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JILT 2000 (1) - Tyrone McKenna


Where Digital Music Technology and Law Collide - Contemporary Issues of Digital Sampling, Appropriation and Copyright Law

Tyrone McKenna
Queens University Belfast
M9724591@Queens-Belfast.ac.uk
 

A joint undergraduate winner of the 1999 BILETA
Lord Lloyd of Kilgerran Prize


Contents

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1. Introduction

The practice of digital sampling, or physically copying sounds from one recording to another through use of digital technology, has been ongoing for well over a decade, and is becoming more and more widespread amongst mainstream artists. Its arrival on the global digital music and art world, focussed legal and ethical problems of copyright and modern technology in this area of intellectual property.

This patent appropriation of pre-existing recorded sounds created by others has provoked discussion in both legal journals and more populist publications. The issues are whether digital sampling amounts to copyright infringement, fair use, or a contemporary breed of expression known as 'appropriationist art', that people argue should not be governed by traditional copyright principles and analyses. The courts have been slow to entertain these issues, notably in the United Kingdom. The cases that do approach the problem do so very tentatively, and for the most part do not address the challenges that this technology poses to established paradigms for determining what is and what is not actionable appropriation.[1]

For the most part record companies do not wish to take possible infringement cases as far as court, preferring a cash settlement with the would-be sampler. Other deterrent methods to samplers are employed by the recording industry, such as exorbitant copyright clearance fees, and in the United Kingdom, the invention of a 'three second rule'. Where three seconds or less of a work are sampled, no action is customarily taken against the sampler. However, this is merely a custom of the music industry and is not a legal rule.

As an art form, appropriation has been a prominent element in the inspiration and creation of art since the Industrial Revolution. Digital sampling is arguably a contemporary technological version of this method of creating art. Nevertheless, the law as it stands treats sampling under outdated copyright laws, resulting in an unclear, arbitrary system of dealing with alleged infringements, and has resulted in clear instances of judicial antipathy towards defendants.[2]

The criteria which satisfy the ratio decidendi in the following case law examined, rely on an analysis which in a clandestine and ironic manner stultify the growth and development of this and associated appropriationist art forms. It is a matter that brings into question the intention of the statutory copyright laws in the first instance. The economic interests of the recording industry and their clients, have taken notable profit from these laws, a point not lost on artistic and legal commentators, unsigned or independent musicians. In many ways it is the music industry that is in control of what is and what is not free to be copyrighted as regards music form. The case for clarification, elucidation, as well as modernisation of current legislation as regards digital sampling and associated art forms, is founded on the premise that private ownership of mass culture is somewhat of a contradiction in terms. Many contemporary commentators argue that while copyright is absolutely necessary, in some cases such as with appropriation, copyright principles have been shown to clumsily applied and understood.[3]

The following is designed in order to examine the areas of copyright law governing this modern day art form, with a view to addressing the controversy over the appropriation of sounds. Firstly, there will be an outline given of the technology involved in digital sampling, its history and use in today's society, and what impact it has had upon the creation and distribution of music.

An overview of existing applicable copyright laws and what ramifications digital sampling has had upon the law are then examined. This will be in tandem with analysis of the American position and case law on digital sampling and copyright, mainly because it is in this jurisdiction where the greater degree of litigation has taken place, although for the most part the American and English statutes mirror each other. In addition it will be noted that Anglo-American copyright development has been with economic factors being the main thrust of their jurisprudence. Possible resolutions of the problem will be examined such as an extension of the application of the Anglo-American concept of 'fair use' towards certain cases of alleged infringement, and the employment of a clearer structured substantial similarity analysis.

2. An Overview of Digital Sampling Technology

Firstly, an explanation of the technology is necessary, before studying its impact upon the law, as well as the economic and social factors involved. In this way a clearer picture should emerge as to the controversies of the situation as regards existing copyright laws.

Possibly the greatest impact of digital technology on the music industry has been in the production and distribution of sound recordings, and the creation of sound itself. Sampling is inextricably linked to this technological development and as a result of these leaps and bounds the actual musician his or herself, has been given greater access and ability to the manipulation and creation of digital sound.

The history of sound recording goes back only about one hundred years, to Thomas Edison's inventions of the late nineteenth century. Before introducing electro-acoustic technology, or loudspeakers, only the vibration of stable structures produced sounds. Therefore, sound was bound inherently to its source.

Actual sound itself is composed of waves of energy that have a number of distinguishing characteristics such as 'frequency oscillation', or cycles per second, 'amplitude' or energy transmitted by each frequency and 'decay' or speed of abatement.

Oscilloscopes can measure several of these sound wave characteristics and produce visual representations of them, an example with which most people will be familiar is the electroencelograph, which transfers the sound of a heartbeat into an image. In what is commonly known as analogue recording (the pre-digital age), sound waves are converted into a sequence of electrical energy surges (voltages) that are analogous to the sound waves they represent.

With the advent of the digital technology, the way sound was to be produced and recorded changed dramatically. Digital audio recording uses samples, which are numerical representations of ones and zeros - binary code - of physical characteristics of sound waves. Because tens of thousands of samples are taken for each second of sound, the rendering of sound waves in digital code is absolutely precise. Therefore, the quality of sound reproduction is vastly improved and as a result of this technological development, digital audio playback equipment such as compact disc players, digital audio tracking machines, and mini-disc players became widely available from the early and mid 1980's, into the 1990's. The quality of audible reproduction of the waves recorded through these samples is today limited only by amplifier and speaker technology.

