From Zappa to Kaskade—Sampling and Copyright Revisited

Samples are electronic snippets taken from a musical recording. They became the building blocks of whole genres of music starting in the 80’s and made work for lawyers for the owners of the copyrights in the sampled recordings. A thoughtful op-ed by Steve Martocci in the July 1 Billboard Bulletin reminded me how frustrating sampling and copyright still are for artists and rights owners. “Kaskade’s Free Music: Beer, or Speech? A Look at Sampling, Creative Commons and Copyright.” This revisit is the result.

A powerful cause of the frustration is technology. It’s ridiculously easy to make a perfect copy of a slice of someone’s recording and drop it into your own work. What you do with the slice after that takes talent if the goal is creating a new work people want to hear. But the technology before digitized music forced you to go to the owner of the master tape of a recording if you wanted a high quality snippet to put into your recording. And you’d expect to pay.

So in the old days people wanting to use samples had less need to understand copyright law. They just needed to know “how much?” If they agreed to the price, they got a tape and a license to use it. They only wanted the tape, but without the license they could not use it in their new recording. People got tapes unlawfully, but the law requiring the license is still the law and many sample artists are not happy about it.

Since technology puts music everywhere and kids in grade school can make perfect copies of almost any recording, the bother of getting permission and paying for a license is frustrating to many artists. Kaskade [Ryan Raddon] is a top recording artist and DJ expressing the frustration by offering the world the remix parts from his single Ain’t Gotta Lie—with a dare. You can download them at http://kaskademusic.com/AintGottaLieRemixParts/. Stems are separate subparts of recordings used to make a new final recording. A stem can be the sounds caught by six microphones around a drum set mixed down to one track, and it can be a sample.

Trent Reznor [Nine Inch Nails] did this as far back as 2005 with The Hand That Feeds so fans could create their own music. Kaskade’s release appears to be demonstrating why copyright law should not make it so difficult to lawfully use a sample. He’s saying the samples are just raw materials for a new work no one else could produce. He is staking out a claim as an EDM virtuoso, and dares the world to do as well. Like Michelangelo saying there’s some Carrara marble, see what you can do. Or Yo-Yo Ma handing you the 1733 cello he calls Petunia and saying “OK, your turn.” Don’t count on this happening.

Frank Zappa was a visionary and saw all of this coming in 1986. His Grammy Award winning “Jazz From Hell” is probably the first album with a copyright notice warning against sampling. A prescient article by Molly McGraw later quoted an earlier interview where he said “If you’re going to do sampling, you have to give some consideration to the people who have already gone through a lot of time and trouble to put specialized sounds on records, and not be a bandit and steal those things from somebody else.” Molly McGraw, Sound Sampling Protection and Infringement in Today’s Music Industry, 4 Berkeley Tech. L.J. 147 (1989). Available at: http://scholarship.law.berkeley.edu/btlj/vol4/iss1/3

Copyright owners have held that view ever since, even if they license their recordings for free through a non-profit like Creative Commons. And Martocci is asking Kaskade about whether there is a license for the stems offered to the public. Without one, the products by people accepting the dare and using the stems can’t lawfully be distributed to the public.

The sample artist counterargument to Zappa is basically that music is in the air all around us and is free by its nature. Yet copying part of a recording differs from using a few notes from an earlier work as artists have always done. Some works have titles announcing that fact. Variations on a Theme by Joseph Haydn (Brahms), Introduction and Variations on a Theme by Mozart (Sor), Variations on a Theme by Erik Satie (Blood, Sweat & Tears).

Copying and using part of another’s recording is not the same. You’re not quoting memorable notes or rhythms you remember, you’re copying a performance. You’re using someone else’s “lot of time and trouble to put specialized sounds on records.”

Another sample artist argument is the tiny amount of another’s recording they use. Years of litigation on how much was too much produced confusion on this point. Then the Sixth Circuit Court of Appeals cleared things up by adopting a simple rule, “Get a license or do not sample. We do not see this as stifling creativity in any significant way.” Bridgeport Music, Inc. v. Dimension Films 410 F.3d 792 (6th Cir. 2005). The case involved a two-second guitar chord.

One more argument is the good done for copyright owners in sales of the original recording resulting from a new audience discovering the original from a sample in someone else’s record. That definitely happens. But the copyright laws don’t recognize an unexpected profit exception to owner’s exclusive rights to make copies of her work or prepare derivative works based on it.

Copyright law reform is called for on many fronts. The complexity of a solution on sampling is too great to discuss here. It seems safe to assume, however, that price and procedure-free sampling will not be added to the law because it’s easy and the person taking the sample loves the work so much they just had to include a snippet in their own.

About Craig Pinkus

Craig Pinkus is a partner in the Intellectual Property Group. He also is a member of the Litigation and the Sports, Entertainment and Media Groups. He assists clients with a broad range of disputes and transactions involving all areas of intellectual property, entertainment, and other complex business arrangements. He has conducted trials and arbitrations throughout the United States and has argued appeals before the Seventh, Sixth and Federal Circuit Courts of Appeal, the Indiana appellate courts, and United States Supreme Court.
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