reprinted from:  Not in Court cause I Stole a Beat : the Digital Music Sampling Debate's Discourse on Race and Culture, and the Need for Test Case Litigation, 2012 University of Illinois Journal of Law, Technology and Policy 141 (Spring 2012)(Student Note)(221 Footnotes Omitted).

He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening mine.
-Thomas Jefferson

 

In spite of the rich tradition of borrowing exemplified in a wide variety of art forms, and the benefits of sampling within hip-hop specifically, the copyright system continues to misinterpret the nature and goals of using digital technology to reinterpret existing sources. As a result, American courts create legally binding hierarchies of cultural forms that marginalize artists who borrow openly. Such cultural regulation is made even more troubling by the racial undertones underlying the copyright system's failure to recognize digital sampling as a valid art form.


 1. Thou Shalt Not Steal--Grand Upright Ltd. v. Warner Bros. Records, Inc.

One of the few cases to directly address digital sampling, Grand Upright Music Ltd. v. Warner Bros. Records Inc. set what is likely the most important, and perhaps the most troubling, precedent for such cases. In 1991, artist Biz Markie recorded the track Alone Again for his album I Need a Haircut, which included a ten-second digital sample of the first eight bars of Gilbert O'Sullivan's Alone Again (Naturally). While Markie attempted to obtain permission to use the sample, Warner Brothers Records released the album before O'Sullivan responded. Following O'Sullivan's subsequent efforts to have the album removed from the market, Grand Upright Music (the alleged copyright owner of Alone Again (Naturally)) brought a copyright infringement action against Markie. O'Sullivan's attorney framed the issue in black and white terms: You can't use somebody else's property without their consent. . . . [Digital sampling] is a euphemism . . . for what anybody else would call pickpocketing.

Judge Kevin Duffy of the Southern District of New York agreed. Quoting the only authority cited in his decision, Duffy admonished Markie with perhaps the four most notorious words within the digital sampling community: Thou shalt not steal. Turning neither to de minimis nor fair use doctrine, the court cited Markie's callous disregard for the law and infringement upon O'Sullivan's rights in an effort to sell thousands upon thousands of records. The court granted injunctive relief for Grand Upright Music and referred the case to the United States Attorney for possible criminal prosecution.

Grand Upright provided little guidance for future sampling cases, and created an environment of uncertainty that has made it too risky for artists to contest claims of copyright infringement. Furthermore, in relying on assumptions that equate digital sampling with outright theft--whether of sound, personality, or money --Grand Upright explicitly rejected Markie's justification that digital sampling is widely used in the production of hip-hop music. In response to Markie's invocation of what amounts to a cultural defense --that borrowing is socially acceptable within the hip-hop community--the court in effect held that attempts to excuse lawlessness by noting a common disregard for the law are always destined for abject failure. The court cryptically stated that the argument was totally specious. The mere statement . . . is its own refutation.

In rejecting Markie's culture-based argument, the court in Grand Upright effectively legitimized a hierarchy of cultural production in which digital sampling (within hip-hop specifically) is on the bottom. The court reasoned that Markie, in sampling O'Sullivan's work, had one objective in mind: economic gain. Instead of sampling Alone Again (Naturally) for aesthetic reasons, Markie's only aim was to sell thousands upon thousands of records. Such a view does not square with competing, well-reasoned analyses of borrowing and transformative imitation.

Grand Upright has been roundly criticized, and justifiably so. Unfortunately, the case's theft-based analysis equating digital sampling to stealing of property has taken hold in other courts.


2. Get a License or Do Not Sample--Bridgeport Music Inc. v. Dimension Films

Bridgeport Music Inc. v. Dimension Films addressed a sample used by the hip-hop group N.W.A. on their song 100 Miles and Runnin'. N.W.A. sampled a three-note, arpeggiated guitar chord that lasted two seconds, taken from the song Get Off Your Ass and Jam by George Clinton Jr. and the Funkadelics. The guitar riff was lowered in pitch, looped to repeat, extended for sixteen beats, and was used at five different points in the song. Because the N.W.A. track was used in the film I Got the Hook Up, the owners of Get Off Your Ass and Jam brought suit against the film's producers.

The Court of Appeals for the Sixth Circuit sided with Bridgeport Music, holding that the de minimis doctrine can never act as a defense to the sampling of a copyrighted sound recording. As many samples contain only a small portion of the original work, artists have long relied on the de minimis doctrine to sustain this creative process. However, the court found that Section 114(b) of the Copyright Act (which concerns copyrights of sound recordings) grants sound recording owners the exclusive right to sample their own recordings. Because one may not pirate the whole sound recording, the court reasoned, one may likewise not lift or sample something less than the whole. In the court's own words, either [g]et a license or do not sample--anything less would constitute per se infringement.

