Myth, conjecture, incomplete facts, and misinformation have always kept people from understanding copyright law. In fact, today many of the opinions about copyright law are largely shaped and driven by copyright holders who, it must be noted, commonly believe that the purpose of copyright is to protect their works from infringement. But as it’s clearly expressed in the United States Code, that’s not the central purpose of copyright. The a purpose of copyright is to “To promote the Progress of Science and useful Arts.” The United States Copyright Office even doubles down on this declaration in its own description of the function of the copyright office: “the purpose of the copyright system has always been to promote creativity in society…” Any serious conversation about the role of copyright, creativity, and the arts must begin with this key fact: Copyright was created to promote creativity.
And while copyright law alone can be difficult to comprehend, the implications that sampling holds for copyright law continues to be (unnecessarily) an even murkier terrain for people to navigate. Just as with copyright law, the framing of sampling in the public’s view is also based on myth, conjecture, incomplete facts and misinformation. Today, many of the opinions about the art of sampling—even within the Hip Hop community—are shaped and driven by opponents who either know very little to nothing at all about the art of sampling or those people who, believing that the art of sampling is neither an art, a music process, or expression of creativity or originality, have a negatively skewed view of it.
This is the default state of things that fuels much opinion before copyright and sampling are even taken up in the Hip Hop community, which, let’s be honest, has longed been plagued by many people with strong opinions that are often grounded in conjecture, myth, legend, and other non-facts. Thus, I wanted to preface this follow-up editorial by acknowledging this problem in Hip Hop.
I also want to acknowledge that it isn’t always easy to evolve when new information is presented to you, especially when this information is counter to what you’ve always believed or heard about a particular a topic. (I know this first-hand. When I learned that the Hip Hop’s earliest musical roots do not come from nor were inspired by the Jamaican music tradition of the 1970s, it was hard for me to embrace this truth upon discovery, as it was counter to what I’d previously been told, read, and believed.) As is often the case, the more complex the issue, the more room for misinformation and conjecture, which naturally leads to flawed reasoning. This occurs even in a court of law, but at least in that space there’s an appeals system and rule of law that members of the law community respect. There are no written rules in Hip Hop to follow, but fortunately for our community, knowledge is deeply respected.
Aside from the above preface, which I hope sets the framework and tone for helping people to properly tackle the complex juxtaposition of art, creativity, originality, and copyright—each an issue that the art of sampling throws into question—what I wanted to do with this follow-up editorial is expand my explanation of each of the Top 5 Myths About Copyright and Hip Hop with more detail. And in this regard, I wanted to provide some sources, as some commentators were appreciative but perhaps a bit skeptical of the information I provided.
In the comments section of my original editorial, two commentators inquired about the “sources” or “protocols” that I used for making the “claims” in my original editorial. Since I’m not certain which “claims” these commentators were referring to specifically, I will address each myth one by one. But first, it’s important to note two things: 1) With regards to copyright law, there are no sources that could ever disprove the information that I provided, because they are all facts based on copyright law as it is codified in the United States Code—the U.S. Code is the general and permanent federal statutes (laws) of the United States; and 2) With regards to the degree of difficulty involved in doing sampling well or whether sampling includes any sound that can be recorded, these are inherent facts: The musicians of every music tradition can be distinguished by skill and talent; and sampling can incorporate any sound, be it music or not.
#1 Sampling is NOT piracy
As I mentioned in my editorial, “piracy” is the wholesale, verbatim copying and distribution of copyrighted works. For instance, copying an entire song, movie, or software program, etc. and then selling/distributing that copy is piracy—this is what piracy has always meant, and it is what Congress has officially recognized piracy to mean since the 1960s:
“The problem of record piracy has not been dealt with… We are persuaded that the problem is an immediate and urgent one, and that legislation to deal with it is needed now. The seriousness of the situation with respect to record piracy… is unique… The committee agrees that it is necessary, without delay, to establish Federal legislation prohibiting unauthorized manufacturers from reproduction and distribution of recorded performances.”
