Insanity: Judge Rules That Copyright Holder Of 10-Second Sample Deserves 84% Of The Royalties

from the clueless-judges dept

More insanity in the world of copyright, this time coming out of Denmark, where a judge has ordered the musicians behind a song to pay massive royalties to the copyright holder of a song from which they sampled a mere 10 seconds. Despite the fact that the musicians worked hard to find the copyright holder and to work out a deal, and despite the fact that it was just 10 seconds of music, and one of about 50 different elements in the song, the (apparently musically illiterate) judge decided that this sample was the major part of the song, and deserved 84% of the royalties. The article details how the musicians went to great lengths to work out a deal with the copyright holder, but ran into some problem as they dealt with one person who later turned out not to be the actual copyright holder. When they did discover the real copyright holder, again, they worked hard to come to an agreement. And, again, this is a 10-second sample, and one of dozens of elements in the song.

The major issue of the case concerned the definition of a sample is and whether the judge understood the nature of modern music. While Djuma Soundsystem argued – with support from Koda – that the sample was 10 seconds long, Meistrup argued in the court documents that “all of [Engin’s] original composition is used, up to three minutes play time.”

Ralf Christensen in newspaper Information criticised the judge’s lack of understanding after the verdict.

“It’s a harsh verdict not only because of its economic burden, which may affect Danish music in a way similar to what we’ve seen happen with American hip hop. It is also an expression of the court’s lack of understanding for the development of modern music.”

The article notes that part of the issue may be that the musicians being sued represented themselves and were "under prepared" for dealing with the court. But the real problem is that this ruling will act as a precedent and apparently it's the first of its kind in Denmark dealing with samples, and may effectively wipe out the ability to create music based on samples in Denmark. The band, Djuma Soundsystem, claims that it's now hired a lawyer to handle an appeal, so one hopes that a higher court recognizes the insanity of it all. In the meantime, however, the band owes approximately $200,000 (over 1 million Danish kroner) on a song which they say made them about $25,000 (or 140,000 Danish kroner).

Filed Under: copyright, denmark, music, samples

How Copyright Law Makes Sample-Based Music Impossibly Expensive... If You Want To Do It Legally

from the too-bad dept

We've talked a few times recently about the wonders of sample-based music, along with the fact that the legal issues surrounding copyright on such works means that many works are simply not legal. Kembrew McLeod, who made the excellent film Copyright Criminals, about the legal issues around sampling in hiphop, is also out with a new book, called Creative License: The Law and Culture of Digital Sampling. He's done a fantastic interview over at The Atlantic, where he talks about the ridiculous hoops a musician needs to go through these days to make "legal" sample-based music:

To legally sample a recording you have to negotiate a separate sample clearance fee with two different rights-holders: whoever owns the sound recording (the actual sound that's been fixed to magnetic tape, CD, etc.) and the song publisher (who owns rights to the underlying melody and lyrics). This takes a lot of money and time. For well-known songs, licensing fees can be very expensive—and sometimes rights-holders won't agree to a sample clearance for any price.

But it gets way more complicated when you start sampling songs that contain samples, which is increasingly the case today. If you wanted to sample, say, "Fight the Power" by Public Enemy—well, that song contains 20 samples. You'd have to get permission from Def Jam, which owns the sound recording rights, and then Public Enemy's song publisher. Then you'd have to go to the other 20 song publishers and get permission to use the song—it creates kind of a domino effect. This licensing logjam is only going to get worse and worse and worse as people increasingly sample the recent past, since that recent past is already a collage. It just becomes impossible to do all these clearances.

And that's why the more creative sampled music today just isn't cleared at all, in the hopes that rightsholders won't sue. But that means that the "legal" sampled songs just aren't nearly as creative. There were some really creative albums early on, back before rightholders started demanding the moon to clear a sample, but those days are long gone. McLeod talks about how he and his co-author looked at the classic Beastie Boys album Paul's Boutique to calculate how much it would cost to clear today:

We figured out—song by song, sample by sample—how much it would cost to release each record. Sticking with the example of Paul's Boutique: there are about 2.5 million units sold of that record. Incidentally, a lot of the samples on Paul's Boutique actually were cleared—but they were cleared at a time, 1989, when the industry didn't really see the value of sampling yet, so the rates for copyright clearances were much lower. Today, the rates they'd have to pay would make it impossible. Based on the number and type of samples in that record, Peter figured out that Capitol Records would lose 20 million dollars on a record that sold 2.5 million units.

