Why Isn’t Sampling Fair Use?

I got tired of reading yesterday, but I didn’t want to spoil my momentum on a day I had entirely free, so watched a documentary related to my current emphasis on ‘stuff that complicates copyright.’  The documentary “Copyright Criminals” presents a sympathetic view of sampling, the hip-hop mode of creating songs out of bits and pieces of other songs.  The resulting product is generally very unlike the original pieces–a hip-hop song could have the bass from a funk band, R&B background singers, jazz musician solos, and lyrics from Rock and Roll bands spliced with political speeches and overlayed with an original rapping vocalist.  An example from the “golden age” of hip hop is De La Soul’s “Me Myself and I,” which, if you watch the youtube clip, could be read to contain a justification of sampling within itself:

Mirror, mirror on the wall
Tell me, mirror, what is wrong?
Can it be my De La clothes
Or is it just my De La song?
What I do ain’t make-believe
People say I sit and try
But when it comes to being De La
It’s just me myself and I

Their focus in writing the song seems to be in establishing an image of themselves, apart from society’s mirror which would like to control their image and have them fall in line.  In the music video  De La Soul ends up in a rappers’ detention hall, in order to instruct them in the proper style of rap music including the requisite tough stance, gold chains, and sunglasses of Professor DefJam.  De La Soul rejects this vision of their group and establishes its own style: “Style is surely our own thing /Not the false disguise of showbiz/De la soul is from the soul.”  De La Soul is saying that they should not be coerced into an image or seen as a betrayer to a specific genre and culture.

But, here’s the ironic part: in claiming originality, their medium is sampling.  In the course of the song, according to Wikipedia, they use:

  • “(Not Just) Knee Deep” by Funkadelic (1979)
  • “Rapper Dapper Snapper” by Edwin Birdsong (1980)
  • “Funky Worm” by the Ohio Players (1973)
  • “The Show” by Doug E. Fresh (1985)
  • “Gonna Make You Mine” by Loose Ends (1986)

The samples from these sources are clear enough to pick out.  For instance, if you listen to “(Not Just) Knee Deep” the synthesizer tracks are very clear throughout the song.  In establishing building an original sound and style they very clearly use bars from other artists.

Is this contradictory?

Is this plagiarism?

Is this copyright infringement?

The question is pretty fairly brought up in the prelude to the song itself when one of the artists, Prince Paul, says “if you take three glasses of water and put food coloring in them, you have many different colors, but it’s still the same old water.”  This is one of the central concerns that court cases involving sampling hinge upon: is the sampled song new, or simply a compilation of “the same old water”?

The answers to these questions are VERY complex.  First off, a case like this exemplifies the difference between plagiarism and copyright infringement.  While plagiarism is the unattributed use of sources, copyright is the unlicensed use of sources.  Allusion, a literary technique involving the obvious reference to another work is generally not called plagiarism, but this identification in and of itself presents a fuzzy line, dependent on the assumed knowledge of the audience.  Shakespeare might be able to assume that his audience would be basically familiar with the story Pyramus and Thisbe so he could make a mockery of it in his Midsummer Night’s Dream, but are listeners of De La Soul generally familiar with Funkadelic?  With The Turtles?  If the same standards that are applied to written work can be applied here, I think it’s fair to call this allusion, pastiche, remixing, parody, reference, or even quotation at various points, but plagiarism?  If this is plagiarism, then so is T. S. Eliot’s The Waste Land.  The line between pastiche and plagiarism is deliberately sticky and requires both a careful investigation into the purpose of the work and its use of the materials as well as an awareness that pastiche itself challenges the idea of plagiarism.

But, getting back to the topic at hand, plagiarism is a separate issue from copyright infringement, and the courts are still largely deciding the fate of sampling, at some points ruling that any length of sampling is copyright infringement, and that certain uses such as parody (2 Live Crew’s version of Pretty Woman) in the Campell v. Acuff-Rose case are acceptable under fair use.  The documentary briefly mentioned a number of lawsuits, one filed by The Turtles against De La Soul involving, an interlude on the same album as “Me, Myself, and I” entitled “Transmission from Mars” and the decision that any length of any copyrighted song may not be used without the permission, and, if the author requires it, the compensation of the copyright holder. De La Soul lost the case and owed The Turtles some major cash for the few bars of background in their “transmission.”

So why isn’t all sampling fair use?

Fair Use provides exemptions to copyright in the US  “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.  In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.”  (Section 107 of the US Copyright Act of 1976)

The documentary made the contention that the copyright act, last edited in 1976 (though it’s since been added to for the inclusion of digital work) is out of date and doesn’t take into consideration the innovations of culture and technology.  But I don’t know about that.  The fair use exceptions above seem to point to a possible interpretation of US copyright that could cover sampling if the courts wished it to.  An apt analogy might be made to quotation–this blog post alone is made of many quotations, which are clearly marked of course, but do add to the character and composition of the post.  The sampled work is more extreme, but is the work taken, as mentioned by factor 3 above, substantial to the original work?  In many cases of sampling where one guitar riff is taken, I’m not sure that this is so.  In reference to factor 2, the nature of the copyrighted work as “criticism” or “comment” is fairly difficult to determine–while much sampling is not as clearly parody as 2 Live Crew, it could very well be interpreted that way with very little pushing.  Oddly, parodying a style through use of specific works, rather than parodying a specific work, seems to be less protected by the courts, but I have to wonder if American Pie and the Scream Movies are so different than sampling…  Finally, factor 4 is, generally, a non-issue with sampling–is De La Soul taking away any of the potential market for The Turtles?   Not a chance.

The only factor in question seems to be #1 in that sampling is used for commercial rather than non-profit use, but why does #1 outweigh all other factors?  These factors are considerations, not qualifications each if which must be met to be fair use–Weird Al is free to sell his parodies and make money off of them.  So, it seems odd to me that sampling isn’t covered by fair use when other genres seems to make use of the same techniques, and factors regarding fair use are largely met.

Money, and the philosophy that the original author should have control over the use of his/her product, a more European notion of copyright seems to be at play here.  But, enough for now, back to reading!

One thought on “Why Isn’t Sampling Fair Use?

  1. I know what a midi out is for, its obvious but what is the in used for? Just curious.. It’s obviously for putting midi in lol. Why would anyone send midi into a midi keyboard? Especially ones without any sounds in it?.

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