Is Sampling an Art or a Crime?

Copyright laws were established in the Constitution to “promote science and the useful arts” (Copyright). In the age of digital formats for music, copyright law makes it illegal for bootleggers to commit audio piracy by copying works of music without paying the artist. However, the invention of digital sampling, which allows a musical artist to take sound from a previously recorded work and incorporate it into a new work, has challenged the existing copyright laws. The search for balance between the need to protect artists from audio piracy and the goal of fostering the ability of new artists to draw on previous media has made a good deal of legal controversy within the music business. Laws and court decisions have not established what balance between the protection of an original artist and the protection of new artists would best foster overall musical creativity in the United States.

Before we begin to decide on which side is right or wrong we first have to understand what sampling is and what the current copyright laws are. Sampling is the use of portions of prior recordings which are incorporated into a new composition. Sampling has become an integral part of many genres of music today. A dictionary definition states that 'A sample is a small separated part of something illustrating the qualities of the mass', (The Concise Oxford Dictionary of Current English, 1940). The term 'sample' can refer either to an individual recording of the amplitude of a sound or a whole series of individual recordings which together form a complete sound. The term 'sampler' can also be used to refer either to the electronic musical instrument or the musician/technician using the instrument.

There is a lot of confusion on what is legal to sample, and how much of a segment you can sample. There is also a rumor going around that you can use four notes of any song under the "fair use" doctrine. There is no "four note" rule in the copyright law. One note from a sound recording is a copyright violation. Saturday Night Live was sued for using the jingle, "I Love New York" which is only four notes. (McCready) The test for infringement is whether the sample is "substantially similar" to the original. Then on September 8, 2004 a federal appeals court in Cincinnati, Ohio ruled that artists should pay for every musical sample included in their work - even minor, unrecognizable snippets of music. The court said the same federal laws currently in place to halt music piracy will also apply to digital sampling, and explained, "If you cannot pirate the whole sound recording, can you 'lift' or 'sample' something less than the whole? Our answer to that question is in the negative. Get a license or do not sample. We do not see this as stifling creativity in any significant way (Shocklee 75)." This means if you use any unlicensed, or unoriginal sound recording you are in danger of copyright infringement. This all seems pretty strict and unclear.

The law has not looked kindly upon unauthorized sampling. In the first sampling-based copyright infringement case, the court's opinion began with scripture - "Thou shall not steal" - and ended with a referral for criminal prosecution (Federation). Is recorded sound simply private property, and is it's re-use simply theft? Or is recorded sound the raw material of creative expression? Sampling raises copyright law's characteristic tensions: the sound recording is both private property, enabling an author or musician to get paid for her work, and an element of communication and culture. But the Fair Use doctrine, statutory compulsory licensing, and the First Amendment, which may permit unauthorized creative re-use of copyrighted materials in other cases, have never been brought to bear on sampling. The only clearly legal sample is an authorized sample.

There is a lot of artist who have suffered from using samples without consent. A good example of this is rapper Vanilla Ice who sampled the bass line and melody from the Queen and David Bowie track "Under Pressure" in his song "Ice Ice Baby". He lost one hundred percent of his royalties (Challis). The band called the Verve also lost one hundred percent of their royalties when they sampled the Rolling Stone's "The Last Time" (Challis). This goes onto prove that the sampler is open to very heavy penalties. 'Even at a basic level a copyright infringer is liable for statutory damages that generally run from $500 to $20,000 for a single act of infringement. If the court determines there has been willful infringement, damages can run as high as $100,000' (McCready).

With all of these negative feelings towards sampling I was curious to find out the samplers and the sampled felt about sampling. I talked with electronic musician Dev Paradox, who