Digital music technology can be used to record music performances, but also, and more crucially regarding copyright laws, to create and manipulate sounds through MIDI (Music Instrument Digital Interface). Using the sampling technology already described, any sound can now be captured in digital code.[4] Once captured, this sound can be morphed, reversed, spliced in to sections, re-spliced, equalised and effects added to varying degrees, depending upon the nature of the users wishes. In this way some digitised samples can be so far removed from the original that they are basically impossible to identify.

Among musicians and artists towards the end of the 1980's and the beginning of the 1990's, the concept of digital sampling developed whereby an extract from one sound recording, such as a drum beat or a vocal melody, is mixed with another sound recording. The technique itself had been common amongst underground musicians in the late 1970's, whose innovative methods made use of the analogue technology available at the time. This meant the use of analogue tape machines and turntables. With the advent of this digital technology, these artists became able to integrate the technology to improve the efficiency of this new found music creation and the production of music that appropriated previously recorded and found sounds. Sampling became a quite simple and straightforward process. The production of digital sampling units from companies such as Boss and Alesis became widespread, for use by artists, mixing engineers and producers alike.

Sampling itself can take many forms; sometimes a few bars of an original recording are sampled, other times the whole bass or drum line from the original recording is sampled. The technology allows the separation of sounds in some cases, meaning the sample itself may be almost impossible to isolate in the finished 'hybrid' recording. Sometimes, the original sound recording is not sampled at all, but instead an extract from the original composition is re-recorded (in the sense of being recorded by other artists) and then the recording is used for sampling purposes.

The technology has had both positive and negative effects upon musicians world-wide. Now the need for a complete and accurate score of written music is obsolete. Music can be played through MIDI interface channels, and an ordinary relatively inexpensive personal computer can write the music score on manuscript if this is necessary using software packages such as Cubase SVT.[5] In addition, the way in which musical compositions are created is vastly different today given the technology available. Many pieces of music are actually created from basic sound sample packages, ranging from diverse drum pattern samples, to full choral and vocal sections. Therefore, music is created in a linear fashion, and although the samples in the software packages used are not subject to any legal constraints, this method of music creation merely highlights the prominence of digital sampling in the creative process in today's society.

Musical illiteracy has been a negative result of this technology, however, composition techniques are vastly simplified, as the digital sampling software has made it easy for the creation of a composition through basic computing cut and paste methods. In this way, the ease of manipulation and creation has meant the actual process of making music much more accessible to both artists and public. As another example, computer art package development is similar, in that any image can be scanned, manipulated touched-up or distorted to varying degrees, and reconstituted with only tenuous links remaining to the original inputted material.[6] This too is a form of digital appropriation, however this type of art form has been used previously for many years, with collage techniques.

3. Legal Ramifications of Digital Sampling

As soon as records containing samples were released, a direct conflict arose between this practice and the traditional protections afforded under existing copyright law. As one author comments;

'..the concurrent fashionability of scratch mixing and sampling keyboards like the Emulator and the Fairlight has led to creative pillage on a grand scale and caused a crisis for pre-computer age concepts of artistic property.'[7]

So what precise legal issues have arisen as a consequence of the impact of this digital technology, and the contemporary culture of digital sampling? Can the existing copyright laws still be applicable in a digital age? Is the new 'hybrid' produced by the technology outlined above a developed composition in its own right, (i.e. appropriationist art), therefore side-stepping the relevant domestic and international legislation? Or can this digital art fall into the category of fair use? Or is it simply veiled piracy?

As regards digital sampling, the law has been revealed as inflexible, treating each case in its own right, using different types of test, or jumping from one conclusion to another, and not truly addressing the nature of the problem until fairly recently.[8] For many years a wider argument calls to end the apparent corporate monopoly and the commercialisation of music, something that is connected to this sampling culture, in that underground, independent and unsigned musicians are the ones who suffer at the hands of the corporate monolith of the music industry. The argument for artistic freedom of expression is the main thrust of groups of artists and musicians such as Negativland who argue;

'Is it not about time that the obvious aesthetic validity of appropriation begins to be raised in opposition to the assumed pre-eminence of economically motivated copyright laws prohibiting the free reuse of cultural material?'

In 1945, Professor Zechariah Chafee, in a renowned article on the jurisprudence of copyright law posed the question, 'What is it that the law of copyright is really trying to accomplish?'[9] The summation of his work provides interesting and thought provoking reading. Six 'ideals' of copyright came as a result of Chafee's work, three of the six were in favour of the protection of the copyright owner, the others were described as 'negative', in that they limited the scope of protection.