Note “recorded performances” refers to records (sound recordings) in total, i.e. ENTIRE songs. The use of a snippet of a song from a sound recording is not piracy, just as the use of a snippet of a paragraph from an article or a book is not piracy. Congress makes no distinction between copyrightable subject matter. In other words, sound recordings, books, photographs, and other works are all exposed to de minimis (small, insignificant takings) or fair use usages because all receive the same limited protection—no copyrightable subject matter receives greater protection than the next . Thus, sound recordings are to be treated the same as all other copyrightable subject matter:
#2 You CAN Be Sued for Samples on a Free Mixtape
Because a mixtape is free does not mean that the samples on it are automatically non-infringing. So someone who makes and/or distributes a free mixtape that contains samples on it can be sued for copyright infringement. One of the most notable recent examples of this fact is the lawsuit that Lord Finesse filed against Mac Miller. The lawsuit never made it to trial—as Miller and Finesse settled out of court—but what was at dispute was Miller’s use of Lord Finesse’s instrumental track (beat) from his song “Hip 2 Da Game” (1995) on Miller’s song “Kool Aid & Frozen Pizza,” off of Miller’s K.I.D.S. mixtape. Miller never said that he made the beat, nor contested that the beat was Finesse’s, but Rostrum, Miller’s label at the time, implied that the use was OK since K.I.D.S. was a free mixtape and, thus, they never profited from Finesse’s music.
Notwithstanding the fact that the free K.I.D.S. mixtape was used to help launch Mac Miller’s career (he was able to earn revenue from shows and other means), just because the unauthorized used of a copyrighted work—any copyrightable subject matter—is made free does not exclude it from copyright infringement.
But all of this said, also bear in mind that this does not necessarily mean that the filer of a copyright infringement suit will prevail in court. Miller could have taken his chances in court using the affirmative defense of fair use. There is a huge misconception in the United States that someone is guilty of something whenever someone else files a lawsuit against them. Wrong. The United States is one of the most litigious nations in the world; here, people file frivolous lawsuits all the time. For example, Jay Z was recently sued by TufAmerica for a sample that he used in his song “We Run This Town.” Manhattan Federal district judge Lewis A. Kaplan dismissed the copyright infringement case brought by TufAmerica, citing: the sound “has essentially no quantitative significance” to the original composition and thus cannot be protected by copyright law . Many samplers would likely win in court if they choose to contest the lawsuits, but routinely don’t because they don’t have the financial and legal resources to take a case to trial, a reality that many who file lawsuits count on.
#3 Sampling Is Not Something Everyone Can Master
I’ve studied and written about beatmaking (this of course includes the art of sampling) extensively for many years, and I wrote The BeatTips Manual, the most comprehensive book on the topic. My studies have allowed me to interview many different beatmakers—in great detail—about their beatmaking processes; interviewees included Marley Marl, DJ Premier, 9th Wonder, DJ Toomp, and more acclaimed sample-based beatmakers (producers). I’m also a beatmaker/rhymer myself. So I can say with some authority, that there is NO reputable sample-based beatmaker (producer) that would ever say sampling is an art form that just “anyone” can do well; it’s not easy to master. Mastering the art of sampling does indeed require technical skill, imagination, artistic understanding, years of study and practice and a fundamental understanding of music.
#4 It’s Legal To Sample 4 Seconds Of Any Recording
There is NO law in the U.S. Code that expressly dictates how many seconds—4 seconds or otherwise—that someone can (or can not) sample a copyrighted sound recording. Any court decision that implies otherwise is NOT the law of the land; it is merely that particular court’s decision and perhaps precedent. In other words, other courts can disagree with previous court rulings. Ultimately, the length of a sample is a factor, but only one factor among many used to determine where that sample is infringing or not.
#5 Sampling Involves the Use of Pre-Recorded Songs Only
Source material for sampling does indeed include any recorded sound or any sound that can be recorded. Songs, instruments, voices, conversations, a car door closing, any recorded sound can be sampled.
If you’d like to learn more about the art of sampling and copyright law and learn more about the truths behind all the misinformation , please read my book The Art of Sampling: The Sampling Tradition of Hip Hop/Rap Music and Copyright Law.
- “The exclusive rights of the owner of a copyright in a sound recording are limited to the rights specified by clauses (1), (2), and (3) of section 106.” Additionally, during the passage of the Sound Recording Amendment of 1971, Congress explicitly stated that “this limited copyright does not grant any broader rights than are accorded to other copyright proprietors….” (Sources: U.S. House. The Committee on the Judiciary. Copyright Law Revision, 1976, (to Accompany S.22) Report Together with Additional Views (94 H. Rpt. 94-1476) See: 17 U.S.C. §106. Exclusive rights in copyrighted works; 17 U.S.C. § 114. Scope of exclusive rights in sound recordings.)
- (Sources: TufAmerica, Inc. v. WB Music Corp. et al, No. 13-07874 (S.D.N.Y. Nov. 5, 2013); New York Times, “Judge Dismisses a Suit Over Jay Z’s ‘Run This Town’”)
Amir Said is the author of The Art of Sampling, the most comprehensive exploration of sampling in the Hip Hop/rap music tradition and copyright law ever written. The book is currently available for purchase.