Of course, when we talk about sample-based music, we often have even the staunchest copyright defenders in our comments admit that the law isn't great on this subject, and they're more open to such "creative" infringement. However, what strikes me as more troubling is that many of the comments on the McLeod interview go the other way, saying that sampling is wrong. I get the feeling that, in many of these cases, people are getting their own feelings towards the music itself (i.e., they don't like sample based music, and somehow feel that it's not "real" music) confused with the actual creative issues at play here.

Filed Under: culture, kembrew mcleod, samples

Music Publisher Discovers A Song In Its Catalog Has Been Heavily Sampled For Decades... Sues Everyone

from the statute-of-limitations? dept

Over at THREsq, they have the story of a small music publisher by the name of Drive-In Music. Apparently it holds the rights to the song "Let A Woman Be A Woman" by Dyke & The Blazers: A UK-based band called The Heavy apparently used the music in that song as the basis for its song "How You Like Me Now?" The music seems pretty clearly to come from the earlier song. Of course, Drive-In only noticed all of this after Hyundai used this song in a commercial it ran during last year's Superbowl: Rather than just suing those behind the Heavy's song, Drive In has basically gone on a legal rampage. It sued pretty much everyone even loosely connected with the song. So, it sued the label... but also the ad agency that put together the ad, the NFL for having the commercial during the Super Bowl and CBS for airing the ad. Apparently that lawsuit was settled, which is too bad, as it seems like many of those parties could push back on the claims.

Since then, however, Drive-In has suddenly discovered that the song has been sampled in a bunch of other songs, and has decided to sue over all of them. THREsq has a list:

• In July, Drive-in Music sued Sony BMG, Ruthless Records, and others for use of "Let a Woman Be a Woman" in the seminal gangster rap hit, "Menace to Society" by the group, Above the Law
• In August, Drive-in Music sued Capitol Records for use of "Let a Woman Be a Woman" in the 1990 rap song, "Diss You" from rapper, King Tee
• In September, Drive-in Music sued Busta Rhymes, Warner Music, Elektra Entertainment, Atlantic Recording Company and others for use of "Let a Woman Be a Woman" in 1991 old-school hip hop song, "Case of the P.T.A."
• In September, Drive-in Music sued Universal Music Group, Interscope-Geffen-A&M Group, and Beck Hansen for use of "Let a Woman Be a Woman" in the 1997 Beck song "Jack-Ass" from the Odelay album
• In fact, just this week, Drive-in Music has filed a second lawsuit over that very same Beck song. The company is going after the publisher, Cyandide Breathmint Music, the Dust Brothers, and various subsidiaries of UMG.

Of course, if I remember correctly (and you copyright lawyers out there, feel free to chime in), the statute of limitations on copyright is three years. I believe that this doesn't prevent Drive-In from suing over those older songs, but it would limit any damages to what's happened with those songs in the past three years (meaning: likely not very much).

Filed Under: music, samples
Companies: drive-in music

Jay-Z Explains He Is 'Honored' To Have His Work Remixed By Others

from the creativity-by-remix dept

A Dan points us to a fascinating interview with Jay-Z on Fresh Air that's worth listening to in its entirety. However, there are a few quotes concerning copyright and sampling that are most interesting. For example, there's a discussion about the infamous Grey Album -- a mashup by DJ Danger Mouse mixing The Beatles' White Album and Jay-Z's Black Album. As you probably know, EMI went insane over this release, threatening to sue everyone -- as it has done since then on other Beatles mashups to this day. However, I can't recall ever hearing anything, one way or the other, about Jay-Z's opinion on the album, and it's basically the opposite of the way EMI/The Beatles reacted (from about 12:50 in the interview):

Terry Gross: "So I've got to ask you how you feel about the Grey Album, which is the mash-up that Danger Mouse did of your Black Album and the Beatles' White Album, without any copyright permission. So, how do you feel about it musically and how do you feel about the fact that he did it?"

Jay-Z: "I think it was a really strong album. I champion any form of creativity and that was a genius idea to do it, and it sparked so many others like it. There are other ones that, you know, it's really good, there are other ones that, because of the blueprint that was set by him, that I think are a little better. But, you know, him being the first and having the idea; I thought it was genius."

Terry Gross: "Did you feel ripped off by the fact that he used your music on it without paying for it? Or did you think it doesn’t matter, it’s really good art."

Jay-Z: "No, I was actually honored that, you know, someone took the time to mash those records up with Beatles records. I was honored to be on, you know, quote-unquote the same song with the Beatles."

