If it were so easy to make samples and
they were so disposable that anyone
could come up with them, then there
would be no need to sample older work
and no one would do it.
Imagine I write "I shot the sheriff" or "That is not dead which can eternal lie" or "x considered harmful" or "I've got 99 problems" or "We few, we happy few" or "Beam me up, Scotty" or "Light of my life, fire of my loins" or "Of the people, by the people, for the people" or "Less space than a nomad".
I'm not just stealing a sequences of words I think sounds good. I'm referencing other works - partly to evoke their meaning, partly so when you recognize the reference it communicates that I am like you, that we have shared background, that we've read the same books, heard the same songs, visited the same websites.
Is taking a few notes from a song really so different to taking a few words from a book, speech or essay?
This is why a search engine company can produce a thumbnail of a page without running afoul of copyright law. (See Kelly v. Arriba Soft Corporation )
It's also how commercial parody can (though not necessarily) be done without a license from the original author. (See Campbell v. Acuff-Rose Music, Inc.)
It's also why a judge recently decided that Google's book scanning system, which does not have copyright permission from the owners, is sufficiently transformative without reducing the primary market that it is legal under fair use. (See http://www.wired.com/threatlevel/2013/11/google-books/ , which has a link to the judgement.)
As you say, it is not legal to copy just the sample. But sample-based music can more transformative than a simple copy, and the combination of factors may make it fair use.
Unfortunately, there's no laws covering these details and the courts haven't worked out the details. The highest decision, from the 6th Court, says that de minimis doesn't apply even for a 3 note sample, but fair use might. (See Bridgeport Music, Inc. v. Dimension Films .) Many people are against this interpretation, including perhaps other courts. Other districts have not decided on this sort of case, so it's still ambiguous.
Not everything which is valuable has government-granted monopoly rights. The US does not accept "sweat-of-the-brow" as a basis for copyright, which is why databases cannot be copyright, even if the database itself is valuable. So your argument "it's difficult .. therefore valuable ... and their owners deserve to have rights over them" is, currently, un-Constitutional. (See Feist Publications, Inc., v. Rural Telephone Service Co., for the decision which decided that the Constitutional definition of copyright is based on originality, not difficulty.)
> Your analysis omits the concept of "transformativeness."
You are correct that I am not necessarily considering cases where a sample is modified extensively before being used. Though I will say that, though that might make it legal to use without permission, I myself don't necessarily think that it should be legal even were it changed to an extreme degree. It's something I'd have to think about further and would surely require a case-by-case analysis.
That being said, I do think most sampling that I am aware of would not be transformative. In general -- and maybe this could even be a good theoretical legal test, though it's not for me to decide -- if I listen to an original song, and then a newer one which samples the original, and recognize the sample, then I wouldn't consider it transformative.
> This is why a search engine company can produce a thumbnail of a page without running afoul of copyright law.
I don't know the legal implications of this, but that is surely a very different situation than sampling music. The thumbnail is to give users a quick preview of what to expect when they click into the page. A reused sample is doing just that -- being literally reused in the same way it was used originally except in someone else's work. Surely this disparity of use must have some legal meaning, as I do feel it surely has moral meaning.
> It's also how commercial parody can (though not necessarily) be done without a license from the original author.
Indeed, but again I don't think I necessarily see how that applies to a reused sample in any case except where the new song actually parodies the original (which certainly does happen on occasion, with Weird Al being an obvious example).
> It's also why a judge recently decided that Google's book scanning system, which does not have copyright permission from the owners, is sufficiently transformative without reducing the primary market that it is legal under fair use.
I'd argue that plenty of sampling does indeed reduce the market for the original. Plenty of people seek out a song because they've heard it somewhere and now that "catchy tune" is in their heads. The "catchy tune" gives it economic value, which is being essentially stolen when someone samples without permission.
The Kanye West / Daft Punk / Edwin Birdsong example that I gave elsewhere in this thread exemplifies that. I'm sure that plenty of Kanye West fans who might have bought or otherwise sought out (thinking more of exposure through ads / radio than piracy here) Daft Punk's original wouldn't bother or need to since Kanye's version is essentially Daft Punk's with some rap verses thrown in. That catchy hook is the same in both. EDIT: to be clear, assuming Kanye / Daft Punk obtained the necessary rights I of course have no problem with these songs existing.
> Not everything which is valuable has government-granted monopoly rights. The US does not accept "sweat-of-the-brow" as a basis for copyright, which is why databases cannot be copyright, even if the database itself is valuable.