His work did in many ways underline and reflect the Anglo-American links between the historic United Kingdom Statute of Anne (1709), and the copyright clause in the American Constitution, both originally laying emphasis on the role of copyright protection, although created a confusion of ideas as to the principles of copyright. Four principles under the former Act can be identified. Firstly natural rights of an author over his work, secondly, just rewards for the authors labour, thirdly the aforementioned stimulus to creativity, and finally the social requirements of wide dissemination contributing to the advance of society. These then can be the four original cornerstones of copyright, however economic and social arguments have contributed more weight in the development of Anglo-American copyright laws than in Continental countries, rather then abiding by these cornerstones. What can be shown from this analysis is that the development of the modern day copyright system has been shown as;

'due in no small measure to the confusion of ideas resulting from the events of the eighteenth century in England... The ideas - that copyright is a monopoly; that copyright is primarily an author's right ; that the author has natural rights in his works which must be limited by statute - once stated by the courts, became a fixed part of the heritage of copyright.'[10]

This is important especially considering the apparent lack of development of copyright law in tandem with the digital age.

Chafees' first ideal provided complete coverage, and it is here that the argument for appropriationist freedom may find its roots. He states, 'If a person has invented some new collocation of visible or audible points, - of lines, colours, sounds or words, the law should protect this new collocation'. Can it be argued that any musical work is a new collocation of audible points, and so deserving of protection? After all there are only so many notes in a musical scale, so many colours in a palette. Indeed, it may be argued that all music and art is in some way infringing the copyright of the original owner in some shape or form given the limitations. And given the metamorphosis of sound enabled by digital sampling, it is possible to discern a new work given an adequate test method.

Chafee's second ideal, was described by himself as a single monopoly, - 'Copyright means the sole right to reproduce the work or any substantial part thereof in any material form whatsoever.' This really concerns artistic appropriators. This principle gives the right to the author to control what part or parts of his work reach the market. But taken in the context of the fourth and fifth ideals, the second ideal is contradicted. The fourth states that the protection should not extend substantially beyond the purposes of protection, and the fifth, that the protection given the copyright owner should not stifle independent creation by others.

What must be noted at this point is that these are ideals, and although it would be few the number of commentators who should disagree with them in theory, the economic and public interest rationales are the basic justifications for any copyright. It is the fifth ideal that is of particular relevance as regards this context, in that it concerns exceptions to protection, including the Anglo-American concept of fair dealing and fair use. Other people should be able to use the copyrighted work in the sense that there is no monopoly in the ideas or facts contained therein, but only in the form in which they are expressed.

Copyright protection exists in all European countries. The Berne Convention was signed in 1886, and adherence to it has meant basic harmonisation. Within the EC, the commission has been active in issuing directives that harmonise Member State laws.[11] With the exception of the United Kingdom, in general the remaining European countries have developed their copyright laws with less of a fixation upon economic ideals.

With regard to the convention itself and what it states about the defence of fair dealing or fair use, certain exceptions to the exclusive right conferred on the author are present. Firstly, it permits persons to make quotations from a work providing such is compatible with fair practice and does not exceed that justified by its purposes.[12] Furthermore, it permits countries of the Union to permit reproduction of such works in certain special cases provided such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interest of the author.[13] Other international legislation such as the Universal Copyright Convention[14], and the Rome and Geneva Conventions for the Protection of Performers, Phonogram Producers and Broadcasting Organisations[15], underlined the Berne convention and protected secondary rights respectively. The international copyright conventions and national laws permit free use of protected works in certain special cases in the public interest. This is however not the case for digital sampling. The exceptions permitted by the Berne Convention include the free use of public speeches, lectures and speeches in legal proceedings; use of short excerpts by way of quotation or illustration for teaching; use justified in connection with the reporting of current events; use solely for the purposes of private study and research; and finally, reproduction for 'personal' or 'private' use.[16]

In this jurisdiction and in the United States, according to the doctrine of 'fair dealing' or 'fair use', the copyright owner may not object to minor borrowings from his protected work, and it is certainly arguable that this doctrine could be applicable to alleged appropriationist infringement cases. Since the 1911 Copyright Act in the United Kingdom, and the Federal Copyright Act in America of 1976, this and other defences have been available; fair dealing in the United Kingdom, equivalent to the American defence of fair use. Prior to the 1911 Act, this defence had been recognised in the case law. According to the U.K. Governments Green Paper:

'These exceptions are of obvious importance in that they seek to establish a proper balance between the legitimate interests of the copyright owners and the legitimate desires of users of copyright material.'[17]

It is therefore the courts which have to decide whether copying for any particular purpose is fair use or not, in the light of particular circumstances and expert testimony.

As regards digital sampling from sound recordings specifically, the copyright in sound recordings differs from that of literary, artistic and musical works where originality is required in order for the work to attract copyright. No originality is required for a recording to attract copyright and the substantiality test is slightly different. As it stands, before sampling from a sound recording, the consent of the owner of the sound recording is required. Fair use guidelines have not been extended to include appropriation. The only existing case which explored the possibility of fair use extension was the American case of Acuff-Rose Music v Campbell,[18] which is explored in detail later, suffice to say fair use was deemed inapplicable.

However, at the time of writing, fair use is the only encouragement to artists who remix culture, and have been conservatively interpreted and withheld from many infringers. An expansion of these fair dealing or fair use guidelines, to encapsulate a 'whole being greater that the sum of it's parts' test, may result in no need for a modern day statute, or overhaul of existing copyright law. A classic substantial similarity test would ultimately achieve the same ends. The copyright legislation present today in both America and the United Kingdom and Europe, was designed to prevent cases of 'whole' theft for commercial gain, essentially bootlegging entire works for re-sale, and protecting the lucrative music industry. The fair use doctrine gives a nod to artistic freedom and free speech in the entire copyright law, and can be applied in other areas to overcome restrictions. Court cases of appropriation which focus on fair use and its need to be updated, could begin to open up this cultural quagmire through legal precedent. As a result cases involving sampling rarely reach court.

