September 15, 2004

Sampling=(Get Off Your Ass and Jam)=Piracy

by Scott Rettberg · , 1:43 am

Bridgeport and Westbound claim to own the musical composition and sound recording copyrights in “Get Off Your Ass and Jam” by George Clinton, Jr. and the Funkadelics. We assume, as did the district court, that plaintiffs would be able to establish ownership in the copyrights they claim. There seems to be no dispute either that “Get Off” was digitally sampled or that the recording “100 Miles” was included on the sound track of I Got the Hook Up. Defendant No Limit Films, in conjunction with Priority Records, released the movie to theaters on May 27, 1998. The movie was apparently also released on VHS, DVD, and cable television. Fatal to Bridgeport’s claims of infringement was the Release and Agreement it entered into with two of the original owners of the composition “100 Miles,” Ruthless Attack Muzick (RAM) and Dollarz N Sense Music (DNSM), in December 1998, granting a sample use license to RAM, DNSM, and their licensees. Finding that No Limit Films had previously been granted an oral synchronization license to use the composition “100 Miles” in the sound track of Hook Up, the district court concluded Bridgeport’s claims against No Limit Films were barred by the unambiguous terms of the Release and Agreement. Bridgeport Music, Inc. v. Dimension Films LLC, 230 F. Supp.2d 830, 833-38 (M.D. Tenn. 2002). Although Bridgeport does not appeal from this determination, it is relevant to the district court’s later decision to award attorney fees to No Limit Films.

Am I the only one who finds intellectual property rulings to be occasionally absurdly hilarious, like some kind of peculiar aleotory machine poetry? Unfortunately, this sample is from a ruling by the 6th Circuit Court of Appeals that finds sampling to be piracy, as Lessig details in his blog.

13 Responses to “Sampling=(Get Off Your Ass and Jam)=Piracy”

  1. Gabbahead Says:

    This isn’t new. The whole DJ Grey Mouse vs The Beatles contraversy only brought to light an age-old war within the music industry on whether sampling is a valid form of music or not. The problem is that a lot of DJs use sampling in live mixes, something they cannot repeat because of the red tape (and money) involved around licensing.

    But ruling that sampling is piracy, while theoretically sound, is adeeply bias and impractical solution. It’s like arguing that unless you paint, it’s not art.

    Of course, we all know the case is really about everyone getting their money. Funny how the smaller (and poorer) the artist, the less they complain about sampling. I’m sure Dido did not bitch when Eminem decided to steal the chorus from Thank You.

  2. Scott Says:

    Same old story (a)greed — honestly, the main reason I linked to the story is that the image of a lawyer standing up in court and saying something like “Your Honor, Bridgeport and Westbound agree, Get Off Your Ass and Jam was illegally pilpha’d by I Got the Hook Up,” just amuses me no end.

  3. Scott Says:

    A link in a comment on Lessig’s blog points to this collection of Illegal Music.

  4. Dirk Scheuring Says:

    Unfortunately, this is not quite the “same old story”, and also, it’s not an instance of “some big artist complaining”. George Clinton, who gets writer’s credits for “Get Off Your Ass And Jam” on the 1975 Funkadelic LP “Let’s Take It To The Stage”, has often gone on the record in favor of sampling. He’s generally regarded as the songwriter most often sampled by Hip Hop producers, not only because of all the funk he’s got, but also because his attitude is like: “Make your record, and pay me if you land a hit”. He’s even released a couple of albums entitled “Sample Some of Dis” and “Sample Some of Dat”. I’ve never heard of him having any beef with other artists about sample clearance.

    However, he often did have major beef with his record labels, which he accused of constantly coming up with novel ways of ripping off artists. And regarding this claim, the behavior of Westbound Records – the label which released “Let’s Take It To The Stage” and pursued the above-mentioned lawsuit – could serve as a case in point.

    The case is peculiar: for starters, it’s not about the protection of the composition (iow it’s not at all about money which would end up with Clinton as the writer of the song), but about the protection of the sound recording. Specifically, it’s about a two-second, three-note guitar lick played by Funkadelic guitarist Garry Shider all those years ago. It’s not the hook of the song, not a well-known chorus or any other “memorable moment” that a lot of people would recognize, and that could be argued to be the cause for a record to sell a lot of copies. It’s just a little bit of a funky sound, which Hip Hop producer Dr.Dre pitched down and hooked up for 16 beats and mixed into the track of “100 Miles And Runnin'”, a record released by the Compton Hip Hop group N.W.A. in 1990.