That is a good point, though I think the combination of a sample being both copyrightable and valuable is a potent argument to those who would say that a misappropriation of a sample is just a "small-potatoes" or irrelevant infraction, legally or ethically. So I suppose I wasn't arguing entirely on the basis of law with that statement.
The courts agree with you completely. The Supreme Court ruling Campbell v. Acuff-Rose Music says that any such analysis must include four factors: if it's commercial/non-commercial, the nature of the copied work, the amount copied, and the effect of the copy on the market for the original work.
Parody requires that the original music be somehow recognizable, so the courts disagree with your "do I recognize the sample" test.
The "catchy tune" example you gave may be a violation of copyright, or it may be fair use. For example, if the original song was from the 1970s, with a current market of 20 iTunes+Amazon+whatever sales per year, and the new song comes out making 1 million sales, then it's fair to say that the new song did not greatly affect the primary market. A full analysis would need to cover at least those three other factors as well.
I don't know anything about the Kanye West / Daft Punk / Edwin Birdsong example. I follow so little of modern music. I've certainly read more copyright cases than I've heard songs from all three of those composers combined.
More classically, consider Ella Fitzgerald's famous and lovely scat version of the song "How High the Moon", in which she quotes from other popular songs, including "The Peanut Vendor", "Heat Wave", "A-Tisket, A-Tasket", and "Smoke Gets in Your Eyes". These are music samples, which include the catchy hook from those songs, but where I think anyone would agree there was no market confusion.
I do not know how copyright issues were settled for that recording, nor in live performances (in jazz improvisation, the artist make things up on the spot; how then would all the original artists get paid?). However, it was before Grand Upright Music, Ltd. v. Warner Bros. Records Inc. , which is the court case that established that samples were under copyright law. During Fitzgerald's time her use was likely "accepted practice and such copyright considerations as these were viewed as largely irrelevant." (Quoting http://en.wikipedia.org/wiki/Fair_use )
We had a very vibrant music industry before Grand Upright Music v. Warner Bros, and it allowed genres like scat which incorporated snippets of other copyrighted material. However, do note that that Fitzgerald wasn't "sampling." There are different copyrights for the lyrics, the music, and the musicians, and sampling covers recordings. This is why some hip hop artists use "interpolation" - replaying the music but with different instruments, and only paying the songwriter and not the artist or label. It may sound very similar, but it's not the same and so not covered by the "sound recording" definition used in Bridgeport Music, Inc. v. Dimension Films.
I am not so versed in music copyright at software and written works, and didn't learn about interpolation until just now. When you say "sampling", do you also mean to include interpolation?
BTW, I see you use the term "stolen." The better term is "infringed." Copyright is a limited monopoly protection which expires, and so far copyright violations are part of civil law rather than criminal. While "stolen" has connotations of property rights and criminal law. Using the concept "stolen" may lead to incorrect assumptions when some concepts are incorrectly transferred.
I mean, if you are going to make a mix and play it for some friends or as a DJ at a local club or even release something online for free, then fine, it's still probably technically illegal but I'm not going to get all rustled up about that. But if you start making any legitimate money off it, you better have gotten those rights secured or else you deserve whatever legal consequences you have coming to you -- in both a moral and a legal sense.
> The members of the rap music group 2 Live Crew—Luke, Fresh Kid Ice, Mr. Mixx and Brother Marquis—composed a song called "Pretty Woman," a parody based on Roy Orbison's rock ballad, "Oh, Pretty Woman." ... Acuff-Rose Music refused to grant the band a license but 2 Live Crew nonetheless produced and released the parody. ... The Supreme Court held that 2 Live Crew's commercial parody may be a fair use within the meaning of § 107.
You are free of course to suggest that the law is otherwise, and even that the law itself is immoral and unethical. But as it stands, it is sometimes legal to copy portions of another's work, without a license, sell it for a profit, and be within the law.
And I am free to continue to believe that commercial parody is ethically and legally fine.
But for something to be a parody of something else it needs to comment upon or mock the original. Most songs, whether they use someone else's samples or not, don't fall into that category.
No it shouldn't. Or at least it should still require consent of the original sample owners (and any compensation that would entail).
If it were so easy to make samples and they were so disposable that anyone could come up with them, then there would be no need to sample older work and no one would do it. But in actual fact it's difficult to create catchy samples, and they are therefore valuable, and their owners deserve to have rights over them.