Many believe that the birth of rap began with Sugarhill Gang’s “Rapper’s Delight,” but it also was the first popular rap single to employ ‘sampling.’ This was not sampling in the traditional sense, however, because the Gang rapped over the recording of a live band playing the backing beat. It was actually Grandmaster Flash and others in the 70’s and 80’s, instead, who pioneered the direct use of others music in their own creations and laid the groundwork for the fight over music sampling to come.

The first salvo in this legal battle began with 2 Live Crew’s 1989 album, “As Clean as They Wanna Be.” The album’s track “Pretty Woman” sampled the bass, guitar, drums, and some lyrics from Roy Orbison’s “Oh, Pretty Woman” without permission. With a lot of money potentially on the line, the song’s copyright owners sued for copyright infringement claiming the samples devalued the original. The band responded that they had only made ‘fair use’ of the song, but the case of Campbell v. Acuff-Rose Music reached the Supreme Court in 1994.

The Supreme Court ultimately sided with 2 Live Crew. It decided that no infringement happened because the two songs targeted different audiences and that the fair use doctrine protected 2 Live Crew’s version as a parody. The Supreme Court, instead, believed it very rare (or non-existent) that any work is strictly new and original. Every work of art must borrow from someone else’s ideas.

Skirmishes over music sampling have continued in the courtroom and courts have seemed to move away from the decision in Campbell. MC Hammer ended up paying Rick James millions from his record earnings because he sampled “Super Freak” without permission in his song “U Can’t Touch This.” More dramatically, a court even forced The Verve to turn over 100% of its royalties to their hit “Bitter Sweet Symphony” even though it sampled other music with permission.

Their licensed sample was a cover version of the Rolling Stones song “The Last Time.” While The Verve got permission from the musicians who performed the cover version, they did n't have permission from the Rolling Stones. This just goes to show how tangled music sampling can end up being. Even sampling 3 notes can land you in court according to the case of Bridgeport Music v. Dimension Films.

Big recording artists and companies have reaped vast sums over sampling claims, but a free culture movement has started to push back. The movement argues that copyright law is too restrictive and stifles the creativity of new (and poor) artists who must seek costly permission before sampling. It tries to further its goal of the free exchange of music ideas by encouraging artists to license their audio works under creative commons. Other artists can then sample the original as long as they also license their new version under the creative commons. Some artists on the opposite side of the spectrum even just choose to ignore copyright law completely when they create.

Do you use samples? Do you have anything to add? How do you feel about the whole sampling issue? Let us know in the comments below.

UPDATE: The Harlem shake contains samples without permission an its gonna cost the artist and his label.

Ari says… “It’s not surprising that Hector Delgado is looking to recover for the use of his sample in the Harlem Shake.  From a copyright perspective it’s interesting WHY it’s problematic.  While any uncleared sampling can infringe on the original artist’s copyright, the phrase ‘do the Harlem Shake’ is clearly a central part both of the original song and the Harlem Shake.  Delgado has a pretty strong case in going after most or all the revenues Mad Decent and Baauer pulled in from this viral hit”.

Guest Post: Ari Good, JD LLM, a tax, aviation and entertainment lawyer, as well as DJ himself. He graduated from the DePaul University College of Law in 1997 and received his LL.M. in Taxation from the University of Florida. Ari represents DJs, live musicians, fashion models and other entertainers in copyright, licensing and contract matters.

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