If you listen to the actual audio, you can hear his sincerity on that last part. Later on (around 23:45), he talks about the process of getting permission to sample Hard Knock Life, highlighting the ridiculousness of permission culture. While he was thrilled about having others sample his music and do stuff with it, when it came to getting the rights for Hard Knock Life, he had to convince the original songwriters to let him sample it, and to do so he told "a big lie" concerning how he had seen the play, Annie, on Broadway as a kid, and had written an essay for some school essay contest about the importance of seeing Annie on Broadway. While the original songwriter of Hard Knock Life notes that he was happy with the Jay-Z song, it still highlights one of the problems with permission culture. Basically, Jay-Z had to beg (and lie) to create art.

Filed Under: copyright, danger mouse, grey album, jay-z, remix, samples

If Entire Books Can Be Sampled, Why Not Songs?

from the stand-up-for-free-expression dept

Recently, there's been some talk about David Shield's new book, Reality Hunger, which is getting some press attention for the fact that most of the book is "plagiarized." Or, rather, the book is derivative. It's a literary collage, of sorts, with only an appendix at the end that links the works back to the original authors -- and that appendix was put in against Shield's original wishes, but on the command of his publishers' lawyers. Of course, as many have noted, even the idea is derivative. Three years ago we wrote about Jonathan Lethem's wonderful Harper's article, The Ecstasy of Influence, which, again, was a collage of other people's works.

And, of course, this follows on the recent "controversy" over a German teen who had done something similar, but did as Shields originally wished, in that she chose not to directly credit the sources in the book.

While some are confused by all of this into thinking that the entire concept of "authorship" is at risk -- many are realizing that's utter hogwash, and this actually shows how unique forms of new content creation are thriving.

However, there is a separate issue that's worth pointing out. While there is some controversy over these sorts of books, we're not hearing about lawsuits -- and we're definitely not hearing about demands for licensing fees. Yet, in the music world, thanks to a series of highly questionable legal rulings, it's impossible to do the same thing. If you make a collage in music, you have to clear every sample or risk getting sued. In some cases, such as Girl Talk, the lawsuits haven't come, but plenty of sampling lawsuits are still filed, and many in the music business want to clear every sample.

But this vast split between the process of creating a remixed/collage book and a remixed/collage music is reasonably upsetting many. Copycense points us to a manifesto, refering back to the discussion on Reality Hunger, suggesting that musicians should stand up for their rights to make derivative, transformative works without having to pay for every sample -- just as what's happening in the literary world:

Rather than take offense however, I'd like to turn the tables.  Indeed what Shields has done is art, and should be treated as original despite being a derivative work.  Where this is accepted, and every day it remains on the market supports its acceptance, then all other original derivative works must be held to the same standard.  The archaic practice of extorting sample based artists for their profits on the legal basis of treating their art only on intellectual property terms, must be out eliminated.  If an author is legally protected in their use of derivative works by simply citing the reference to their usage, there can be no double standard when it comes to musicians.

And so I put forth to sample based producers, and the labels who support them, it's time to take this issue to task.  End your relationships with the sampling clearing houses.  Create your art without the fear of legal repercussions.  Release it for profit, with your sample sources clearly stated.  At first there will be legal cases brought up, but DO NOT BACK DOWN.  You are on the side of the right, and it is only by pushing forward that the laws will change to reflect that.  I believe there are lawyers and activists who need to, as well as those who already do, stand with us to take this as far as it needs to go, but it begins with us the artists not being afraid to stand up for what is right.

Of course, some might argue that it's not necessarily that this is legal in the literary space, just that it's rare for a lawsuit to be filed over such appropriation. Tragically, that's not the case in the music business. But, on the whole, I do agree that it's high time that the courts fix what they got so very, very, very wrong on the legality of de minimis copying of music -- and one way to make that happen is to get musicians who sample to stand up for their rights to sample without having to pay a toll.

Filed Under: books, copyright, fair use, literature, music, plagiarism, samples

Germany Realizes That Music Samples Can Be Fair Use

from the it's-a-start dept

One of the absolute worst copyright decisions of the last few decades was the ruling in one of many Bridgeport lawsuits, which established the idea that there simply is no fair use when it came to music samples. The ruling found that if you did any sampling, even if it's unrecognizable and has no impact on the original song, you still have to pay a royalty. This seems wrong on so many levels, it's still amazing that a judge ruled that way, ignoring the traditional four factors test for fair use.

Over in Germany, a district court seemed to take the same path in a case brought by German legends Kraftwerk against a hip hop artist that used a 2-second sample. However, the good news is that an appeals court has put a bit of sanity back into the process, noting that a two second sample used in a way where it's barely recognizable should obviously be fair use.

