A “Sample” of Bad Law

This ruling is foolish, counterproductive, counterintuitive, and shows an egregious lack of understanding of what sampling actually IS:

A federal appeals court ruled Tuesday that rap artists should pay for every musical sample included in their work — even minor, unrecognizable snippets of music.

Lower courts had already ruled that artists must pay when they sample another artists’ work. But it has been legal to use musical snippets — a note here, a chord there — as long as it wasn’t identifiable.

The decision by a three-judge panel of the 6th Circuit Court of Appeals in Cincinnati gets rid of that distinction. The court said federal laws aimed at stopping piracy of recordings applies to digital sampling.

“If you cannot pirate the whole sound recording, can you ‘lift’ or ‘sample’ something less than the whole? Our answer to that question is in the negative,” the court said.

“Get a license or do not sample. We do not see this as stifling creativity in any significant way.”

Some observers questioned whether the court’s opinion is too restrictive, especially for rap and hip-hop artists who often rhyme over samples of music taken from older recordings.

“It seems a little extreme to me,” said James Van Hook, dean of Belmont University’s Mike Curb College of Entertainment and Music Business. “When something is identifiable, that is the key.” [AP]

Van Hook is exactly correct: “identifiable” is the philosophical copyright crux, and has been legally until now.

Millions of sound recordings are out there in the world and make up a significant part of OUR culture. They belong to us other than as protected by copyright law to provide sufficient remuneration to incent creators to keep on creating. The use of a small digital sample of recorded music that is unidentifiable in its origin does nothing to harm the sanctity of the original recording, does not reduce its income potential in any way, and is simply an economical shortcut from having to record the snippet yourself. The availability of this material is EXACTLY an incentive to create, which is what copyright law is supposed to be about in the first place.

If in fact this ruling is to stand on logic, then we need a new system in place where all samples are available for license on a tiered structure tied to length of sample, akin to the system whereby all published songs are available to be recorded by anyone for a set fee. As it now stands, sample rights fees are negotiated on a case-by-case basis and the owner of the sound recording rights can deny their usage altogether, such as in the case of the Beatles vs. DJ Dangermouse regarding The Grey Album, which led to the Grey Tuesday protest.

Finally, the ruling seems to turn on the fact that NWA “admitted” to using the sample:

The lower court in 2002 said that the riff in Clinton’s song was entitled to copyright protection, but the sampling “did not rise to the level of legally cognizable appropriation.”

The appeals court disagreed, saying a recording artist who acknowledges sampling may be liable, even when the source of a sample is unrecognizable.

Noting that No Limit Films “had not disputed that it digitally sampled a copyrighted sound recording,” the appeals court sent the case back to the lower court.

So now no one will ever admit to sampling unless it is identifiable, which means in reality that they won’t admit it until someone identifies it. This strikes me a counterproductive.