    Now, it’s long been understood by Hip Hop producers that you can’t jock an easily recognizable two-bar chorus or some other passage that “carries” a song as a beat for some rap track without licensing it. But nicking particular – and usually quite obscure – sounds, detuning, mixing and combining them and making them into new, never-heard-before beats has always been regarded not only as safe in terms of lawsuit potential, but also as proper artistic behavior. N.W.A.s original label, Ruthless, sold half a million copies of “100 Miles” in 1990, and until recently, only the nerdiest of music experts were ever interested in figuring out where Dre’s got that little guitar lick from.

    This has changed now, and in Hip Hop, this makes for major news. It means that the rules that govern the art have been changed, and that none of the artists involved had any say in this – the control over the sounds is fully – and, as by the rule of court, even “rightfully” – claimed by Sir Nose D’voidofunk.

    I think it’s about time for creative people to figure out how to keep that which they once created.

  5. Scott Says:

    Thanks for the excellent observations. Amen, and thanks for the clarifying background. One of the saving graces of working in a relatively esoteric (and essentially profit-free) form like electronic literature is that I can happily give it away from Day 1 on the Web, and reserve the rights I want to reserve at the same time. I’m all for artists making interested choices in the disposition of their work. And I think your observation that this changes the rules that govern the art is an important one. If every sample in every hip hop song needs to be licensed, how long will it take for the whole genre to unfurl into a huge mess of endless litigation — with companies suing other companies for samples from songs which are built on samples from other songs. And yeah, most of the artists are out of loops on this altogether. It’s primarily a battle between corporations who’ve already bought the rights (usually cheaply). At any rate, the sampling question is sure to keep a lot of lawyers fed for years to come, even if it won’t line the coffers of many artists. The fact that so many people are going the Creative Commons route is one promising sign that at least some art is finding its way out of an increasingly constrictive copyright system.

    Of course, this doesn’t change the fact that the mix of high serious legalese and funkhop vernacular is linguistically delicious. If he were alive today, William Gaddis, author of A Frolic of His Own, would love it.

  6. mark Says:

    I’m not sure the law has really changed here—it’s always been assumed by most of the sampling crowd that sampling without paying is illegal, as absurd as it sounds. There’s probably been a million Slashdot stories on this topic, and there are rulings dating back decades that even “stealing” an unimportant and small piece of a song is illegal (here’s an article discussing such a ruling from 1991:

    In any case, I know some people in industrial music who do lots of it without paying, and they do lots of detuning and mixing and general mangling of their samples not because they think it makes it legal, but because it makes them hard to sue: you can’t sue them if you don’t know where it came from, and it’s quite possible to mangle things enough so that their origin is nigh-impossible to discern (and even harder to prove). Of course, in industrial music having the samples mangled into odd unrecognizable noise is also often positive aesthetically; this might not be the case in hip-hop.

  7. Dirk Scheuring Says:

    You’re right, mark, the law hasn’t changed, but the – unwritten – rule after which it was at least implied that the law wouldn’t be enforced in certain cases has. And the force behind the change are not the people who actually created the sounds, but those who – for whatever reason – are supported by the courts in their claims that they “own” the recording masters. Too me, the effect of this development is similar to what we see in the computer software world, where it’s also not the folks who actually wrote the code for Unix who create problems for the Linux users, but those who reportedly never created anything but problems in their lifetime.
    To me, the questions that arise are pretty deep: like, are there any ways for creators to control the destiny of their creations? Using the Creative Commons, not selling but licensing your masters/publishing rights, negotiating from artist to artist are valid (partial) answers, but many creative people are young, inexperienced and/or under severe economic pressure, and educating them about those issues can be difficult, even if they happen to meet somebody who cares that they know about them. Even the lack of economic value of a product/piece of art might be temporal, Scott: Vincent van Gogh couldn’t sell his “Sunflowers”, either. And 20 years ago, the Parliament/Funkadelic back catalogue was pretty much worthless – and then, a budding Hip Hop producer named Marley Marl tried to sample a single snare sound, accidentally created (and then used) the first drum loop, and changed the world for everybody.

