This comment proposes a modified version of the fair use analysis of section 107 of the Copyright Act and a modified version of the compulsory license provisions of section 115 of the Copyright Act, in light of the realities of today\u27s music environment and authorship, as well as the underlying purposes of our copyright laws

Maier, Charles E.

English

The law of copyright has its origins in the constitu- tion of the United States, which grants congress the power  to promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discov- eries. To carry out this mandate, Congress passed the Copyright Act, establishing the basic rights to be enjoyed by the copyright owner, including the right of adaptation, and the right of reproduction. \u27\u27
Sampling seems to be a clear violation of these exclusive rights. However, Congress has provided an excep- tion, the affirmative defense of fair use, allowing activity- which would otherwise be infringing to not only be allowed, but encouraged.
The  fair use  defense has been characterized as,  an equitable rule of reason to be applied where a finding of infringement would either be unfair or undermine \u27the progress of science and the useful arts:  This provision has been used repeatedly over the years to justify parodies, educational use, de minimis uses, and more.
But traditional fair use analysis in the area of sam- pling has produced mixed results, due mainly to the fact that most, if not all, sampling cases are for commercial gain, and they tend to take the most recognizable portion of a musical composition (a highly creative work). Thus, the tra- ditional fair use analysis is doomed before it even gets off the ground because three of the four factors will undoubtedly weigh against the sampler.
This comment proposes a modified version of the fair use analysis of section 107 of the Copyright Act and a modified version of the compulsory license provisions of section 115 of the Copyright Act, in light of the realities of today\u27s music environment and authorship, as well as the underlying purposes of our copyright laws

