Is digital music sampling and creating music remixes a way of creatively making popular new music, or is it copyright infringement? In today’s digital age, with applications like Garage Band, Snapchat and YouTube, anyone can be a music producer and upload their songs to the internet via websites like SoundCloud. It is easy to remix popular songs by simply using a laptop computer and because of this, more and more people are beginning to produce music they try to call their own, but often contain parts of other artists’ songs. In today’s world, most popular songs are remixes and mashups. Creating these remixes and using parts of other artist’s songs is simple to do, but may be copyright infringement and is possibly illegal. Many people think the copyright laws are outdated and Congress has not clarified the rules regarding creating remixes and digital music sampling today. Laws need to change to fit the rise in popularity of sampling, because the lack of laws surrounding the issue currently is not effective.
According to Wikipedia, sampling is the act of taking a portion, or sample, of one sound recording and reusing it as an instrument or a sound recording in a different song or piece. Most people today have heard the song Holy Grail by Jay Z featuring Justin Timberlake, which features the lyrics “and we all just entertainers, and we’re stupid, and contagious, now we all just entertainers,”. However, these lyrics are originally from the song Smells Like Teen Spirit by Nirvana. Jay Z and Justin Timberlake took these lyrics and used them in their own song as a sample. There are legal ways to sample music from other artists and there are illegal ways, but the ideas are the same – a portion of one artist’s work is used in another artist’s production.
Early sampling was based on using pieces of other artists’ recordings without permission, but now that some of the music utilizing digital sampling is making money, some artists, publishers, and record companies are taking legal action, claiming copyright infringement. When electronic music first became popular in the 80’s, it blew up very quickly as it became even easier to lift parts of songs digitally and use them in a different manner. In John Lindebaum’s History of Musical Appropriation, he states “sampling technology is a stage in the logical progression of musical evolution and should be evaluated as such” (Lindebaum 4). In his thesis, he discusses creativity and addresses that sampling adds to the possibility of more creative production and how it is evolving along with the music.
A copyright is an exclusive right, granted by the government, to the author of a particular work. This includes the right to copy and distribute the work, the right to be credited for the work, and the right to determine who may publicly perform, adapt, or benefit financially from the work. However, many people do not know the exact laws that Copyright covers. Jeffery R Houle writes, “The problem is that many record producers and artists believe that they are not infringing on another’s rights if they only use a small part of the copyrighted work and incorporate it into their own work” (Houle Loyola Law Review). Music is possibly the most restricted and licensed form of copyright protected works and laws have not been updated since the Fairness in Music Licensing Act of 1988, which increased the number of venues exempted from obtaining a license to play music. It was passed along with the Copyright Term Extension Act, which extended the life of a copyright to the life of the author plus 70 years instead of the original 50 years from the Copyright Act of 1976. It has been almost 30 years since the Copyright law has been updated to reflect current technology and musical interests.
When it comes to creating remixes, the remix is what copyright law calls a “derivative work”. Permission from the original copyright owner to create that derivative work is necessary to avoid committing infringement. “Infringement” is the legal term for violating someone else’s copyright by illegally copying or distributing a song or failing to give proper credit to the song owner. It becomes more complicated because each piece of recorded music actually has two copyrights. One is for the song and one is for the master recording. Permission is needed from both copyright holders to legally remix a copyrighted song. In addition, the right to perform or play a song in public is one that belongs to the copyright holder. Permission is needed to play music in public unless the music is in the public domain or the use of the music qualifies as fair use. Some songs exist in the public domain and are not protected by copyright, but only the sheet music would be open for use, not the recordings. (Brett Snider, Is It Illegal to Remix Music?)
Fair Use is a defense to copyright infringement designed to encourage innovation, creativity, parody, and other beneficial results. Fair Use in music is analyzed through four main questions – What is remix being used for? Has the original song been released yet? How much of the original song did you use? Has your remix diminished the value of the original song? One of the biggest problems of a Fair Use defense is that Congress has left it up to the states to decide, so there is no clear federal ruling. Noah Sutcliffe, author of Copyright Concerns for Digital DJ’s says, “There’s no easy way to determine if the Fair Use defense will work to protect you from copyright infringement and it is an affirmative defense which means the alleged copyright infringer must prove your remix fits within Fair Use” (Noah Sutcliffe). Music sampling and remixing today is more popular than it ever has been, which means there are more combinations of sampling and digital use of other artists’ work making it only more difficult to determine what exactly fits into copyright infringement.
Lindebaum’s thesis claims, “the license system that has developed reflects the economic power of the music industry rather than goals of the Constitution or the desires of artists. Only songs that are successful, like the Verve’s “Bitter Sweet Symphony,” are responded to by lawsuits, prompting the phrase “where there’s a hit there’s a writ.” One popular copyright infringement case was that of Rick James suing MC Hammer for his use of the track “U Can’t Touch This” (which sampled his 1981 song “Super Freak”), but the suit was settled out of court when Hammer agreed to credit James as co-composer and cut him in on the millions of dollars the record was earning. This shows that not all copyright suits must go to court or even be under investigation for long periods of time because artists have the ability to meet with others and either discuss a settlement, or a way to work together on their art.
Popular groups today will obtain prior permission to use samples from other artists. This is called “clearing”. They get permission to use the sample and will pay an up-front fee or a cut of the royalties to the original artist, but smaller independent bands usually lack the funds to clear samples and they are at a disadvantage. A way around this for smaller bands is a Creative Commons license which allows legal sampling of the work if the license does not carry the No Derivatives tag (which means it cannot be used) and the derivative work complies with other license conditions. Creative Commons is an American non-profit organization devoted to expanding the range of creative works available for others to build upon legally and to share. (“Frequently Asked Questions”. Creative Commons. 4 August 2016. Retrieved 20 December 2011)