Copyfraud: Techdirt Book Club Selection For April, Part Two

from the page-turner dept

Last week, we introduced this month's selection in the new Techdirt Book Club— Copyfraud and Other Abuses of Intellectual Property Law by law professor Jason Mazzone—and posted the first half of Chapter 3, which deals with Samples and Mashups and touches on some important moments in the history of copyright law (and hip-hop). Today we've got the second half of that chapter, which looks at the ongoing effects of the laws in this area on things like The Grey Album and the mashups of Girl Talk, and notes how it would be almost impossible to make an album like The Beastie Boys' Paul's Boutique today.

We'll be having our discussion with the author towards the end of the month, so there's still plenty of time to pick up a copy of the book. You can find it at Amazon in hardcover or ebook form (those are both affiliate links, so we get a tiny cut if you buy via them) or get it from lots of other sources. It's also available to check out from many libraries. Stanford University Press also has some ebook rental options. If you don't read the book but still want to participate in the discussion, you can still ask questions based on this sample chapter, as well as Jason's original paper on Copyfraud. He was also recently on the Surprisingly Free podcast discussing the book.

For now, enjoy the rest of Chapter 3! Don't forget to read the first half.

CREATIVITY STIFLED: THE BURDENS OF LICENSING

In the Bridgeport case, the appellate court confidently asserted that requiring that all samples be cleared will not stifle creativity because it is easy enough to obtain a license. However, licensing samples can be costly and difficult. Record labels pass the costs of licensing on to the artist, and recording contracts require the artist to indemnify the record company and distributor in the case of any copyright infringement claim. For instance, rapper Buck 65 cites the “Pandora’s box of legal and financial problems” that he encountered in using samples on his 2005 album Situation. Recall that licensing a sample generally requires permission both from the owner of the copyright in the composition, typically a music publisher, and from the owner of the copyright in the recording, usually a record company. In licensing the composition, the music publisher typically receives an ownership interest of 15 percent to 50 percent in the new song. In exchange for the license to sample from the recording, the record company typically receives an advance that generally ranges from $2,000 to $15,000, with a royalty rate of two to seven cents per unit sold, and sometimes higher. When a recording makes use of many samples, licensing fees can quickly run hundreds of thousands of dollars. For his song “I’ll Be Missing You,” Sean “Diddy” Combs (recording under the name Puff Daddy) reportedly paid 100 percent of his royalties to sample “Every Breath You Take” by the Police. Sometimes the math is impossible: the percentages demanded by rights holders exceed 100 percent. Licensing negotiations occur after the recording is made so that the copyright owners can listen to the entire track or album. This means that the investment in creating the sound recording has already been made and the copyright owner can extract higher fees than it would be able to if negotiations preceded production. Copyright owners know they can hold up release of an album and demand additional payment on this basis.

Major artists signed to big labels are able to license samples. Their recordings generate sufficient revenue to make payment of licensing fees feasible. Their representatives can negotiate successfully with copyright holders, typically other major labels whose own artists will also be seeking to license samples. Small-time artists, however, are in a quite different position. They often cannot afford licenses, nor do they have the benefit in seeking licenses that comes from being signed to a major label. Further, while the Internet has created new distribution streams, smaller artists cannot usually sell through many mainstream channels such as iTunes or Best Buy unless their works have been cleared. Risk- averse gatekeepers who adhere to conservative interpretations of what copyright law allows thereby prevent sampling by artists prepared to invoke fair use.

Even though sampling technology is now more readily available, there is widespread agreement that many of the hip-hop songs and other works of the 1980s that were based heavily on samples would be prohibitively expensive to release today. It has been estimated that in 2004, fifteen years after the original release of the Beastie Boys’ Paul’s Boutique, it would have cost $3 million to clear the samples on the album, even assuming that the rights holders consented. Likewise, Public Enemy’s producer Hank Shocklee says that while it would be possible today to clear the samples for It Takes a Nation of Millions, it would be “very, very costly,” because for an album that sells more than two million copies, “you’re looking at one song costing you more than half of what you would make on your album.”