The main problems isolated by commentators are that the varying applicable pieces of legislation have been framed before the advent of modern musical and artistic technology, and that they are indubitably economically motivated. The outcomes of various cases on the issue of digital sampling and copyright have created the accusation that an economically motivated law is something that is indefatigable. If a law founding principle is with primary regard to economics, then why should artistic license be a major lead to reform?

Chafee's principles re-echoed original copyright ideals, remarked upon later by Nimmer[19], however economic factors have been agreed to be the primary thrust of copyright legislation in Western Europe and America.[20] The Copyright and Patents Act 1988 ('CDPA') in the United Kingdom, and the United States Copyright Act 1976, reflect this. As regards the case law, the 'whole as more than a sum of it's parts test' as applicable to digital sampling had not been tackled in court until relatively recently in the U.S. case of Tuff 'N' Rumble Management Inc. v. Profile Records Inc.[21], and only then could it be inferred that some sampling was permissible. In that case there appeared to be a move away from the more simplistic analyses adopted in preceding cases.

Previously, the question of whether digital sampling was to be regarded as a fair use was taken to be answered by the 1991 case of Acuff v Grand Upright Music Inc.[22] It is interesting to note the ratio decidendi of the judgement, whereby the case was decided on merit alone, with no precedent used or statutory referral. Simply put the law was applied inconsistently, and the fair use concept was remarked upon especially by Justice Kennedy, although the test for 'substantial similarity' was adopted.

Justice Kennedy remarked that any use of copyright material that could be deemed to be a parody of the original, could escape liability even if it were for commercial gain. This is only where the piece draws upon the original composition to make humorous or ironic commentary about that same composition. The parody must target the original, not simply the genre or style of art to which it belongs, or society as a whole, although these may be peripheral to the original parody. The fair use statute in the United States provided these guidelines, under provision of the copyright statute.[23]

This statute supplied a four-factor test for fair use. The first factor itself concerns the definition of parody, or the purpose and character of use. The second adds little to the first, since parodies almost invariably copy publicly known expressive works.

The third factor, the amount and substantiality of the portion used in relation to the whole, is likewise subsumed within the definition of parody. This factor has been isolated by both legal commentators and artists, as a factor that could be extended and modified to incorporate digital sampling. Don Joyce, a member of both MACOS and Negativland[24] argued the case that a sampled composition should be looked at objectively, the test being is the whole musical work equal to more than the sum of it's parts. Integrated in this test could be a failsafe mechanism whereby the identification of a defendant who has merely created a sampled composition for commercial gain, or where the composition reflects so closely on the original to a vast degree can be quantified. In a case such as that liability could be easily identified using a classic test of substantial similarity. This method was used to some extent in the recent Tuff case[25].

Finally the fourth factor, or the effect of the sampled compositions use on the market. It was remarked in Acuff that it is legitimate for parody to suppress demand for the original by its critical effect - a difficult method of measurement, however if the other factors are in place then the latter is of little relevance.

Overall from Acuff, in Justice Kennedys summation, 'it can be seen that where a work targets another for humorous or ironic effect, it is by definition a new creative work.'[26] The fair use factors thus reinforce the importance of keeping the definition of parody within certain limits. The finality of the guidelines for fair use prevented musicians from future unauthorised sampling;

'We should not make it easy for musicians to exploit existing works and then claim later that their rendition was a valuable commentary on the original. If we allow any weak transformation to qualify as parody we weaken the protection of copyright.'[27]

Thus, in Acuff it was held that while the work in question could perceivably qualify the first factor as parody, it was not granted a fair use.

In all cases of copyright infringement, there exists a multiple step analysis;

(1) Does the plaintiff own a valid copyright in the material allegedly copied? (The two layers - music/lyrics and sound recording);

(2) Did the defendant copy the infringed work?;

(3) Is the copied work substantially similar?.

In the later case of Grand Upright Music Ltd. v Warner Brothers, Records, Inc., however, the court seemed to short circuit this analysis, leaping from the defendants' admission that artist Biz Markies recording sampled three words from the plaintiffs song to the conclusion that;

'the only issue, therefore, seems to be who owns the copyright from the plaintiffs song...'[28]

In the United Kingdom if the amount of sample taken amounts to a 'substantial part' of the sound recording (sections 16(1)(a), 16(3)(a) of the CDPA, this may be deemed an infringement. However, it is certainly arguable that the proper test should be with regard to not simply the quantity sampled, but with regard to the overall work in context.

