Slate’s Tim Wu gets irate about “sample trolls,” who make legal claims of copywright violations when hip-hop musicians use the music they legally control. What set off the Columbia law professor was a suit filed against Jay-Z by Bridgeport Music, Inc. for his alleged use of several notes originally recorded by George Clinton. Wu details how Bridgeport came to possess Clinton’s copywrights by underhanded means, which they then parlayed into a series of lawsuits demanding payment for the use of Clinton’s music as samples.
The rise of rap presented a golden opportunity for Bridgeport. After years of demanding fees, in 2001, Bridgeport launched nearly 500 counts of copyright infringement against more than 800 artists and labels. The company, suing in Nashville, Tenn., located every sample of Clinton or other owned copyrights it could find. It took the legal position that any sampling of a sound recording, no matter how minimal or unnoticeable, is still a violation of federal law. Imagine that the copyright owner of The Lord of the Rings had sued every fantasy book or magazine that dared used the words elf, orc, or troll. That gives you an idea of the magnitude of Bridgeport’s campaign.
Since 2001, Bridgeport’s shotgun approach has led to many dismissals and settlements, but also two major victories. First, in 2005, Bridgeport convinced Nashville’s federal appellate court to buy into its copyright theory. In that case, Bridgeport Music v. Dimension Films, the defendants sampled a single chord from the George Clinton tune “Get Off Your Ass and Jam,” changed the pitch, and looped the sound in the background. (The result is almost completely unrecognizable—you can listen to it here). The Sixth Circuit created a rule: that any sampling, no matter how minimal or undetectable, is a copyright infringement. Said the court in Bridgeport, “Get a license or do not sample. We do not see this as stifling creativity in any significant way.”
(Emphasis added by me.)
Hip-hop is one genre of music I know the least about, but of course I’m aware of hit rap songs based on signature riffs by artists like Stevie Wonder, Rick James, Steely Dan, Ray Charles and many others. I always assumed these songwriters, or whoever owns the rights, were paid. Much of what makes the songs appealling are the sampled sounds, so payment seems fair to me.
This aspect of the music is also why I don’t bother with much hip-hop. Create your own cool riffs, I say. I like “Super Freak” and “Black Cow” in their original form — the rappers add nothing nearly as special as what they started with.
What gives someone else the right to appropriate elements so central to these songs and then call it original work? Even if you pay for it, sampling a well-known riff says to me you don’t have any ideas of your own. How hard would it be for me to sample, say, the opening of the Four Tops’ “Reach Out,” put it on a tape loop, and then come up with some rhyming doggerel about my troubles and woes to put on top of it? I could do that tonight. But I could sit in a studio for five years and never come up with anything a brilliant as that urgent, ethereal opening mix of flutes, handclaps and rhythm and bass guitars.
What Wu describes makes even less sense to me. Why would a hip-hop artist go to the trouble of snipping off a sample from another record — and then burying it in the new song in an “unrecognizable,” “unnoticeable” way? And if it’s so unnoticeable, how did Bridgeport come across it?
Wu tries to explain the culture and ethics of sampling this way:
In the big picture, copyright must continually work to ensure that the basic building blocks of creativity are available to artists and creators, especially as new forms of art emerge. We already know what this means for novelists: freedom to use facts, borrow stock characters (like Falstaff) and standard plots (the murder mystery). For filmmakers, it means the freedom to copy standard shots (like The Magnificent Seven‘s “establishment shot”). For rap music, it means the freedom to sample. Rap’s constant reinvention and remixing of old sounds makes it what it is; now is the time for the copyright system to get that. Vibrant cultures borrow, remix and recast. Static cultures die.
I don’t buy these comparisons. Yes, in music there are certain patterns, like the blues, that are used frequently. If someone tried to copywright the I-IV-V progression, it would be an outrage. The lonesome pedal steel guitar in country music is a cliche of the genre, which no one performer owns. However, a distinctive pattern of notes performed and recorded by particular musicians, which is then re-recorded in its original form and then mixed into another song is not a “building block of creativity” — it’s plagiarism. They’re not “reinventing…old sounds,” any more than I’m “reinventing” your car if I steal it and give it a paint job.
There’s no comparison to the format of a murder mystery, or the creation of a character reminiscent of another character. It’s more like taking three pages out of “The Big Sleep” and putting it into your new novel, and saying you wrote it. Yes, filmmakers can “copy standard shots,” in the sense of using a similar composition, but they can’t edit in footage from another movie without paying for it. My friends Todd and Robin Mason are finalizing a documentary right now, and must pay for the rights to all the old bits of film footage they have woven into their film. If Wu’s opinion is they can just take the old footage and claim it as “the basic building blocks of creativity,” then that would shave tens of thousands of dollars of their budget! I’ll tell them to give Wu a call.
This is not a defense of Bridgeport. The owner of that company might have come into possession of Clinton’s music through illicit means, as Wu’s article explains. But let’s say he didn’t. Let’s say Clinton still owned all his original copywrights. Would Wu hold it against him if he demanded payment for the samples from his recordings? But the logic of Wu’s position would hold that Clinton himself would be just as much of a cultural enemy — just as much of an exploitive litigant — as Bridgeport.
Wu’s side of the argument rests on making a distinction that strikes me as hazy — whether the sample was “recognizable” or not. Well, didn’t the owners of Clinton’s copywrights recognize it? Then it’s not “unrecognizable.” If they could hear it, so could any other George Clinton fan.