Sampling, Fair Use, and the Creative Commons

We here at Netlabelism often come across sample-laden music while sifting through the netaudio world.  We’ve seen quite a range, from those who obviously plagiarize others’ work, to those who generate their own sounds and samples.    When I think of people involved in sample heavy albums, e.g. Street Lab (see their ‘bootleg’ album), or, more popularly, the work of Girl Talk (aka Gregg Gillis), I’m struck with the impression that they’re really ‘sound-collage’ artists, not musicians by traditional definitions.  On the other hand, they could be considered 21st Century turntablists, where laptops and midi controllers are the ‘instruments’ of choice for mixing and matching audio and thereby creating new works.  But at what point does a work contain too many samples, and how do we evaluate it?  In this article, I discuss sampling, fair use, and the Creative Commons.  In conclusion, I present three factors which seem to determine whether or not sampling is ‘right’ or ‘wrong.’

Gillis has claimed fair use in his work and stands by his decision to keep with his format.  His commitment continues in spite of predictions a few years ago that his albums are lawsuits waiting to happen.  As of today there have been no such lawsuits.  In fact, he reckons he’s “probably turning a chunk of …listeners on to new artists.”  Gillis generally re-appropriates others’ music for commercial release, advertised as pay-what-you-want for download, except his two most recent albums which are available for free through the Illegal Art label.  Although I won’t claim that Illegal Art is a netlabel, by a more broad definition we could claim they are distributing netaudio, which is also a focus of Netlabelism.  Next, let’s take a look at the definition of fair use and how it compares with the ideologies of copyright law and the Creative Commons. [1]

As one attorney points out, you might not need permission to use sampled material from a copyrighted work if:

  • You are just using the sampled music at home.
  • You are using the sample in live shows. This is because, usually, you are not making copies and the owner of the venue pays the blanket license fees to performing rights organizations such as Broadcast Music Incorporated (BMI) or American Society of Composers, Authors, and Publishers (ASCAP).
  • You plan to distribute copies to the public but meet one of the following: 1) an average listener would not notice the similarities between your end product and the sample, or 2) your use of the sample falls under the “fair use” doctrine.

According to Stanford University, fair use is defined as:

…any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner.

This presents a bit of a fuzzy area.  At what point is an artist commenting or criticizing on a copyrighted piece of music by way of sampling?  And how do we know an artist is using parody?  Stanford cites an example:

‘Parody’ Fair use: The rap group 2 Live Crew borrowed the opening musical tag and the words (but not the melody) from the first line of the song “Pretty Woman” (“Oh, pretty woman, walking down the street”). The rest of the lyrics and the music were different. Important factors: The group’s use was transformative and borrowed only a small portion of the original song. The 2 Live Crew version was essentially a different piece of music; the only similarity was a brief musical opening part and the opening line. (Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994)

So, the portion and scale of the sample used can affect fair use perception as well.  But, as the same Stanford article also warns, it is not advisable to use the “heart” of a work as a sample, like the main riff and lyric in the Rolling Stone’s “Satisfaction,” for instance.  Of course, there’s also the argument of what art is, or what appropriate use of the sample is, etc.  As one colleague here on netlabelism put it, “the shorter the snippet and the more creative you are in putting it to a new use, the better the sampling and the more this can be considered art.”[2]

Additionally, adding a profit factor to the equation can have some effect on the perception of fair use, and the issue can become more inflated when an artist intends to sell the music (online or elsewhere).  For instance, as one writer notes, problems “often occur when the use is motivated primarily by a desire for commercial gain.”  Perhaps this is one reason why Girl Talk has enjoyed a lack of attention from courts of law?  After all, his most recent album is freely available from the label’s website.

Now where does the Creative Commons (CC) fit into this?  First off, we should understand that CC is a platform which “develops, supports, and stewards legal and technical infrastructure that maximizes digital creativity, sharing, and innovation.”  The CC doesn’t override any laws found in your jurisdiction with regard to fair use or works which may be under other copyrights beyond or outside the realm of the CC.  In addition, there’s definitely a ‘community’ continually forming around the CC ideology.  For instance, the CC has several affiliate music communities which support CC licenses, and a few years ago, some mainstream artists also showed their support by offering some of their music under a sampling plus or non-commercial sampling plus CC license. The underlying theme of the CC is essentially to ‘share, and share alike.’  It generally doesn’t involve music which is already licensed or copyrighted under the guidelines of, say, ASCAP or BMI, or music under the control of a commercial record label.  The intention to treat music as a commodity or profitable enterprise essentially erodes the very concept of the CC. [3]

In sum, and more simply put, it would seem there are at least three main factors influencing our perception of what is ‘right’ or ‘wrong’ with sampling: the choice and length of the sample(s), how the samples are (or are not) creatively integrated into an arrangement, and the intent of the artist toward commercialization (profit). [NC]

Notes:

[1] Discussions of fair use and sampling are taken generally from United States law perspectives for the purpose of this article.

[2] That article references a release subsequently taken offline by the Export netlabel (read that label’s statement here).  The issue seemed to be a problem of how the label was promoting its music as original while simultaneously (and unintentionally) allowing a release containing several borrowed samples, rather than an issue of Creative Commons (I cannot see anywhere on the Export label site where their music is promoted as Creative Commons (CC), although some releases link to SoundCloud which does allow options for its users to upload their content under a CC license).

[3] Insomuch as a piece of CC music remains under a CC license.  Note that work submitted to CC owned web domains cannot have their CC licenses revoked.  See Section 8(c) of the CC Terms of Use for language to that end.  However, that rule does not apply to other Third Party websites (websites not directly affiliated with CC).

 

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3 Comments

  1. Sean
    November 4, 2012
    Reply

    Great article. Certainly “fair use” is a grey term to be sure, but I think it’s worth all our time to think about what that means both in the eyes of the composer and the lawyer! Would love to see some articles on net audio and net label etiquette. In terms of both how both audio and video artists should go about crediting those we have sampled and perhaps tips to artists just getting into the arena about which CC license might best fit them. (Although I think it is discussed at length on the CC website, a basic synopsis might be cool here)
    Thanks for the great article and taking the time to write it!

    • November 4, 2012
      Reply

      Thanks Sean! Good idea about the basics of CC licenses… maybe a quick checklist here would be nice for our readers. In the meantime, here’s the link to the CC site which allows folks to choose their own: http://creativecommons.org/choose/

  2. Ash
    November 8, 2012
    Reply

    I enjoyed this a lot. I agree with Sean that although there is info available at other sites, reading about these things in context to an article written with a purpose towards netaudio is much more informative. I learn a lot from this! Nice one Noah.

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