For a large part the United States law governing this area is the same as the United Kingdom, although the amount of case law available in America as regards digital sampling is greater. This is possibly because American rap musicians adapted the digital sampling technology first and foremost, such as 2 Live Crew and N.W.A. The courts have generally shown strong judicial antipathy towards sampling, especially where there is admittance. In the 1991 Grand Upright ruling, Judge Kevin T. Duffy lashed out at musician Biz Markies sampling of the chorus from the 1970's easy listening song, 'Alone Again (Naturally),' in his song 'Alone Again.' Remarkably, Judge Duffy began the opinion by quoting the seventh commandment, 'Thou shalt not steal' - and concluded the opinion by referring the case to the U.S. Attorneys office for consideration of criminal charges, the latter being notable in that the infringement did not involve bootlegging or counterfeiting.[29]

Later, in a 1993 ruling[30], the court stated, 'There can be no more brazen stealing of music than digital sampling.' It is likely that the future cases that would occur in this jurisdiction would adopt the reasoning present in these cases. Digital sampling was taken to be illegal.

No court has ruled giving digital sampling a fair use. Legal experts agree that for a sample to qualify as fair use it must be used for purposes such as parody, criticism, teaching, news reporting, research or some non-profit use. Using a sample merely because it sounds good is simply not enough to qualify for protection as fair use. Therefore unsurprisingly to obtain sample clearances is a time-consuming and expensive undertaking. To legally sample a song it is necessary to obtain permission from the copyright holder of the sound recording (usually the record company), and the copyright holder of the composition (usually the song publisher). Permission from the owner should also be sought when sampling a television show or film. Artists are advised to obtain permission from all copyright owners before any song containing a sample is publicly distributed. Waiting until after the record is distributed can result in lost income, legal expense and the removal of the record from the market. Releasing a record before obtaining clearances also can reduce the bargaining power of any future attempt at negotiating a sample license.

Lawyers often clear samples, although clearance agencies such as the Mechanical Copyright Protection Society Limited (MCPS) in the United Kingdom or ASCAP and BMI worldwide are usually less expensive. Signed artists normally have their record company to clear samples for them, and this is an interesting point to note when the reasons why record companies are unwilling to litigate upon digital sampling is discussed later. The cost of any negotiating and obtaining clearances will later be deducted from any recording advance or royalties the artist may be entitled to.

For unsigned independent artists the process can be much more expensive. It is necessary to write to the record company and publisher of the sampled song, through MCPS, ASCAP or BMI, including a tape of the original song and a copy of the unreleased song using the sample, asking for a quote for a clearance fee. Obviously the record company are going to hold the upper hand as regards bargaining, indeed it is they who ultimately decide whether or not the sample is suitable, and can tack on a price accordingly.

In granting a license, a record company may seek a flat-fee of anywhere between £100 to £5,000 and possibly more. Additionally, a royalty may be added as well as an advance. Music publishers may also ask for a flat-fee or a percentage of income generated from the new song, or indeed both. Depending on how the sample is used, a publisher may also demand a percentage of copyright ownership in the new composition. Because copyright owners are not obligated to grant clearances, compliance with the owner's asking prices leaves the prospective sampler absolutely no choice, or remove the sample. Different factors affect how much money a record company or music publisher will want for a sample. Price may vary depending on how much of the sample is used, how many other samples are used, whether the composition has already been released, and the types of rights a record company is willing to grant. For example, a music publisher may choose to license a sample for sound recordings only. In this case a composition would be unusable contained in a film, video or CD-Rom without an additional license from the music publisher. Under legal threat from major labels, independent artists, such as rap artists, pay to play - a record that utilises sampling extensively can cost upwards of $30,000 - for an art form originally of the inner cities, fees like these are a discouraging barrier.

As a result many artists, especially the unsigned independent, choose to create their own samples by first recording their own 'cover' version of the sampled song. By using this technique, an artist avoids having to obtain clearance from the original recording company. Clearance from the music publisher is still necessary, however, in this instance.

This permission aspect becomes the unavoidable roadblock to anyone who may intend to use the material in a context unflattering to the performer or work involved. But this may be exactly what some artists wish to do.

The CDPA introduced for the first time under English law the concept of moral rights. Section 80 of the CDPA provides that the composer of a composition has the right not to have his work subjected to derogatory treatment. The treatment of a work is derogatory if it amounts to a distortion or mutilation of the composition or is otherwise prejudicial to the honour or reputation of the composer.

There have been few reported cases on moral rights but it is certainly arguable that sampling will infringe the moral rights of the composer of both the original work and any pre-existing work in which the sample appears. In Morrison Leahy Music Limited and another v Lightbond Limited,[31] the defendants sought to release a mix of George Michael compositions having already obtained a mechanical licence to use the musical works from MCPS on behalf of George Michael's publisher. George Michael objected to this on the basis that it constituted a derogatory treatment of the compositions. Although the point was not finally decided, the judge did accept that George Michael had an arguable case that making a remixed record embodying extracts from compositions could constitute derogatory treatment of the composition which was actionable at the composers behest. Following this reasoning, a similar argument could be raised by the composer of any composition that had been sampled without his consent.

It is apparent that found elements or brief fragments of media packed into a new work, absolutely violates the copyright of the owner in law. But to get permission for each and every one of the collage fragments used in an appropriated work may result in fees which can reach into hundreds of thousands of pounds as outlined earlier.

It is no surprise that these clearance fees are set for the lucrative inter-corporate trade. Out of court settlements in infringement cases therefore are much more common. In many cases, recording companies will in actual fact be reluctant to litigate because the defendant may actually be signed to the record company, and be facing a charge of dishonest appropriation without the composers' consent. If a precedent was set from a leading case, the damage that may be done the recording company itself, notwithstanding the music industry's coffers themselves, could be extensive. In this way fees are set at such levels as to be unreachable by the independents. However it is noticeable that the creation and continuation of this art form has always been independent. Signed artists will use sampling less and less often as the costs come out of their royalties.

