 93.
[23] Schietinger, supra note 19, at 13555
[24] DJ Danger Mouse, supra note 3
[25] Durbin, supra note 7, at 1021.
[26] Id.
[27] Id.
[28] Id. at 1022.
[29]  Id.
[30] Id.
[31] Id.
[32] Id. at 1023.
[33] Id.
[34] Id.
[35] Id.
[36] Webber, supra note 5, at 392.
[37] Id.
[38] Id. at 396
[39] Id. 
[40] Id. at 395
[41] Ben Bagdikian, The New Media Monopoly 27-54: (Beacon Press 2004).
[42] Bridgeport Music, Inc v. Dimension Films, 401 F.3d 647 (6th Cir. 2004).
[43] Id.

[44]  Schietinger, supra. note 19, at 13557.

 

 

 

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