  8. josh g. Says:

    Wow, the more I read this legal proceeding, the more my head spins.

    For the sound recording copyright holder, it is not the “song” but the sounds that are fixed in the medium of his choice. When those sounds are sampled they are taken directly from that fixed medium. It is a physical taking rather than an intellectual one.

    So just to keep it straight, this is using intellectual property laws to prevent a physical theft – right? Huh?

    Finally, and unfortunately, there is no Rosetta stone for the interpretation of the copyright statute. We have taken a “literal reading” approach. The legislative history is of little help because digital sampling wasn’t being done in 1971.

    Yikes. Everything I’ve ever been taught on IP law says that there have never been absolutes, there never should be, and that ignoring past legislative history is completely absurd. Who are these people?

    I’m not positive yet, but I suspect that this ruling does actually change the legal situation. Prior to this, sampling was purely a matter of the civil court, where the copyright holder must file a lawsuit against infringers in order to protect their rights. Slapping the “piracy” label on things has the possibility of drawing existing anti-software-piracy criminal law into the mix, which is a related but fundamentally different animal. I’m not certain that’s the case, but I don’t have time to keep reading this legal insanity right now.

  9. josh g. Says:

    Now that I think about it, I’m not sure why I thought software piracy law. The more obvious consequence is that this draws sampling directly into the line of fire of the DMCA. (As far as I know, this wasn’t really the case before, but perhaps I’m mistaken.)

    But for the purposes of keeping things in perspective, I will stop pondering the legal weirdness, and get back to the silly linguistics with a quote.

    Specifically, Bridgeport claims 37% interest in the composition “How Ya Do Dat” (“How Ya”) under a Release and Agreement dated October 21, 1998, that granted permission to use a sample from the composition “One of Those Funky Things” in “How Ya.”

  10. PeterALopez Says:

    It has not been determined if the “sounds” which were labeled “Illegal Music” in a previous post are as they appear to not be, duh?!
    %20 Introduces Senator Orrin Hatch to Overpeer

    Corporate Shill, Consumer Whore & part time music fan

  11. Scott Says:

    %20 — No argument whatsoever — that’s pretty much the point, no?

  12. Sean Barrett Says:

    I’m not sure Dirk’s claim that the unwritten rule has changed (that even obscure little samples now need clearance) is true; at least
    in this interview with Chuck D and Hank Shocklee they say they had to change Public Enemy’s sound around 1990 (they even explicitly mention Bridgeport) away from their prior use of lots of little samples in collage:

    Chuck D: Putting a hundred small fragments into a song meant that you had a hundred different people to answer to. Whereas someone like EPMD might have taken an entire loop and stuck with it, which meant that they only had to pay one artist.

    Regardless, the interview is quite worth reading as a general discussion of these issues.

  13. Dirk Scheuring Says:

    Yo, Sean Barret, after checking out who you are, I’d like to put it this way: let’s say you wrote somewhere that something has changed in C++ programming, and I doubted that your claim was true, based on an interview with Bjarne Stroustrup that I once read. How serious would you take that?

    PE/Bomb Squad in 1990 were a very high profile, highly political affair, and it may well be that they felt under pressure to pay for samples they hadn’t paid for before. It might well be noted, though, that the Bomb Squad did not enjoy a whole lot of hit records after they changed their sampling strategy. There might be a connection.

    Anyway, who gets paid what, and by whom, and when, and why, is always a pretty complex issue when it comes to Hip Hop. However, although I’m sort of retired these days, what I can say is that the majority of Hip Hop producers that I came to know in 20+ years as a journalist, DJ, and producer in this particular business sure enough did not pay for most of the sounds they used to make beats with. Otherwise, we wouldn’t even be discussing a lawsuit about a sample used in 1990, would we? And it’s not a singular lawsuit, either; it’s one of at least 800 lawsuits for nearly 500 copyright infringement claims for unauthorized sampling that were all started simultaneously in Nashville in May 2001. If you really doubt that things have changed since PE were at their heights, then please explain to us how this fits into your picture.

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