Vanderbilt University Law School: Scholarship@Vanderbilt Law

Vanderbilt Journal of Entertainment & Technology Law Volume 5 Issue 2 Issue 2 - Spring 2003 Article 8 2003 A Sample for Pay Keeps the Lawyers Away: A Proposed Solution for Artists Who Sample and Artists Who Are Sampled Charles E. Maier Follow this and additional works at: https://scholarship.law.vanderbilt.edu/jetlaw  Part of the Intellectual Property Law Commons Recommended Citation Charles E. Maier, A Sample for Pay Keeps the Lawyers Away: A Proposed Solution for Artists Who Sample and Artists Who Are Sampled, 5 Vanderbilt Journal of Entertainment and Technology Law 100 (2020) Available at: https://scholarship.law.vanderbilt.edu/jetlaw/vol5/iss2/8 This Comment is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Journal of Entertainment & Technology Law by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact mark.j.williams@vanderbilt.edu. Semi-Finalist Paper from the National Academy of Recording Arts & SciencesEntertainment Law Initiative Annual Writing CompetitionA Sample for PayKeeps the Lawyers Away:A Proposed Solution for Artists Who Sampleand Artists Who Are Sampled- By Charles E. Maier*he music industry, and the artists and composerswithin it, have dealt with many issues over the years. Inthe early days, the record companies were guilty of takingadvantage of unsuspecting or ignorant artists by forcingthem to give up their copyrights in order to becomefamous, and usually giving nothing of long term value inreturn. I In the 1970s and early 1980s the problem becameunauthorized duplications through the use of cassetterecording technologies which for the first time allowed thegeneral public to cheaply and easily make illegal copies ofcopyrighted material.' Although this had some impact, itwas limited due to the inherent degradation in quality eachtime a cassette is copied from, whether it be master cas-sette to second cassette, or copies of a cassette where theoriginal cassette copy is from a CD.3Today the issues include digital technologies andthe internet, and the subject of this comment, digital audiosampling. Digital audio sampling is the process of using acomputer to manipulate small pieces of an existing compo-sition, as embodied in a sound recording, in the creationof a new composition by looping them throughout thenew work with varying degrees of frequency ranging froma single occurrence to almost continuous use which per-meates the entire work, and with varying changes to thetimbre, pitch, etc. of the original data.4Other authors have argued that sampling is notcopyright infringement or, that if it is infringement, it shouldbe exempted by the fair use doctrine.' My argument is thateven if you disagree with these other authors and find thatsampling is infringement, it should be regulated in a mannersimilar to that contained in the copyright act for mechanicalreproduction licensing.6 Artists using digital audio samplingare not pirates. They are not taking money directly out ofthe copyright holder's pockets by making wholesale copiesof the work of others and selling them. 7 Instead, artistswho sample generally combine one or more small samplesinto a new composition of their own creation, thereby cre-ating a new and different work that has little or no effect onthe market of the sampled work.8 In fact, the artist whosework is sampled frequently sees a renewed demand for theoriginal work due to its exposure to an audience that oth-erwise would never have discovered it.9The law of copyright has its origins in the constitu-tion of the United States, which grants congress the power"to promote the Progress of Science and the useful Arts,by securing for limited Times to Authors and Inventors theexclusive Right to their respective Writings and Discov-eries. 0 To carry out this mandate, Congress passed theCopyrightAct, establishing the basic rights to be enjoyed bythe copyright owner, including the right of adaptation, andthe right of reproduction. ''Sampling seems to be a clear violation of theseexclusive rights. However, Congress has provided an excep-tion, the affirmative defense of fair use, allowing activity-which would otherwise be infringing to not only be allowed,but encouraged. 12The "fair use" defense has been characterized as, "anequitable rule of reason to be applied where a findingof infringement would either be unfair or undermine 'theprogress of science and the useful arts:" 13 This provisionhas been used repeatedly over the years to justify parodies,educational use, de minimis uses, and more. 14But traditional fair use analysis in the area of sam-pling has produced mixed results, due mainly to the factthat most, if not all, sampling cases are for commercial gain,and they tend to take the most recognizable portion of amusical composition (a highly creative work). Thus, the tra-ditional fair use analysis is doomed before it even gets offthe ground because three of the four factors will undoubt-edly weigh against the sampler. 1sThis comment proposes a modified version of thefair use analysis of section 107 of the Copyright Act and amodified version of the compulsory license provisions ofsection 115 of the Copyright Act, in light of the realities oftoday's music environment and authorship, as well as theunderlying purposes of our copyright laws.In analyzing sampling under the traditional fair usedoctrine, as mentioned earlier, elements I and 2 will almostalways going to weigh against a finding of fair use becausethe composition containing the sample is almost certainlygoing to be for commercial use. Since what has been sam-pled is a musical composition, the courts will find that it ishighly creative in nature and thus should be protected. 