Artists who cannot afford licensing fees have few good choices. One is not to use samples. Singer-songwriter Beck explains why his 2005 album, Guero, relied less extensively on sampling than did his earlier recordings: “There’s a lot of fun in sampling, and the sampling that we did do was a lot of fun and sparked a lot of creativity, but I think now it’s a little bit prohibitive to sample. It’s just so damn expensive, and it’s such a hassle trying to clear things. As far as sampling goes, it’s an interesting area these days, because it’s definitely been dying out. It hasn’t been arranged in a way where it’s workable for musicians to do it.” For electronic music producer Morgan Page, sampling is off limits because of the threat of litigation: “I never sample anymore. It just creates needless complications and red tape down the line, especially when your music is licensed to film or television.”

A producer might mask samples so that they are hard to identify; some producers go to great lengths to conceal the sources for their samples. Yet there are listeners who take pride in uncovering sample sources and posting the information on websites—a practice the hip-hop community refers to as “dry snitching.” (Asked about the reactions of producers to those who reveal sample sources, hip-hop producer Steve “Steinski” Stein says, “I’ve heard all kinds of stories—death threats and things.”)

An artist might also replace samples with live instruments and new vocals, but this can be an imperfect choice. Hank Shocklee describes how Public Enemy’s use of instrumentals in the 1990s produced a different sound from the sample-heavy music of It Takes a Nation of Millions:

We were forced to start using different organic instruments, but you can’t really get the right kind of compression that way. A guitar sampled off a record is going to hit differently than a guitar sampled in the studio. The guitar that’s sampled off a record is going to have all the compression that they put on the recording, the equalization. It’s going to hit the tape harder. It’s going to slap at you. Something that’s organic is almost going to have a powder effect. It hits more like a pillow than a piece of wood. So those things change your mood, the feeling you can get off of a record. If you notice that by the early 1990s, the sound has gotten a lot softer.

Gregg Gillis, who goes by the name Girl Talk, performs mash-ups, songs created from multiple samples layered on top of each other, live at clubs and has released recordings of his work through the label Illegal Art. Girl Talk’s 2006 album Night Ripper comprises sixteen continuous dance tracks that sample from 167 artists. Many of Gillis’s samples draw from recordings that contain samples themselves. On the track “Friday Night,” the lyrics “Engine, engine, number nine / On the New York transit line” are sampled from rapper Fatman Scoop, who in turn sampled the lyrics from hip-hop artists Black Sheep, who sampled them from a song by country singer Roger Miller. Although the New York Times has called Gillis’s music “a lawsuit waiting to happen,” he contends that his work is protected by fair use: “I’ve always tried to make my own songs. They’re blatantly sample based but I tried to make them so that you’d listen and think, ‘Oh, that’s that Girl Talk song,’ as opposed to just a DJ mix. . . . My label, Illegal Art, and I . . . stand by the fair use law; that we do recontextualize the source material into a new whole. . . . I really don’t feel like we’re potentially hurting the sales of the artists sampled on the record.” Nonetheless, Gillis states that he doesn’t know “if our [legal] argument would hold any water” and that he is therefore “just a little worried about potential repercussions,” and “just waiting for a cease and desist letter to come in the mail.”

Copyright owners do not necessarily want the current ambiguity about sampling and fair use to be resolved. Girl Talk has never been sued for copyright infringement; the most likely reason is that the owners of the works from which Gillis samples recognize that there is a reasonable chance that a court would rule that what he produces is indeed fair use. Such a ruling would lead artists who currently seek licenses and pay fees to refuse to do so. It would also open mainstream distribution channels (which demand clearance) to smaller producers who cannot currently afford the licensing fees demanded and paid by major labels.

This reliance on the ambiguity of fair use by copyright owners may explain a curious aspect of a recent copyright infringement lawsuit against Sean “Diddy” Combs’s label, Bad Boy Records, and Justin Combs Publishing, in connection with Notorious BIG’s use of a five-second sample from “Singing in the Morning” by the Ohio Players. Combs’s label did not assert a fair use defense in the case, and the jury awarded the plaintiffs $4 million (an amount that was later reduced on appeal). Anthony Falzone suggests that the defendants’ decision not to assert fair use may have been strategic: “Combs and his label can afford to pay for samples. Many aspiring artists and their fledgling labels—the next generation of would-be moguls hungry to unseat Diddy—cannot.”

