6 - Copyright and Fair Use
Copyright and Fair Use in Music Sampling
For decades, artists have been using sampling in their music to reshape existing sounds into new ones. From the early days of hip-hop, when producers looped breaks, to modern producers who manipulate old recordings into fresh compositions, the technique of sampling has changed the music industry. Many artists face legal issues when it comes to sampling though, and often struggle to gain permission to use even a few seconds of a song. Music sampling exists at the intersection of creativity and legality, as copyright and fair use laws impose strict regulations on innovation and artistic expression in the music industry.
Modern-day sampling emerged in the 70s hip-hop scene, where DJs would play records while MCs rapped over them live in clubs. In 1979, some of the first hip-hop records were released, marking a shift from live sampling to an actual production technique. One of these records was "Rapper's Delight" by The Sugarhill Gang, which sampled disco soul song "Good Times" by Chic. The Sugarhill Gang's single was the first hip-hop single to make it to the Billboard Top 40, becoming one of the first widely-known songs that used sampling (Producer Tech).
Sampling techniques have evolved over time with the introduction of digital production, becoming an instrument in and of itself. In 2022, statistics from Tracklib revealed that 1 out of 5 hits sampled from previous songs. Modern artists like Kanye West, Pharrell Williams, and others frequently use samples in their music, reinventing old sounds into new ones. Almost every genre of music utilizes samples, though hip-hop remains the most persistent.
As sampling gained popularity over the years, labels began seeing it as a form of stolen content. Many early producers went by the motto of "use first, worry later" when sampling music, which led to a plethora of legal cases. One of the most prominent of these is the copyright case of Grand Upright Music v. Warner Bros. Records in 1991.
The plaintiff, Grand Upright Music, was representing their artist, Gilbert O'Sullivan, against Warner Bros. Records, who were representing their artist Biz Markie. The plaintiff alleged that the defendant used a sample of O'Sullivan's song, "Alone Again (Naturally)," in Markie's song, "Alone Again," without proper authorization. The courts ruled in O'Sullivan's favor, claiming that sample use was "tantamount to criminal theft" and that the defendants would have to pay royalties and damages to the plaintiff. This ruling forever changed the music industry, making it to where producers are required to get clearance or pay a fee to use samples (Austin Chronicle).
Fair use is also utilized in obtaining samples in music. Fair use allows artists to sample parts of copyrighted music without having to clear it. Some of the factors that courts consider when determining whether a sample falls under fair use law are (Produce Like a Pro):
- The artist samples only a small portion of the song.
- The material was transformed into the artist's own through methods such as adding additional instrumentation and melody.
- No financial harm was caused to the original owner.
The strict enforcement of copyright and fair use laws has impacted creativity in music. Smaller artists struggle to afford sample clearance fees, and other artists struggle to convince artists to let them sample at all. With that being said, though, copyright laws must be implemented to protect original creators from having their content stolen. As music technology evolves, sampling will continue to be utilized and raise issues involving the balance between protecting intellectual property and encouraging creative expression in music.
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