The State of Sampling: The Landscape of Sampling and Copyright Law in 2023

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.

Termination Rights and the Musical Modernization Act’s Blanket Licenses

By: Perry Maybrown

Copyright law in the digital age is tricky, to say the least. Scrolling through blog posts on WJLTA’s own website will demonstrate that fact; when you search the keyword “copyright” there are over 100 related posts. Music copyright law is no exception. Since October 2022, the U.S. Copyright Office has been working through the long and arduous process of formal rulemaking (also called notice and comment rulemaking) to pass a rule clarifying who should receive royalties from blanket licenses after a copyright transfer is terminated. A blanket license is a set amount of money (currently 9.1 cents per play) that a composer gets whenever his or her work is performed. This can be through plays from a streaming service or a recording broadcast in a public place, for example. The Copyright Office’s stance is that authors, not publishers, should receive the royalties after the copyright is terminated. 

Relatedly, a right found in the Copyright Act of 1976 has recently begun to slowly creep into relevance. According to 17 U.S.C. § 203, authors have the right to terminate the transfer of a copyright (except in specific circumstances like work made for hire) between 35 and 40 years after the transfer occurred This allows artists and their heirs to reclaim copyrights that were transferred in raw deals and renegotiate for better terms. However, in the case of music rights, this may not always be a clean break.

The issue is: who receives the royalty once the copyright transfer is terminated? Theoretically, the royalty rights should revert to the author or their heirs. Still, some loopholes allow companies to keep raking in profits even after the right has terminated. 

There is, however, an exception in the termination statute:

(1)A derivative work prepared under authority of the grant before its termination may continue to be utilized under the terms of the grant after its termination, but this privilege does not extend to the preparation after the termination of other derivative works based upon the copyrighted work covered by the terminated grant. 

A derivative work is ‘‘a work based upon one or more preexisting works, such as a . . . musical arrangement, . . . sound recording, . . . or any other form in which a work may be recast, transformed, or adapted.’’ In plain English – if the copyright holder makes a derivative work before the copyright is terminated, then they can use that derivative work the same way they have been using the original, but they cannot continue making derivative works.

For example, let’s say Musician A makes a beautiful song and then signs their rights to the song over to Company B. Company B starts making derivative works, such as a parody or a movie, based on Musician A’s beautiful song. Musician A decides that they do not like the deal they made with Company B and, after 35 years, terminates the copyright transfer. Company B can now no longer do anything in relation to that specific copyright. But, they can keep making money from the derivative works they made prior to the termination of the transfer.

Unfortunately, reality is often more complicated than the example given above. Rather than creating something themselves, companies will pass the license on to other more specialized groups in order to create a derivative work. Does the exception still apply under these circumstances? Take the example of Mills Music, Inc. v. Snyder, a 1985 case that involved this issue. There, a musician signed over their copyright to a publisher, who in turn granted a blanket license to recording companies. The publishing company was able to collect royalties through that license. But then the musician terminated the copyright transfer, posting the question of who should keep getting the royalties? The publisher didn’t make the derivative work themselves; they just licensed the work out to another company that then made the new work. In this case, the court found that the chains of licenses were protected by the exception and therefore the publisher got to keep the royalties.

However, things have changed since the 1980’s. Currently, the issue surrounds a type of blanket licenses introduced in 2018 that only apply to digital distribution of music. The Copyright Office’s view is that the exception does not apply to this newer type of digital licenses. To clarify its stance, the copyright office is working to promulgate a new rule. The three reasons the copyright office believes that the exception does not apply are:

  1. The blanket license is not something that can be “terminated.” Rather, it is a statutory license that is “self-executing.” Because it cannot be terminated, it would not make sense for a termination exception to apply.
  2. For the exception to apply, there must be a derivative work prepared “under the authority of the grant.” Under the new blanket licenses there is a presumption that digital music publishers are not creating their own derivative works, only obtaining and licensing sound recording derivatives from other companies. The blanket license that ties together the digital music publisher and company that made the derivative work is not one that is protected by the blanket license. 
  3. If the exception were to apply to blanket licenses then it would apply to all terms, which could lead to a wider effect than intended. For example, if the termination exception is applied broadly then it could also impact statutory changes. If there is a termination and Congress changes the statute on blanket licenses, what laws would apply? Would it be the law in force at the time of the termination? Or the most up to date law?

The copyright office concludes their analysis by discussing the reasons why, if the exception did apply, it would be irrelevant. The wording of the statutes indicate that “copyright owner” receives the royalties, and this owner is subject to change for a variety of reasons. Thus, the copyright office claims, it would be unreasonable to assume that the music publisher would become the permanent recipient of royalties. This rule proposal is subject to notice and comment, which means it’s subject to change. The public was able to offer comments on the proposed rule, sharing their views on its impacts and why they disagreed or agreed with the copyright office’s proposal. The opportunity to comment closed January 5, 2023. The copyright office will now consider all comments before releasing a decision. From the discussion occurring around this rule change, this update is absolutely needed. However, formal rulemaking is a long process. As of right now it is unclear how long that may take and what exact impact this new rule will have on digital licenses.

Fyre Festival 2017: A Transformative Way to Fraudulently Trap Millennials on a Remote Private Island in the Caribbean

Picture1By Miles Bludorn

If you had to scam thousands of uber-rich millennials into trapping themselves on a remote island in the Caribbean, how would you even begin to accomplish such a feat? Allow me to offer you some free advice based on the recent debacle that was the Fyre Festival 2017.   Continue reading

Work for Hire: Who Owns the Copyright In The Iron Man Theme?

ironmanBy Chike Eze

Generally, the author of a work owns the copyright in the work. However, an exception to the rule is that the employee or hiring party for whom the work was prepared is considered the owner of the work. The U.S. District Court for the Southern District of New York applied the “instance and expense” test in Urbont v. Sony Music Entertainment to determine whether the Iron Man Theme, created by Jack Urbont (“Urbont”) at Marvel’s request, was a work made for hire. Continue reading

A Step Toward Protecting Fair Use on YouTube

h13tuhz14ceqcmsazeb5By Juliya Ziskina

Since its beginning, YouTube has been involved in battles over copyright infringement, and over the years, YouTube has increased its policing of pirated material. The most common cases of copyright infringement involve using songs in a film or video without permission of the copyright holder, or placing segments of movies or music videos on websites where it is easy for the public to download them. Therefore, the giants of the entertainment industry have begun cracking down on websites such as YouTube.

YouTube, in response to these accusations, started to remove videos that may use segments of music or film without the copyright owner’s permission. Fan videos that incorporate a celebrity picture slideshow using a song as the primary audio track and videos of musicians playing covers of famous songs are common examples of videos that have been deleted from YouTube as a result of alleged copyright infringement. However, a widely known example of proper fair use is, for instance, a segment by the TV host Stephen Colbert that rebroadcasts cable news clips for the comedian to react to. Continue reading