Regardless of industry norms, given the expense and difficulty of clearance, some artists do not bother. With the wide availability of sampling technology, copyright owners cannot keep track of all sampling. Underground DJs and producers can therefore try to fly beneath the radar. In addition, copyright owners may elect not to pursue remedies unless the work sampling their copyrighted recording has commercial success. Indeed, bringing attention to an unauthorized sample can make the problem worse from the perspective of the copyright owner. In late 2003, musician and producer Brian Burton, under the name Danger Mouse, created the Grey Album—a mash-up of vocals from rapper Jay-Z’s Black Album and instrumentals from the Beatles’ White Album. Burton released his album in limited quantities through select Internet sites. After the album gained popularity, EMI, which owns the sound recording rights to the White Album, and Sony/ATV Music Publishing, which owns the musical compositions on that album, threatened to sue Danger Mouse and retailers distributing the Grey Album for copyright infringement. Fans rebelled. On February 24, 2004, proclaimed “Grey Tuesday,” hundreds of websites made the Grey Album available for free downloads to protest what they saw as corporate interference with fair use. EMI and Sony/ATV backed down.

The Grey Album incident highlights the ambiguous relationship major entertainment companies have to sampling. Even though they promote strong intellectual property rights in sound recordings and compositions, entertainment companies also benefit when new artists can draw from earlier works. These benefits go beyond the ability of a company’s own artists to sample. As the Grey Album incident illustrates, Sony/ATV, a subsidiary of the Sony Corporation of America, aggressively protects its music from uses it does not approve. Yet at the same time, Sony’s Creative Software unit makes and sells the popular ACID sampling software in versions for home users ($64.95) and for professional producers ($299.95). Therefore, while one Sony subsidiary is concerned with unauthorized uses of copyrighted music, another Sony subsidiary makes and sells the device that permits the practice. (Indeed, Danger Mouse created the Grey Album using the professional version of Sony’s ACID sampling software.) Sony does not, of course, tell its software customers to make liberal use of the Sony music catalog. But like other entertainment companies, Sony does have interests both in limiting sampling and promoting sampling technology.

COMPULSORY LICENSING FOR SAMPLES

In Chapter 9 we will see how the law should be reformed to protect fair uses of copyrighted works. Restoring fair use to sampling of sound recordings, however, might merit a more targeted approach. One remedy is simply for Congress to write into the Copyright Act a provision setting out how much of a copyrighted sound recording may be sampled as a matter of fair use law. The benefit of this approach is that it would provide instantaneous clarity in sampling. The downside is that sampling that exceeds the statutory quantity would be curtailed even if there were a good argument that traditional fair use analysis permits it.

An alternative is compulsory licensing of samples. Compulsory licensing provisions allow a person to make use of a copyrighted work in a way that would otherwise constitute copyright infringement, upon payment of a fee to the copyright owner. Copyright owners cannot prohibit uses allowed for by the compulsory licensing system. The Copyright Act includes provisions for compulsory licensing in certain circumstances. For example, an artist may release a new recording of a copyrighted musical work, an act that ordinarily would constitute copyright infringement, upon payment of a fee that is determined in advance by the Copyright Royalty Board within the Library of Congress.

Compulsory licensing could usefully be extended to sampling. Artists who wished to sample from prior sound recordings would be able to do so provided they pay the royalty fee. As is true of compulsory licenses for musical compositions, a compulsory license for a sound recording would specify how the recording may be used and what uses are prohibited. Uses beyond what the license permits would constitute copyright infringement.

This fix would not be perfect. Such an approach would not change the current industry norm that all samples must be licensed. It would not, therefore, encourage fair use of copyrighted sound recordings. Nonetheless, a system of compulsory licensing would have benefits over how things stand today. Compulsory licensing would allow artists to sample without having to negotiate with individual copyright owners. In some cases, a fee set by the Copyright Royalty Board would likely be lower than that charged by copyright owners for sampling. Copyright owners could not allow sampling to some artists but not others.