6This is why a new solution is needed, and why that solutionshould focus on a modified version of factors 3 and 4 of thefair use test.Factor 3 focuses on the amount of the work taken.'7This is not simply a matter of taking the amount sampled inseconds and dividing it into the total time of the composi-tion, but involves an analysis of how much was taken andof the importance of what was taken as viewed in light ofthe original work as a whole. " It is likely that the sampledpiece will be a recognizable portion of the original workbecause, like parody, to be successful a sample needs toconjure up the original in the mind of the listener. Thus, therelevant inquiry needs to be whether or not the sampledwork is being used as a substitute for originality and hardwork on the part of the author of the new work. 9 In otherwords, has the author of the new work used the sample inorder to free-ride on the goodwill established by the origi-nal work rather than to create his/her own unique compo-sition?2' The basic test for this would be to analyze the newwork to see if it would likely be successful even without thesampled work. In other words has the new author addedsignificant originality to the composition so that he has trulycreated a new and unique work?2 Thisis similar to the "transformative" anal-ysis conducted by the court in Camp-bell v. Acuff-Rose Music, Inc,: "the moretransformative the new work is, the lesssignificant are other factors, like com-mercialism, that might weigh against afinding of fair use". 2Factor 4 analyzes the effectsthe allegedly infringing work has on themarket for the original composition.It would seem to be the single mostimportant factor in a majority of thecourts, due to the rationale behind thecreation of copyright law. 23 If the purpose of copyrightis to grant a limited economic monopoly to the artist inreturn for his creation's contribution to the advancementof the arts and sciences, it would seem that only uses whichinfringe upon this economic monopoly should be ques-tioned. As mentioned earlier, sampling is not likely to havea negative impact on the market for the original work, butis, if anything, likely to benefit the original artist by eitherrescuing his work from obscurity or by exposing him toa new audience. 24 Because the new work containing thesample is usually aimed at a completely different audience, itis unlikely to cause a loss in sales of the original. Therefore,there is no harm to the owner of the original work, andthus no infringement.This solution represents a balance between pro-tecting an artists economic interest in exploiting his workwhile not depriving the public of the "advancement of thearts" through the creation of new and original works thatmay have borrowed from elements of a prior work. Thissolution proposes that courts addressing sampling focus ona modified version of factors three and four of the fair usedoctrine as set out below.A.) If the author of the new work is found to haveviolated factor 3 by using the sample in such a way thata reasonable person would find that the new compositionwould not be able to stand on its own without the use ofthe sample or would be substantially different without thesample, and/or to have violated factor 4 by taking away asubstantial market of the original work, then the author ofthe new work would be subject to the compulsory licensefees of section 115 of the Copyright Act. This would be thecase if the artist had used that provision to obtain a com-pulsory mechanical license for a cover version of the worksampled.2" An example of this might be Biz Markie's sampleof Gilbert O'Sullivan's "Alone Again, Naturally" in his com-position "Alone Again", which was the subject of the GrandUpright Music Ltd. v. Warner Bros. Records, Inc.B.) If the court finds no violation of factor 3 and/or4, a de minimis violation, or insufficient originality in thesampled portions to warrant copyright protection, then theauthor of the new work would not be required to pay forhis use of the sampled work. De minimis use, one that isneither quantitatively nor qualitatively significant, should bedefined as a use having an insignificant effect on the marketof the original owner and having taken a minor or commonportion of the sampled piece such that a reasonable personwould either not recognize it as having come from the orig-inal work, or would consider it insignificant in his or heropinion of the new work. 26 Common notes and chords,or other small bits of a work must also be examined toNUSICA Sample for Pay Keeps the Lawyers Awaysee if they qualify as original elements worthy of copyrightprotection. 17C.) If the author of the new work is found to vio-late factors 3 and/or 4, but the violation, while more than ade minimis violation, cannot be said to be a substantial viola-tion, as defined in factor A, then he would be subjected toa pro-rated portion of the compulsory mechanical licensefee.28 This is to be the remainder category for situationswhich do not fall under "A" or"B" and would likely encom-pass the majority of cases.Furthermore, a plaintiff who prevails under the firstcondition could petition the court to award reasonablecosts and attorney's fees upon a showing of bad faith on thepart of the defendant. A showing of bad faith would dependon the facts of each case, but might be demonstrated by apattern of behavior on the part of the defendant to, know-ingly and willingly, capitalize on the success of the originalwork of others with little or no effort on his part to createhis own unique composition, or to acquire licenses whenhe knew or should have known they would be required. Byanalogy, a defendant who prevails under the second condi-tion could petition the court and would be awarded costsand fees upon a showing of his good faith effort to obtain alicense from the plaintiff before his use of the sampled com-position, which the plaintiff refused without good cause, orby his showing a pattern of behavior on the part of theplaintiff to file frivolous claims in similar