The various justifications offered by the Sixth Circuit for its ruling have received substantial criticism. First, the court cited the need for a bright-line rule to promote judicial efficiency. In the face of hundreds of sampling cases, the court reasoned that conducting de minimis tests on a case-by-case basis would be impractical. However, it appears that the opposite is true: by stating that sampling even three notes (as in this case) is infringement, the court open[ed] the floodgates to more lawsuits. Further, as de minimis is no longer a viable defense for sampling artists, defendants are more likely to turn to the complex, fact-specific affirmative defense of fair use. Thus, it appears that Bridgeport's elimination of de minimis will increase not only the number of copyright infringement suits, but also the complexity of those suits. Furthermore, a bright-line rule is inappropriate to deal with the widely ranging fact patterns and . . . continually evolving technological landscape that characterize digital sampling cases.

The Bridgeport court gave particular consideration to the economic interests of the music industry, reasoning that its rule would limit the ability of samplers to benefit from another artist's work product. Such a conclusion ignores the significant costs imposed on artists to clear samples, even if using only one note. Clearing samples is not as simple as sending a check to the original source's owner, but rather is time-consuming, expensive, unpredictable, and a legal and administrative hassle. One DJ described the problems with sample clearance: Lawyers make it totally impossible to clear more than one sample per song, because they all want 75%, no matter how big or how small the use is. Furthermore, the court's rule ensured that the cost of obtaining a license would increase even further, as sound recording owners can name the price which artists must pay, no matter how brief the sample. Such a burden upon independent artists of limited resources actually works to encourage illegal sampling rather than compliance.

The court rationalized the cost of obtaining clearance by stating that if an artist wants to incorporate a riff from another work in his or her recording, he is free to duplicate the sound of that riff in the studio. Such an assumption does not square with reality. Studio recording is prohibitively expensive, especially for artists lacking the backing of a major studio. While one may purchase sampling software for $500, a studio demo can easily run over $4,000. Furthermore, attempts at re-recording the original source will invariably fail; as artist Jan Hammer noted, There's no way to recreate what [original artists] sound like--the nuances they bring to music.

In some ways, the court's mistaken assumptions about studio recording versus sampling belie nostalgia for the good old days when music was made in studios, not on laptops. Such cultural preferences are reinforced by the court's description of sampling as physical, not intellectual, taking. In the eyes of the court, any sampling, for any reason, without clearance, is a per se violation of federal statute. In the same vein as Grand Upright, Bridgeport thus functions as a legally binding decree of what sort of art, and what sort of technology, society is willing to accept as valid. Moreover, by threatening any sampling artist with litigation, the case has had a distinct chilling effect on creativity within the sampling community.


3. They Gonna Make an Example : The Arrest of DJ Drama

The legal consequences for artists breaking the cultural mold are real. By participating in methods of cultural production that do not conform with what American jurisprudence views as legitimate, artists risk their finances and freedom. To see the results in action, one needs look no further than the arrest of DJ Drama in 2007.

DJ Drama (Tyree Simmons), an Atlanta-based music executive, is one of the foremost mixtape producers in the country. Just as his Gangsta Grillz compilations have launched him into the elite of mixtape MCs, so has his influence boosted the careers of rappers T.I., Lil Wayne, and Young Jeezy. In 2007, Atlanta police, working with the Recording Industry Association of America's Anti-Piracy Division, arrested Drama, protégé DJ Don Cannon, and seventeen associates following a multi-week investigation into Drama's music production business. Drama and Cannon were charged with felony violations of Georgia's RICO statute on allegations of heading an extensive ring of copyright infringement through the production of mixtapes. Authorities also seized over 50,000 mixtapes, along with other assets, as proceeds of a pattern of illegal activity.

The fallout among the hip-hop community was immense. Said George DukeDaGod Moore, head of Artists and Repertoire with Diplomat Records: This is like D-Day in hip-hop. Artists questioned the rationale behind the raid: Nobody is dying, nobody is killing nobody. It's just music being made. One DJ noted that the majority of the 50,000 CDs confiscated were up-and-coming artists, and that the mixtapes were a purely promotional marketing tool that were looked at the wrong way by the authorities. Said another: I think they're trying to make hip-hop illegal or something.

The RIAA denied such motives. Brad Buckles, executive vice president of the RIAA's Anti-Piracy Division in Washington, D.C., made the following statement regarding the raid and arrests:

We don't consider this being against mixtapes as some sort of class of product. We enforce our rights civilly or work with police against those who violate state law. Whether it's a mixtape or a compilation or whatever it's called, it doesn't really matter: If it's a product that's violating the law, it becomes a target.

