Changes Brought About Due To Changes in Copyright Law

Hip-Hop Licensing Fees

Two types of licenses are needed to include a sample of a recording on a new project.

  1. Publishing. If the music and/or lyrics are recognizable you need to negotiate a license, usually split between the composer, lyricist, and their publishing company.
  2. Master Recording. This possibly benefits the performer, and is usually done through the record label. If you re-record the melody or lyrics yourself you only need to get the publishing license, since you are not sampling the performance from the audio recording.

Since 1990 artists are more likely to incorporate fewer samples in a song in order to keep the licensing fees down. In the 1991 case of Grand Upright Music v. Warner Brothers Records the judge found Markie Mark at fault for building his song "Alone Again" on 8 bars from Gilbert O'Sullivan's hit of the same name. His decision began "Thou Shalt Not Steal" and he referred the case to the U.S. Attorney for prosecution of theft (which was not done). In Bridgeport Music v. Dimension Films the judge ruled that it doesn't matter if short samples are used or that they are significantly transformed. "Get a license or do not sample"

The movie RiP: A Remix Manifesto makes a compelling case for the need to change copyright law in order to allow the incorporation of samples into new works such as in the type of sound collages done by Public Enemy on are no longer affordable. The documentary features the work of Greg Gillis (aka Girl Talk) who believes his incorporation of hundreds of copyrighted works in his mashup is legal under the provisions fair use as they are substantially transformed. He has not been sued yet, presumably because labels are afraid he would win the case, encouraging others to do similar work.

Some artists try to get around the licensing fees by claiming that they are using copyrighted material as part of a satire or parody, and are therefore entitled to use samples without paying licensing fees under a different exemption under Fair Use. This defense has been successful, even when a profit has been made, as in the case of Campbell v. Acuff-Rose Music, Inc. The problem is that Fair Use is fuzzy and up to the determination of a court on a case-by-case basis after a suit is filed.

The Effect of Limiting Sampling on the Evolution of Hip-Hop

I'm working on a paper about the effects of court cases on limiting samples, which contributed to ending the "Golden Age" of hip-hop, and a proposal to change copyright allowing users to use up to 7 seconds of recordings in new productions.

References

McLeod, Kembrew and Peter DiCola. Creative License: The Law and Culture of Digital Sampling. Duke University Press, 2011.

Schloss, Joseph G. Making Beats: The Art of Sample-Based Hip-Hip.  Middltown: Wesleyan University Press, 2004.

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