For the creator of a work, compulsory licensing represents a loss of control over the work, something that is often central to creative endeavors. For this reason, compulsory licensing is an exceptional feature of copyright law rather than the norm. In the sampling context, the interests of the artist in maintaining control of the work do not outweigh the benefits that will come from a properly functioning sampling regime. For one thing, the owner of a copyright in a sound recording is typically the record label, not the artist, who has already given up control over the uses that may be made of the recording. In addition, if fair use worked as it is supposed to, some sampling of sound recordings would be permissible and would already be occurring. The owner of a copyright who has convinced the world that fair use does not exist has only a weak claim to artistic integrity when compulsory licensing is proposed because fair use is not working.

WHAT SAMPLING TEACHES US ABOUT INTELLECTUAL PROPERTY LAW

Whether or not Danger Mouse had a valid claim to fair use in making the Grey Album, EMI and Sony’s acquiescence represented a rare instance of public pressure sufficient to persuade copyright owners to back down. Most sample and mash-up artists who draw attention to themselves run the risk of finding lawyers at their doorsteps. Fair use is not functioning properly when it is driven underground. Yet in the music industry, in which norms dictate that uses of copyrighted sound recordings be licensed and gatekeepers who control distribution channels enforce that requirement, this is exactly what has happened.

In sampling, there are three lessons for intellectual property law as a whole. The first lesson is that vagueness in the law of intellectual property allows the rights of intellectual property owners to expand. The short history of sampling is one in which owners’ rights quickly triumphed over users’ interests. This outcome occurred because the Copyright Act does not define with clarity how fair use applies to sound recordings. Copyright owners have been able to fill this void with their own vision of the law (in which fair use is prohibited) because the risk of litigation deters sampling and because music distributors prevent artists who have not obtained licenses from entering mainstream channels. Viewed as a case study, sampling shows that it is difficult to protect the interests of users (and, by extension, of the general public) without clear legal rules that define and protect lawful uses of copyrighted works.

A second lesson from sampling is that there are significant risks in relying upon courts to balance the interests of intellectual property owners with those of the public. From the district court’s biblical admonition to Biz Markie to the circuit court’s advice in the Bridgeport case to “get a license,” the courts have done a poor job in applying fair use law to sound recordings. We should not leave to the judiciary the task of defining how fair use applies in an entire industry, because courts lack the information and the tools to do more than decide specific disputes. A single case, such as the Bridgeport case, is not a good vehicle for making general rules of intellectual property law. Cases typically involve the interests of private parties with a specific dispute and with nobody in the courtroom to represent the public as a whole. Determining how intellectual property law applies to sampling—and how it applies in other contexts—should not be the work of judges.

The third lesson from sampling is that technological advances that allow for increased creativity can also lead to stronger protections for intellectual property. Music sampling thrived as a low-tech practice on the streets of the South Bronx, where copyright owners saw no reason to claim infringement. Today, when sampling technology is widely and cheaply available, owners of sound recordings take the position—backed up with the threat of litigation—that unlicensed sampling is categorically illegal. Sampling continues to occur without the authorization of copyright owners: underground DJs sample without licenses, and Girl Talk performs on stage without being sued. But the strengthening of copyright claims that has accompanied the development of sampling technology means that the creative potential of that technology has not been met.

Advances in technology have done more than encourage copyright owners to assert stronger rights. The next chapter shows how technology has also allowed copyright owners to decide for themselves the proper scope of their rights and to dismantle wholesale the protections intellectual property law provides to users.

Excerpt from Copyfraud and Other Abuses of Intellectual Property Law by Jason Mazzone, (c) 2011 by the Board of Trustees of the Leland Stanford Jr. University, all rights reserved. By permission of the publisher, www.sup.org. Except as authorized by the U.S. Copyright Act of 1976, no reproduction or distribution is permitted without the prior written permission of the publisher.

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Filed Under: beastie boys, book club, copyfraud, girl talk, jason mazzone, mashup, sampling