As regards this jurisdiction, sampling a sound recording without the consent of the original copyright owner will be an infringement of copyright in the original sound recording, if the amount taken amounts to a 'substantial part' of the sound recordings.[32 ] However, no infringement will occur if the actual sounds from the original sound recording are not made use of, such as re-recordings.

This method of test begs the question of what constitutes a 'substantial part'? Depending on what parts of the original sound recording have been sampled, it may be possible to argue that the sound recording bearing the sample does not reproduce a substantial part of the original sound recording. This is subject to the courts as a matter of degree. As mentioned earlier, the 'substantial similarity' test, is the same in this jurisdiction as that outlined in the Grand Upright case. It is 'whether an average lay observer would recognise the alleged copy as having been appropriated from the original copyrighted work.' There may be many cases in which extensive analysis of this element is not needed, for example while much sampling is limited to use of a drum beat or a word or two, there is a trend towards incorporating large portions of a prior recording. There is little question that such uses of qualitatively and quantitatively significant portions of prior recordings would be noted by a lay listener, and would therefore constitute copyright infringement.

It seems that mere proof of a defendant's access to the plaintiff's work, plus a sufficient similarity between the works suffices as direct evidence of copying, which results in an infringement, notwithstanding how great or small the sample is. This is where it seems the law lags, and incurs the same criticisms in this jurisdiction as in the United States.

An analogy reflecting sampling would be if a painter took a handful of the thousands of actual painted dots comprising a pointillist's painting of a mountain, and rearranged them and incorporated them into a painting of a boat, there would be no infringement because a layman would not recognise the appropriation.

Likewise, the determination of infringement in sampling cases should it is submitted be dependent upon the quantity and qualitative importance of the material taken and whether the original would be recognisable to a layman when incorporated into the new song. For the law to simply swipe an arm across the musical boundaries and inhibit the creation of new material through the limited fair use laws, which is in effect what the current copyright laws succeed in doing, is a crude and unworkable method of social justice. Mere admittance of some sampling seems to be enough to provide a successful case for the plaintiff,[33] and has previously resulted in judicial antipathy towards the defendant.[34]

Two main areas are errant in the judicial reasoning, and the nature of the copyright pre-eminence. One is the lack of procedure regarding multi-step analysis, which is present in all other copyright infringement cases, as shown by Grand Upright. Another is sufficient reasoning to justify the benefits the record companies and signed artists were receiving from this litigation.

As was pointed out many decades ago, the act of selection can be a form of inspiration as original and significant as any other. The psychology of art has always favoured fragmentary 'theft', in a way that does not engender a loss to the owner. This kind of 'theft' has a well-respected tradition in the arts extending back to the Industrial Revolution. Many artists nowadays select existing cultural material to collage with, create with, and comment with. Most artists speak freely about the amount they have stolen at one time or another, in the realm of ideas, techniques and styles, most artists know that this is desirable and crucial to the evolution of creative art.

As far back as the early 19th Century, Cubists began to attach materials such as product packaging and photographs to their paintings. This now seems an obvious and perfectly natural desire to embody or transform existing things into their own work as a form of dialogue with their material environment. Appropriation in the arts since that time has now spanned the entire century. It expanded with collage, Dada's 'found' objects and the concept of 'detournement', and peaked in the visual arts at mid-century with Pop Art's appropriation of mass culture icons and mass media imagery reflected in Warhols work.[35] Now, at the precipice of the millennium, it is in digital music where appropriation rages anew as a major creative and legal controversy.

The influence of technology on the human environment has resulted in a relative saturation by canned ideas, images, music and text through multimedia devices. Large increments of daily sensory input are not focussed on the physical reality, but on media saturation. Artists find this worthy of comment, criticism and manipulation. The re-use of culture by artists today is prevented by the international web of copyright restrictions, which inevitably favour the industry and its clients. This encompasses not only the painter or sculptor, but also the musician. MACOS, is a collective of musicians world-wide which oppose the copyrighting of samples[36]. MACOS supply their own material freely through the Internet, or through conventional distribution methods, without incurring any legal ramifications. Their agenda states in a nutshell that sampling is a twenty-first century reality, copyright laws are in serious lag-time to the development of this. The fact that many signed and unsigned musicians throughout the globe are members of this non-profit international network begs the question of whose interests the copyright laws are really trying to protect. Are they still workable, given today's cultural and technological advances?

Digital sampling today expresses postmodernism in much the same sense as the mentioned artists such as Andy Warhol. Both methods of artistic expression involve the re-interpretation of previously documented media in a novel setting. The re-use of existing material in a new social, political and intellectual context is a feature of many forms of post-modern arts practice. The promotion of the re-use of existing material to create new art can perhaps be explained with reference to the way in which digital sampling pays homage to the strong roots of black American music. 'There is a shared black pop classicism in rappers, many of whom look to the late 1960's and early 1970's, particularly to Jimi Hendrix, Parliament-Funkadelic, Sly Stone, Marvin Gaye, James Brown and Bob Marley for musical and spiritual inspiration.'[37]

An interesting American case also recognised the inherent interplay between technological advancements and copyright law, and truly was one instance where the courts of either the United States or Europe actually confronted the situation. In Sony Corp. of America v Universal Studios Inc., the problems that law faces were highlighted, not only in the case of digital sampling, but the entirety of digital technology.

