By: Cooper Cuene
De La Soul’s 1989 album 3 Feet High and Rising is a classic and hugely influential record that Rolling Stone recently described as “a landmark of the genre” when ranking it as the 33rd best rap album of all time. Until recently, however, a listener eager to give the album a listen would have quickly realized that it is difficult to find: Despite its classic status, until just last month, 3 Feet High and Rising was not available on any streaming platforms. This is because the album is densely packed with chopped up samples of other artists’ music that until recently either had not been or could not be cleared. Alas, the mere fact that sampling has been around since the dawn of rap music has not meant that the legal structure of the practice has improved for artists today. In a recent high-profile case, the late rapper Juice WRLD was forced to pay Sting 85% of the royalties for his song Lucid Dreams which sampled Sting’s Shape of My Heart. While it remains difficult (and expensive) for artists to use samples of existing music in new tracks, the state of sampling in 2023 is ripe for change. Multiple academics are eager to propose new regimes to regulate the sampling of other artist’s tracks, especially in a day and age where digital tools make the use of samples easier than ever.
The origins of the severe restrictions on the ability of producers to sample music can be traced back to Grand Upright Music v. Warner Bros, Inc., a 1991 decision by the Southern District of New York. This case set early precedent in its full-throated prohibition on sampling in music. The decision invoked the ten commandments in reminding the defendants “thou shalt not steal,” without contemplating that sampling could be a legitimate use of a copyrighted work. At issue was a sample on Biz Markie’s album I Need a Haircut, and the ruling immediately stunted the use of sampling throughout the music industry. As Pitchfork noted in their retrospective review of Public Enemy’s Fear of a Black Planet, following Grand Upright Music it became “forbiddingly difficult and expensive to incorporate even a handful of samples” into a new work. Unfortunately, later developments in the case law would be no kinder to the practice of sampling.
Later significant decisions concerning sampling were handed down in the 2000s and continued to be unambiguous in their prohibition of the practice. Bridgeport Music, Inc. v. Dimension Films is a prime example of the way that courts have approached sampling over the last few decades. In that 2005 case, the defendant released a movie with a soundtrack containing a track that sampled a short portion of a song called Get Off Your Ass and Jam. The film contained only a four second section of a guitar riff from the original song that had been slowed and stretched to extend to a sixteen-bar loop. Despite the defendant’s argument that the small amount of the original track used was de minimis, the Sixth Circuit still found for the plaintiffs. Their opinion was resounding, commanding artists to simply “[g]et a license or do not sample.” Despite the inflexibility of this standard, it remains valid law today.
Bridgeport’s standard and its rigidity has unsurprisingly sparked calls for reform from musicians and academics alike. A common thread among calls for reform is that a reformed legal regime governing licensing should aspire to more actively promote the Constitution’s grant of power to Congress to “promote the progress of . . . useful arts.” One leading alternative regime is the idea that works that make use of samples include a clear attribution to the original song in their title, much like songs do with featured artists already. John Ehrett is a prominent supporter of this alternative, arguing in his 2011 paper “Fair Use and an Attribution-Oriented Approach to Music Sampling” that the music industry should take up citation standards for samples akin to the specialized citation styles present in other industries. Under Ehrett’s proposal, songs that include samples would include an indication in their titles that they do so, such as “Song A (samp. Song B).” This would ensure that the original work gets the necessary recognition while also providing a smoother sampling process for the artist behind the new work. Others have proposed a sliding licensing scale that requires artists to pay less for a license the more they transform the work. In either case, it has become clear to many artists and academics that the current regulatory regime governing samples is untenable and should be reformed to better enable new artists to create with existing works.
By Miles Bludorn
By Chike Eze
By Juliya Ziskina
Washington Journal of Law, Technology & Arts 