Free Samples! It’ll Cost You!

A Guide Through the Legal Jungle Trivia Question

Who is the musical artist who released the album “All Samples Cleared” as  a humorous response to a landmark decision forbidding unauthorized sampling?

1. Beastie Boys
2. DJ Jazzy Jeff and the Fresh Prince
3. Biz Markie
4. Grandmaster Flash
5. Boogie Down Productions

The correct answer is C.  Rapper Biz Markie released the album “All Samples Cleared” as a self-deprecating (and playfully mocking) nod to the ruling in Grand Upright Music vs. Warner Brother Records.

For the title song of a prior album, “Alone Again”, Biz Markie had borrowed three words and eight bars of music from Gilbert O’Sullivan’s 1972 hit “Alone Again Naturally”. The practice of using portions of existing songs or recordings in new recordings is called sampling. Biz Markie’s sampling led to a lawsuit in which a federal court labeled Biz Markie’s unauthorized use of source material as copyright infringement and prohibited further distribution of the album.

Sampling may sometimes qualify as fair use but there is no guar­antee.  Sampling must go through the same fact-based fair use analysis as any other unauthorized use of copyrighted material. These days most artists releasing commercial recordings clear their samples.

(Thanks to Miguel Harvey, 2009 JD Candidate, Georgetown University Law Center, for his contribution to this trivia question.)

Comments

[Joy Butler]

In response to BAM’s comment, the potion of the Bridgeport decision to which you refer applies to sound recordings. You are correct that the Bridgeport court said there is no permissible sampling of a sound recording without the permission of the sound recording copyright owner. While many may view sampling to mean copying a pre-existing sound recording, sampling may also involve copying the underlying song only (by re-creating it) or copying other items such as lines from a movie. With respect to sampling such material, a fair use analysis still applies even if you accept the Bridgeport decision as the law of the land . . . which it is not.

Bridgeport is a 6th Circuit decision. While Bridgeport’s prohibition on sampling sound recordings is the law within the 6th Circuit, no court outside the 6th Circuit is obligated to follow the Bridgeport ruling. In fact, the Bridgeport ruling on sound recording sampling has received significant criticism. It is true that many in the music industry may have adjusted their clearance procedures based on the Bridgeport ruling.

Thanks for stopping by my blog and participating in the conversation.

/Joy Butler

[BAM]

Re. "Sampling may sometimes qualify as fair use but there is no guar­antee."

Not true and surprisingly off-base given the otherwise accurate information I've seen on this site. The law is clear on this - Sampling without a license is per se illegal, irrespective of any fair use defenses (See Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005)). Now there may be some context outside of using a sample in a new song in which fair use may be raised (perhaps in an art installation or an album review), but in the context of making music, sampling is strictly verboten.

Culturally speaking, this is but one reason hip hop is all but an empty shell of its former self. An untrained musician tapping out beats on his electronic keyboard is generally no match for the artistry and depth of sound found in samples. This issue is addressed in the following article:

http://www.boston.com/news/globe/living/articles/2004/09/14/will_ruling_on_samples_chill_rap/