From its beginning the law of copyright has attempted developed in response to significant changes in technology. For example, the development and marketing of player pianos and perforated rolls of music preceded the enactment of the Copyright Act (US) of 1909; and innovations in copying techniques gave rise to the statutory exemption for library copying embodied in section 108 of the 1976 revision of the Copyright Act. Justice Stevens in Sony explains that it was the intention of a new form of copying, the printing press, that gave rise to the original need for copyright protection. 'Repeatedly, as new developments have occurred in the this country it has been Congress that has fashioned the new rules that new technology made necessary.' Stevens recognised, however, the inability of the legislature to predict future advancements.

The advent of digital sampling technology occurred for the most part in the mid 1980's and early 1990's, yet still it seems the law has not caught up with a decade of this technological culture. Meanwhile, it is very apparent how digital technology has revolutionised modern day music creation, recording, and distribution.

It cannot go unnoticed that the main beneficiaries are the record companies themselves, now dominating a huge section of the world market. For example, the music business in Britain is a massive one, on a world-wide basis.

A recent report by the Governments Creative Industries Taskforce, (CIT)[38], set up to maximise the impact of the creative industries, came to some dramatic conclusions. As well as employing 1.4 million people, and generating billions of pounds in economic activity, the creative industries ensure Britain a massive 16 percent share of the world market, the highest of any industrialised sector. Music plays an important part in the above figures, the United Kingdom is the worlds second major player behind only to the United States, and the money the music industry earns outstrips film and television revenue put together.

Digital technology makes the creation and distribution process less expensive, however the technology poses a threat to these vast profits, and this is where the government sit up and take notice. In the main, as the technology has been explained, it is easy to understand how bootlegging becomes simpler, cheaper and of higher quality. Also the fact that music in bit-stream can be posted on the Internet even before the world-wide release of a recording, poses major problems for the music industry. It can be perceived that digital sampling although in many cases an earnest attempt at appropriationist art and redistribution of culture, may have been lumped in to the combative force against bootlegging. After all, the 1991 Grand Upright case resulted in criminal charges levelled against Biz Markie, even though that case was lacking in any element of bootlegging.

Critical commentators have described sampling as merely veiled piracy,[39] and have warned against the extensions of any fair use qualification on sampling. In January 1998 the C.I.T. created the Music Industries Forum, in which copyright, an issue that is crucial to the world of business, was addressed. The Forum concluded, unsurprisingly, that the digital revolution poses threats and offers opportunities, and that its impact on the musical industries is set to increase. The traditional distinctions between the broadcasting and retailing of music may disappear, but, said the Forum, new direct music distributors must be taught that copyright is just as important now as it ever was.

Strong copyright protection in a digital environment is of great importance, and the government is pushing for international acceptance of the principle. The Internet, after all, is a digital global phenomenon, and loopholes in the copyright laws anywhere in the world could consequently undermine copyright everywhere. The recent merger between AOL/Time Warner and EMI is reflective of the growing corporate strength of the record industry in determining how music reaches an audience and market through the Internet.

British Music Rights, established in 1996 to represent artists, publishers and collection societies, and headed by entertainment law barrister Nanette Rigg, report that license fees for sites offering copyrighted music free are prevalent world-wide. This is blatant copyright infringement it is true, however, appropriationist art techniques and sampling culture are completely foreign to bootlegging methods. A resultant muddy area of the law where they are attempting to isolate illegitimate sampling, bootleggers and criminals has resulted in genuine artists and musicians being trapped and constricted by the legislation.

In practice, copyright tends to become an economic right of publishers, who have the capital to enter the marketplace and the capital to defend their property in court. Gradually, the elements of our shared experience become available only for purchase, and the public sphere becomes an intellectual shopping mall, there the common resources of art, language and information are taken from society, held by powerful corporations, and the metered out to those who can afford to pay. Today, five major corporations world-wide control most of the copyrights in the music business.

The EMI Corporation recently paid $70 million[40] to Michael Jackson for the right to manage his catalogue of copyrights, which includes Elvis Presley, Little Richard and most of the early Beatles catalogue. It can be argued that what these companies actually own is part of our shared culture.

The most recent litigation on the subject of digital sampling and copyright occurred in the United States, and may represent a change in the attitudes of courts to recognise appropriation in context. In Tuff 'N' Rumble Management Inc. v Profile records Inc.,[41] the plaintiff alleged that separate songs by the group Run DMC and recording artist Dana Dane sampled portions of drum tracks from the Honey Drippers' 1973 recording of 'Impeach the President.' This purportedly infringed copyrights in both the composition and sound recordings of that song.

Although the plaintiff failed to establish ownership of rights in the composition or sound recording, or to prove evidence of actual copying (or evidence showing an inference of copying, such as access), the court went on to assess whether the plaintiff could show substantial similarity. While the court did not engage in substantive analysis, it did explain that;

'In assessing substantial similarity, courts look at the works as a whole, as opposed to dissecting a work into its constituent elements or features.'