situations.This solution, I believe, would encourage artists tocreate new works containing samples of older works, byprotecting them and their record labels from the possibil-ity of being enjoined and having to expend large amountsof money to reclaim infringing products already in produc-tion and distribution. The rights of the copyright owner ofthe sampled work would also be preserved by remunerat-ing them for any use not determined to be de minimis orfair use under this plan. Since most of the cases broughtwould likely fall into the third category or perhaps the firstcategory, the original owner is assured of some compensa-tion for the use of his work, and the sampler is assuredof his right to sample the work in question provided hepays the fee. This should create an incentive for negotia-tion between the parties to obtain favorable license fees,while also taking away the apprehension resulting from theinability to find the original copyright owner before produc-tion begins, and reducing any litigation costs incurred byplaintiffs to collect monies due them. An agency, such as theHarry Fox Agency, could easily be engaged to handle theissuance of licenses and the collection of fees.The purpose of copyright -- to encourage individ-ual creativity by personal gain -- is the best way to pro-mote the advancement of the arts and sciences. It is notmeant to allow artists to stifle the advancement of the artsand sciences by grants of absolute power over all uses oftheir creation for an extended period of time. Rewardingthe creators of artistic works is therefore only a secondaryconsideration after promoting the advancement of the artsand sciences. This solution will undoubtedly be viewed bysome as eroding the importance of copyright, I believe thatit is a workable solution to a problem that is only going toincrease as technology advances and the public outcry overwhat is or is not infringement continues to grow.ENDNOTES*J.D. Candidate, Franklin Pierce Law Center, 2004; ManagingEditor, Pierce Law Review; B.S. Pharmacy, Northeast Louisi-ana University, 1993.See generally Fredric Dannen, Hit Men: Power Brokers andFast Money Inside the Music Business 3 1-58 (Vintage Books1991).2 L. Kevin Levine, Digital Music Distribution via the Internet: Isit a "Platinum" Idea or a "One Hit Wonder?," 104 W.Va. L. Rev.209, 218 (Fall 2001).3 Id.4 See Jeffrey R. Houle, Digital Audio Sampling, Copyright Lawand the American Music Industry: Piracy or Just a Bad "Rap"?,37 Loy. L. Rev. 879,880-882 (Winter 1992).1 See generally Carl A. Falstrom, Thou Shalt Not Steal: GrandUpright Music Ltd. v.Warner Bros. Records, Inc. and the Future ofDigital Sound Sampling in Popular Music, 45 Hastings L.J. 359(1994); Sherri Carl Hampel,Are Samples Getting a Bum Rap?:Copyright Infringement or Technological Creativity?, 1992 U. Ill.L. Rev. 559 (1992).6 See 17 U.S.C. § 115 (2000).1 Falstrom supra note 5, at 370-71.8 Id. at 371.9 Id. at 374.10 U.S. Const. art. I, § 8, cl. 8.1117 U.S.C. § 106 (2000).2 17 U.S.C. § 107 (2000).'1 Marshall A. Leaffer, Understanding Copyright Law, § 10.0,427 (3d ed., Matthew Bender & Co., Inc. 1999).MUSIC14 See e.g., Sony Corp. of Am. v. Universal City Studios, Inc.,464 U.S. 417 (1984), Maxtone-Graham v. Burtchaell, 803F2d 1253 (2d Cir. 1986), cert. denied, 481 U.S. 1059 (1987),Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986), Campbell v.Acuff-Rose Music, Inc., 510 U.S. 569 (1994).See Campbell, 5 10 U.S. at 578-94 (a discussion of the fairuse factors when a musical composition is involved).16 Id. at 578-586.1717 U.S.C. § 107 (2000)."I See Bridgeport Music, Inc. v. Dimension Films LLC, 2002WL 31496312 at *8 (M.D.Tenn. Oct. 11, 2002), Newton v.Diamond, 204 FSupp.2d 1244, 1257 (C.D. Ca. 2002), Camp-bell, 5 10 U.S. at 586-589.'9 Falstrom, supra note 5 at 374; cf Campbell, 5 10 U.S. at588 (discussing why a parody usually takes the heart of theoriginal work).20 Falstrom, supra note 5, at 369 (without use of the sample,there would have been no music at all); see also Campbell,5 10 U.S. at 586-90 (discussing the proper analysis underthe third fair use factor when a musical composition isinvolved).2 This could be accomplished through surveys askingwhether or not they would have purchased the song if itdid not contain the sample, asking for an opinion of thesong after playing it without the sample, or other relevantquestions.22 Campbell, 5 10 U.S. at 569, 579.23 17 U.S.C. § 107 (2000); see also Campbell, 510 U.S. at578-594 (1994) (for an in-depth discussion of all four fairuse factors).24 Falstrom, supra note 5, at 373-74.25 See 17 U.S.C. § 115 (2000) (once a work has beenpublished, section 115 allows anyone to obtain a mechan-ical license to reproduce it, provided he/she adheres tothe requirements of that section and pays the compulsorylicense fee currently in effect).26 See Bridgeport Music, 2002 WL 31496312 at **8- I I (dis-cussion of the "de minimis use" analysis employed by thecourts).27 Id. at **7-8.28 Several formulas could be devised for this purpose, butperhaps the simplest would be a rate equal to 50% of thecurrent compulsory license rate.29 Mazer v. Stein, 347 U.S. 201, 219 (1954), see also Bridge-port Music, 2002 WL 31496312 at * I I ("A balance must bestruck between protecting an artist's interests, and depriv-ing other artists of the building blocks of future works.").'o Mazer, 347 U.S. at 219 (quoting U.S. v. Paramount Pictures,Inc., 334 U.S. 131, 158 (1948)).& /.

A Sample for Pay Keeps the Lawyers Away: A Proposed Solution for Artists Who Sample and Artists Who Are Sampled

https://scholarship.law.vanderbilt.edu/cgi/viewcontent.cgi?article=1491&context=jetlaw

A Sample for Pay Keeps the Lawyers Away: A Proposed Solution for Artists Who Sample and Artists Who Are Sampled

Abstract

Similar works

Full text

Available Versions

Vanderbilt University Law School: Scholarship@Vanderbilt Law