Even some DJs and rappers admit that the mixtape industry was violating norms of the business. Lil Wayne warned mixtape DJs to smarten up, and look to DJs who release mixtapes through record labels. Said Lil Wayne: It's a bad thing . . . but you gotta play the game fair. If you don't play fair, all kinds of things can happen. He directed DJs to watch people like DJ Clue, watch people like DJ Khaled. They do it right. While those DJs built careers on mixtapes sold on the street, they have also been successful at releasing official mixtapes through record labels. Another rapper-producer even suggested holding mixtape seminars, in which the RIAA could educate artists as to what forms of mixtape production are permissible.

Such pragmatism is laudable, and hopefully the music industry and mixtape DJs will find common ground in which mixtape production can thrive. But for the moment, authorities view sampling as a zero-sum game in which a sound recording is either copyrighted or it's not, and continue to misinterpret the technology as a tool used by artists for the sole purpose of securing monetary gain. The truth is quite to the contrary. Said a DJ who wished to remain anonymous in the wake of Drama's arrest: I've never made a mixtape and sold it. Every mixtape I made is given away. Such a mentality exemplifies the nature of a gift economy, in which artistic expression is freely exchanged without the restraints of commoditization.

DJ Drama himself was surprised and disturbed by the raid. In light of the role mixtapes have played within the hip-hop community, as well as his own status as an artist, businessman, and proud mixtape DJ, Drama called the events of the day a travesty. Said Drama: I saw cops jump out, M16s drawn, and they put me directly on the ground, . . . basically asking, Where are the guns and drugs?

This dangerous rhetoric comparing mixtape production to drug trafficking was echoed in statements made by the RIAA itself. Following the raid, the RIAA's Matthew Kilgo was quoted as saying: Statistics prove that you can make a 400 percent markup on a kilo of heroine [sic] or cocaine, and statistics also show you can make up to a 900 percent profit just on the resale of counterfeit CDs. Artists noticed the comparison as well. One noted that, despite the fact that the CDs confiscated in the raid were not for profit, authorities treated . . . [Drama and Cannon] like they was [sic] . . . drug kingpins. Such equation of digital sampling to the illicit drug trade echoes the race-laden calls for law and order of the Nixon era and conflates a stereotype of black crime and lawlessness with what is one of the largest African-American art forms.

That said, query whether some hip-hop artists have invited this comparison. Rap moguls have long analogized their musical entrepreneurialism to drug dealing; whether they themselves are former dealers or simply exaggerators is often unclear. Jay-Z's unprecedented success, like Biggie Smalls' before him, was intertwined with his past as a drug-dealer. As Jay-Z once bragged, I sold kilos of coke, I'm guessing I can sell CDs. Rapper Rick Ross, interestingly enough, brags about extensive work in the drug trade (and luxuries resulting there from) but his claims likely amount to little more than puffery. In any event, the language used by the RIAA, while incredibly troublesome, should be placed in the proper context.

But the RIAA's hypocrisy is exposed in other ways. According to the RIAA, sampling is aimed at profit, even more profit than can be made through the lucrative drug trade. But whose profit is the RIAA really worried about? Clearly, not DJ Drama's--most mixtapes do not actually make much money. The record industry tends to frame its anti-piracy efforts in terms of artists' rights, yet most of DJ Drama's mixtapes begin with enthusiastic endorsements from the [sampled] artists themselves. While the RIAA claims that illegal mixtape regulation takes money from rich musical pirates and compensates artists, the rights to original work are often held by corporations rather than the artists themselves. The truth is that digital sampling enables black artists, both DJs and otherwise, to produce their own cultural and economic capital in the face of a monopolistic music industry.

The raid on DJ Drama's studio was not the first of its kind, but rather followed a series of raids on small music retailers. In raids in Virginia, Indiana, Rhode Island, and New York between 2003 and 2007, police cracked down on independent record stores selling mixtapes, resulting in large fines, criminal liability, and even business closings. Such crackdowns on small operators are particularly alarming considering that large chains such as Best Buy have been known to sell mixtapes, yet face little intimidation by law enforcement.

The treatment of DJ Drama and others by the recording industry and law enforcement, taken on its own, is troubling enough. But prior court decisions and police actions become particularly distressing when compared with white artists who utilized digital sampling technology and who receive comparably favorable treatment by the legal system.