The ruling is hardly a huge win, as it still requires the samples to not use the melody and be in a completely new piece of music (thanks to Adam for sending this in). Overall, it's a better ruling than the original ruling, though still seems to limit fair use way beyond what is reasonable when it comes to music sampling.

Filed Under: copyright, germany, kraftwerk, music, samples

Who Will Be The First To Sue Girl Talk Over Music Samples?

from the taking-bets? dept

A few weeks back when we mentioned that the musical act Girl Talk was releasing a new album using the pay what you want model, one element we didn't dwell on was the fact that Girl Talk's genre might be best described as "mash up music." That is, Greg Gillis, the guy who is Girl Talk, takes samples from tons of songs and mixes them together to create something totally new. While there may be some who disagree, listening to Girl Talk, I find it difficult to believe that Gillis is any less of a musician than the musicians he samples -- he's just playing a different kind of instrument.

But there's a big question -- whether or not Girl Talk's albums are legal or are they basically massive copyright infringement cases. If Gillis were to actually go around licensing all the snippets he samples, such an album would be impossible to make -- showing (yet again) how copyright would act as disincentive for creation rather than incentive. So far Gillis hasn't actually been sued, though that seems unlikely to last. On the positive side, some big name musicians interviewed in a recent Wall Street Journal article about Girl Talk sound much more honored than litigious to be included on a Girl Talk album. However, with over 300 samples used on the album, there's almost certainly going to be a few who get upset. The article, for example, suggests that the woman in charge of the copyright for the band the Guess Who is planning to go after Girl Talk, noting that: "We'll chase it down. What more can you do?" Well, actually, there's plenty more that you can do -- such as recognizing that no one who hears the music on Girl Talk is going to see that as a replacement to the Guess Who's album -- and, if anything, it might entice new fans to the original.

But, eventually a legal battle is going to pop up -- and while Gillis and his label are banking on "fair use" claims to protect them, the history of court cases on this particular question have shown the courts (wrongly) seem to count nearly any sample, no matter how minor to require a license. This has created a small industry of "sample trolls" getting the rights to various songs (often via very questionable means) and then suing anyone who samples just a few notes from it. It seems quite likely that sooner or later someone is going to go after Gillis for this. And, while it's nice that some artists are honored by Gillis's use of their music, that probably won't stop others from suing. Luckily, Gillis has at least one big supporter in Congress -- and perhaps a lawsuit against him will help bring this issue to the attention of lawmakers.

Filed Under: copyright, fair use, girl talk, greg gillis, samples

Sample Troll Sues (And Loses) Over Sample Of A Song It Claims Sampled Its Song

from the follow-that? dept

We've written a few times about Bridgeport Music, which has been called a "sample troll". The small company claims ownership of numerous copyrights on songs written by George Clinton -- about which George Clinton claims the main guy at Bridgeport forged Clinton's signature to obtain. Bridgeport is largely responsible for many of the lawsuits you hear about these days concerning "samples" being used in music, as it effectively convinced the Sixth Circuit Court that there was no fair use when it came to samples, and any sample requires royalty payments. However, in its latest lawsuit, it may have even overstepped those boundaries. William Patry points us to the details that show the lengths to which Bridgeport will go to try to squeeze money out of songs it may not even really own the rights to. The case involves a Snoop Dogg song that apparently used a sample of an old Clinton tune (something that Clinton encourages (video clip)). But, that's not the problem. The problem appears to be that two other musicians later sampled the Snoop Dogg tune (not the Clinton tune), and therefore Bridgeport is now claiming that Universal Music (who owns a small fraction of the rights associated with the Snoop Dogg tune) owes it money for licensing a song that had a sample that may or may not have been owned by Bridgeport. Luckily, the courts have tossed out the suit, noting that Bridgeport's evidence is incredibly weak.

Either way, just the fact that Bridgeport thinks it has a claim shows to what ridiculous lengths people are taking copyright laws these days. To recap: Bridgeport may or may not own the copyrights to some George Clinton songs (Clinton himself claims that Bridgeport does not own those rights and forged signatures to pretend it does). However, Bridgeport is suing Universal Music who owns a tiny fraction of the rights for a Snoop Dogg song which may or may not have sampled a tiny portion of a George Clinton song, and, in turn had a small section of the Snoop Dogg song sampled by two other musicians. The connection here between the two parties involved in the lawsuit is so distant that the idea that copyrights even play a remote part here is laughable. Unfortunately, though, that is the length to which companies will go these days thanks to our overly broad copyright laws.

Filed Under: samples, snoop dogg
Companies: bridgeport music, universal music