This is exactly the form of analysis which groups such as MACOS and Negativland have espoused, however the fair use extension is left for the most part unexplored. Following the reasoning in the latter case it seems that a small degree of sampling may not create liability. This method of analysis was missing from the earlier decisions outlined above. However, Tuff could be distinguished from the prior cases on the ground that actual copying could not be established by the evidence or by admission. This prevented the usual judicial antipathy towards those who freely admit to unauthorised appropriation of another's work through digital sampling, as shown by other cases. On the other hand, the language in the case suggests that unauthorised samplers will not always be deemed liable for infringement. This may represent a significant step forward in the courts movement towards applying a classic substantial similarity analysis to digital sampling cases, which would negative the need for a fair use analysis.

Courts have been inclined to find the bold use of sampling to constitute copyright infringements, and in those cases where substantial portions of a copyrighted composition and/or sound recording are misappropriated. Where should copyright draw the line? At the present time there is no line, or no commonly used test.

The method of isolating liability deserves an analysis that looks at the whole as being more than the sum of its parts. When underlying rhythms are taken, the analysis is more complicated and should not deserve the short shrift it has been given. In other words it is contended that the mere fact of sampling, despite admission and proof of access, but without proof of substantial similarity, should not be deemed to be infringing use.

Footnotes

1 . Acuff-Rose Music v Campbell, Grand Upright v Warner Bros. 780 F.Supp.182 (SDNY 1991).

2. NYLJ November 3, 1997.

3. See 31 below, also Negativland, Don Joyce, Culture Inc. New York: (1989).

4. Mathews, Max v. The Technology of Computer Music (Cambridge, MA: M.I.T. Press, 1989).

5 . 'Cubase SVT' for Atari ST, MAC and IBM PC.

6. 'Photoshop' for Apple Macintosh.

7. D. Toop, 'The Rap Attack, African Jive To New York Hip-Hop' Vol. 8 (1984).

8. See 16 below.

9. 45 Colombia Law Rev. 504 & 719 (1945).

10. Patterson, L. Ray, The Statute of Anne: Copyright Misconstrued, 3 Harv. J. Legis 223 (1966).

11. (1992) O.J. C138/1.

12. Art. 10(1).

13. Art. 9(2).

14. September 6, 1952, (rev. Paris 1971).

15. October 26, 1961.

16. Berne Convention, Paris Act 1971, Art 2(1), (2), 9(2), 10(1), (2) & (3).

17. Cmnd., 8302, Chapter 13, para. 2.

18. See 20.

19. Nimmer, Melville and David. Nimmer on Copyright: A Treatise on the Law of Literary, Musical and Artistic Property, and the Protection of Ideas (New York: M. Bender, 1978- ).

20. See Falstrom, Carl. 'Thou Shalt Not Steal: Grand Upright and the Future of Digital Sound Sampling in Popular Music,' 45 Hastings Law Journal 359 (1994).

21. 42 U.S.P.Q.2d 1398(SDNY 1997).

22. 780 F. Supp.

23. 17 U.S.C. 107(1988 ed. and Supp. IV).

24. See 31, 3.

25. Financial Times, 5th Oct. 1997.

26. Acuff-Rose Music v Campbell, Grand Upright v Warner Bros. 780 F.Supp.182 (SDNY 1991) at 263.

27. 780 F. Supp. 182 (SDNY 1991).

28. See Falstrom, Carl. 'Thou Shalt Not Steal: Grand Upright and the Future of Digital Sound Sampling in Popular Music,' 45 Hastings Law Journal 359 (1994) at 183.

29. See Falstrom, Carl. 'Thou Shalt Not Steal: Grand Upright and the Future of Digital Sound Sampling in Popular Music,' 45 Hastings Law Journal 359 (1994) at 280.

30. Jarvis v A & M Records 827 F. Supp. 282,295 (D.N.J. 1993).

31. [1993] E.M.L.R. 144.

32. Sections 16(1)(a), 16(3)(a) of Copyright, Designs and Patents act 1976.

33. Szabo v Errison 68 F3d 940, 944 (5th Cir.1995): see also Jarvis 827 F. Supp. at 289.

34. Grand Upright Music, Ltd. v. Warner Bros. Records, Inc., 780 F. Supp. 182 (SDNY 1991).

35. Wittlich, Gary. Appropriationist development in the 20th Century, (Englewood Cliffs, N. J.: Prentice Hall 1987).

36. Musicians Against Copyrighting of Samples. <http://www.icomm.ca/macos/>.

37. See 'A New Bag for Hip-Hop', New York Newsday, Apr. 19, 1990, Part 11, at 11.

38. Financial Times, 5th Oct. 1997.

39. Thom, J. C. 8 Loyola Entertainment Law Journal 297 (1988).

40. 'Sound on Sound', Issue 31, November 1996.

41. 42 U.S.P.Q. 2d 1398 (SDNY 1997).


This is a Student Prize published on 29 February 2000.

Citation: McKenna T, 'Where Digital Music Technology and Law Collide - Contemporary Issues of Digital Sampling, Appropriation and Copyright Law', Student Prize, 2000 (1) The Journal of Information, Law and Technology (JILT). <http://elj.warwick.ac.uk/jilt/00-1/mckenna.html>.New citation as of 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2000_1/mckenna/>


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