4. Girl Talk

Girl Talk, whose real name is Gregg Gillis, is a Pittsburgh-based former biomedical engineer whose recent rise to prominence, and distinct lack of legal troubles, has raised questions about how the copyright regime treats artists according to race and socioeconomic status. Gillis specializes in creating mash-ups, a blend of two or more samples usually taken from contrasting musical styles. Examples of Gillis's product include layering Juicy by the Notorious B.I.G. over Elton John's Tiny Dancer, or combining Kraftwerk with Lil Wayne. While Gillis's work is largely pop-centered and party-friendly, he views his music as a reinvention and reinterpretation of widely known sources that transcends the mixings of a party DJ. Gillis locates his work within hip-hop's history of recontextualizing existing sources, and has stated: [O]ne of my favorite things about Girl Talk is just how far it's pushed people to think, What is original music and what's not?

And yet, while Gillis focuses on sampling mainstream artists ranging from Aerosmith to OutKast, he has to date received not one cease and desist letter from a major record label nor been the subject of any civil or criminal investigation for infringement. Rather, his mainstream popularity continues to rise and his legitimacy as an artist has been lauded on the floor of Congress by his own representative. In contrast to the minority DJs and producers facing harsh sanctions for working in the grey area of the law, Gillis's sampling efforts have yet to be condemned or even threatened.

Such a disparity demonstrates how, in the context of digital sampling, technological usage and cultural production receive unequal treatment by the dominant legal system. One commentator has suggested that Gillis had avoided legal trouble because, as an educated middle-class white male, his socioeconomic status fits what the mainstream wants to see when it talks about this issue. As opposed to the criminal piracy of artists like DJ Drama, Gillis's story presents a squeaky clean image of American innovation and a model for how fair use should grant artists (or at least some artists) the autonomy to borrow and reinvent. Posit the editors of Copycense: Why hasn't Gregg Gillis been forced to post bail yet? . . . If Biz Markie cannot steal, why can Girl Talk?

Such a query is especially puzzling in light of the sources Gillis draws from. In some ways, Gillis's work reflects what Professor K.J. Greene has called a pattern of creation by Black artists, followed by imitation and distortion by white performers. In what Greene labels the Minstrel Show pattern, white performers water[] down the vitality of Black music to make it more palatable for white audiences . . . . This could arguably be applied to Gillis, whose music is significantly tamer and more mainstream than much of the hardcore rap exhibited on compilations by DJ Drama and others. It could be argued that Gillis's mainstream success is in large part attributable to his use of pop music sources readily known by white, middle-to-upper class audiences. The fact that Gillis samples more from well-known pop sources, but has received less scrutiny than DJs such as Drama who sample from lesser-known artists, is both intriguing and worrisome.

Lastly, the extensive media coverage of Gillis's work and his status as a fair use martyr echo the sentiments of jazz musician T.S. Monk, who noted that just as the drug problem was not recognized until it moved from African-American neighborhoods to white communities, so did the sampling debate only become a mainstream concern once it affected white artists. If positive treatment of Gillis has a silver lining, perhaps it is to draw attention to the original samplers whose work has not yet been legitimized by mainstream legal institutions.


5. Utility Maximization and Distributional Consequences

This inherent tension in the copyright regime's treatment of sampling artists is surely not Gillis's fault. As the maxim goes, Don't hate the player, hate the game, and Gillis is but one actor in a long history of the interaction of race, culture, and copyright. Copyright has always been tested by the introduction of new technologies in musical performance and practice. Furthermore, those actors bringing suit to enforce assertions of copyright violations (i.e., rent seeking) are merely playing by the established rules of the system and acting within their own self-interest--few would likely claim that Grand Upright or Bridgeport Music themselves are biased entities.

That said, the current trends in copyright enforcement are troubling. Viewed in isolation, perhaps DJ Drama's prosecution, the suit against Markie, or Gillis's newfound fame is not worrisome, but they are merely examples of the winners and losers in a competitive environment. Yet such a perspective takes an exceedingly narrow view of history, and fails to give adequate consideration to the possibility that the legal environment is biased towards sampling artists of color. Such evidence includes the American copyright system's mistreatment of African-American artists, the record industry's consolidation of creative capital, and general societal mistrust of many black art forms. The truth is that while copyright purports to be neutral, it is in fact a culturally, politically, economically, and socially constructed category rather than a real or natural one.

The copyright system may not be guided by an invisible hand directing who litigates and who pays the cost for sampling. Still, it is hard to ignore the distributional impacts of the intellectual property regime. At the very least, courts should be aware of the disparate legal treatment of artists utilizing digital sampling. Going further, a solution is needed to smoke out how and why cultural production receives either sanction or praise depending on the race of the artist.

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Vernellia R. Randall
Professor Emerita of Law

The University of Dayton
School of Law
Dayton, OH 45469-2772
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