Since 1979, hip-hop sampling has been a part of the recorded musical landscape. It has become a multicultural phenomenon that changed the way people produce and listen to modern music. But the publishing companies that hold the rights to the original compositions of popularly sampled songs have been on the offense, trying to figure out how to profit from the use of these songs. Once they figured out that records were not only sampling tiny fragments but also looping the entire arrangement of songs, publishing companies and songwriters started filing lawsuits all over the country.
In the recent landmark case of Bridgeport Music Inc. v. Dimension Films, the 6th U.S. Circuit Court of Appeals in Cincinnati handed down a ruling stating that sampling is a crime against the original copyright owners — even if it is a small hit, a guitar riff or anything. Furthermore, it states that even if the sample is unrecognizable, it must be licensed. In this case, Bridgeport (along with Westbound, Southfield and Nine Records) sued Dimension and No Limit Films over rights for Funkadelic's “Get Off Your Ass and Jam.” The original sampled recording was released in 1975, then sampled and cleared for release by N.W.A. in 1990. The group obtained the proper license for its 1988 release of the song “100 Miles and Runnin',” so this was not a case about N.W.A.'s sampling of the song, but a case of its 1998 usage in the film I Got the Hook-Up. The defendants in the case were writers and producers for N.W.A. and the filmmakers for I Got the Hook-Up.
As a producer who has worked with Public Enemy, LL Cool J, Slick Rick, Ice Cube, Madonna, Janet Jackson, Mary J. Blige and other artists, I am greatly affected by this ruling, and it will undoubtedly affect hip-hop music and have a pronounced impact on its culture. Some questions and answers are certainly in order.
How will this impact the industry?
The probability is that this ruling will promote more shady activities. It comes down to one thing: whether the artists and writers will admit to using samples that they've manipulated. This problem is not a big “them” versus a little “us”; it is about the very survival and existence of the art of sampling and the ability to push music creativity forward. Also, who will determine the going rates for samples, whether it's a one-second or an eight-second sample? Are these rates going to be regulated and posted so that artists can have an idea of what these costs will be before they sample, or do they have to wait until they try to obtain the license before they find out? The answers to those questions and others are yet to be determined.
How much is this going to affect me if I sample rare records by deceased artists?
It actually depends on how long the person has been deceased. Because copyrights do not last forever, there are laws protecting their length. Copyrights that fall outside of the designated term are deemed to be public domain. Originally, the length of a copyright term was 50 years, and anything older than 50 years was deemed to be public domain, meaning that you could legally sample the recording without obtaining a license. But in the past few years, that law has been amended to include anything older than 75 years. This has caused quite a stir in the clearance departments in music divisions that use music for commercials, film and so forth, because it has extended the life of copyrights, thereby giving the owners more leverage. So if you are publishing your works, you must obtain a license for anything released in the past 75 years.
Should I hire a lawyer to clear samples in music that I've produced and am trying to shop?
Yes, you should always have a lawyer or some legal counsel with the expertise to clear samples, because it's a business with no clear definitions and laws are always changing. But understand this: The need to clear a sample is not really necessary unless you intend to sell that recording. Even major record companies don't bother to get samples cleared until they absolutely know that the particular song will be used in a record that they will be distributing. Again, legal advice is always smart, but I would wait until I get a deal for the song before I worry about clearing the sample.
What are the loopholes in this new ruling?
The only way around the law that I can think of is this: Don't acknowledge the use of any samples if they are not recognizable. This is a dangerous, illegal approach, but if you have manipulated your sample to the point that it is completely unrecognizable, then it might work for you. Nevertheless, the laws are against you in this case. Another approach would be to have someone (even yourself) replay the sample. This will get around the sampling issue but will leave you open to a publishing issue called interpolation. There really are no clear loopholes; you just have to use your best judgment. Remember that the new ruling is based on a two-second sample of “Get Off Your Ass and Jam,” so regardless of how small the sample, owners of copyrights can — and will — come after you.