2 posts categorized "Copyright Law"

April 19, 2016

Kendrick Lamar Sued for Bill Withers Sample on Mixtape; Misconceptions About Copyright and Sampling Raised

Complaint against Lamar gets it wrong. More proof that a compulsory license for sound recordings is needed.

By AMIR SAID (SA'ID)


A rapper uses a sample from a song of another artist to create a new song — said rapper places new song on their free mixtape, then gets sued for copyright infringement by the copyright owners of the song that the rapper sampled. We’ve been here before. We’ll be here again. The latest incarnation of this routine involves Kendrick Lamar and his song “I Do This,” featured on his 2009 mixtape The Kendrick Lamar EP, and the 1975 Bill Withers song “Do You Want to Stay.” “I Do This” incorporates a sample of the Withers recording, and the owners of the copyright in the music composition of the song have filed suit against Lamar, Top Dawg, WB Music Corp, and others, for copyright infringement.


Note: This latest copyright infringement suit involving sampling, an established recording artist, and a free mixtape serves as a reminder that samples used on non-commercial releases are not automatically insulated from lawsuits. What’s more interesting is what this new complaint says about copyright law and sampling, and what the trend of sample-based songs on mixtapes says about the value of the art of sampling and who it’s benefiting the most.


The Complaint

According to the complaint filed April 14, 2016 in a federal court in Los Angeles by a lawyer on behalf of Mattie Music Group dba Golden Withers Music Group and Hadley Murrell dba Musidex (the “Plaintiffs”), Kendrick Lamar, Top Dawg Music, WB Music Corp, and others (et. al) unlawfully copied, “note for note,”1 the 1975 Bill Withers song “Do You Want to Stay,” which Plaintiffs claim ownership to the copyright in the musical composition, on Lamar’s 2013 [2009] song “I Do This” (produced by Sounwave). It’s worth noting that Plaintiffs states that “Defendant Lamar, wrote and composed a musical composition entitled “I Do This” and caused phonorecords embodying a performance of “I Do This” by Defendant Lamar to be recorded and released for sale to the public in or about 2013.”2 This is important to note because the Plaintiffs do not own the copyright in the sound recording of the Bill Withers song “Do You Want to Stay.”


Plaintiffs further allege that Lamar’s composition “I Do This” consists of “nothing more than new, so-called Rap or Hip Hop lyrics, set to the existing music of ‘Don’t You Want to Stay,’” and that Defendants did not create any new music for ‘I Do This’ and Defendants did not simply ‘sample’ some of the existing music of ‘Don’t You Want to Stay.’ Rather, the music of ‘I Do This’ is a direct and complete copy of the music of ‘Don’t You Want to Stay. Defendants used the existing recorded music of ‘Don’t You Want To Stay’ and recorded the new, so-called Rap or Hip Hop lyrics, over the existing music.” Also, Plaintiffs allege that Defendants Lamar, et. al knowingly and willfully infringed the copyright of “Don’t You Want To Stay.”3


Finally, Plaintiffs assert that in May, 2013, Plaintiff Musidex sent “a notice of Copyright infringement letter to Defendant Lamar’s attorney, described the aforesaid copyright infringement and demanded that Defendant Lamar cease and desist from all exploitation of “I Do This” and provide a full accounting as to the exploitation of “I Do This.” In March, 2016, Plaintiffs maintain that Plaintiff Golden sent a similar letter to Lamar, et. al.


Breaking Down the Complaint

I’ve examined a number of copyright infringement claims involving sampling, and, as with all of them, the claims made by Mattie Music Group and Hadley Murrell represent an incomplete understanding or misrepresentation of United States copyright law, as well as a dismissive attitude towards hip hop/rap music and the art of sampling itself.


First, I’ll address the Plaintiffs’ assertion that Lamar, et. al “did not create any new music for ‘I Do This,’” and that Lamar, et. al “did not simply ‘sample’ some of the existing music of ‘Don’t You Want to Stay,’” but rather made a "complete copy of the music of ‘Don’t You Want to Stay.” Clearly, the Plaintiffs do not understand what copyright infringement is or how it’s determined in a court of law. What's at question is not whether Lamar sampled — i.e. incorporated “a direct and complete copy of the music of ‘Don’t You Want to Stay” — but rather does the sample amount to actionable copying. In other words, at issue is how much of the Withers sample was used and, more importantly, how was it used, i.e. transformed? The answer to that question, which can be determined by a judge prior to a trial jury, is not found by simply assessing if the appropriation is an exact copy of elements of the appropriated work — by default, a digital sample represents an exact or complete copy of whatever it was sampled from. Hence, both the amount used and transformation aspects of the question are determined only by examining both works as a whole. Further worth noting: When it comes to amount used, what must be looked at is how much of the appropriated work was used, not how much of it constitutes the new work — i.e. not how many times it was used or looped in the new work.


In this regard, Lamar’s “I Do This” does contain new music. Sounwave’s production includes deft drum programming, a combination of a trap sound with elements of classic electro hop. In addition to Soundwave’s beat, “I Do This” contains two separate verses by Lamar, one verse by rapper Jay Rock, and a chorus. Further, “I Do This” does not make use of a “complete” copy of Withers’s “Don’t You Want to Stay,” but rather it incorporates a sample — a roughly 8-second snippet — of the recording “Don’t You Want to Stay.” A “complete copy” of Withers’s “Don’t You Want to Stay” would mean that Lamar used “Don’t You Want to Stay” in its entirety without any transformation.


That the Plaintiffs in this case go so far as to ignore the obvious and allege that Lamar, et. al “did not simply ‘sample’” indicates their lack of understanding of what sampling is and how copyright law in the U.S. actually works. Notwithstanding the fact that digital sampling is a musical process and form of borrowing (copying) widely recognized in the courts, the Plaintiffs’ argument that Lamar, et. al’s copying is not sampling because it makes use of a “direct” copy of the sound recording (which Plaintiffs do not own) is preposterous. Moreover, the Plaintiffs in this case seem to believe that copying of any length constitutes copying in total. But that’s not how it works. As I describe in my book The Art of Sampling, not all forms of copying are actionable, i.e. illegal. Which is to say that all copyrighted material is subject to the de minimis and fair use doctrines — both doctrines speak to when and how an instance of copying is legal under the law. Though different in scope, both of these doctrines weigh the amount of copyrighted material used in coming to a determination of permissible copying. In the case of Lamar, et. al’s use of Withers’s “Don’t You Want to Stay,” the amount used is fairly insignificant, as the sample used constitutes only about 8 seconds of Withers’s 4-minute song. Moreover, “I Do This” represents a significant transformation of the Withers sample; and it’s my opinion that this transformation easily meets the fair use threshold. (Fair use, which examines four specific factors, one of which being amount used, is quite complex and often deeply misunderstood. For a solid understanding of fair use, I urge you to read The Art of Sampling.)


Next, I’ll address the Plaintiffs’ two “cease and desist” letters, what they described as “notice of Copyright infringement” letters, in which they demand “a full accounting as to the exploitation of ‘I Do This.’” A cease and desist letter is a common device copyright holders use to persuade parties, whom they believe are infringing their works, to stop. A cease and desist letter is not a notice of copyright infringement. While some appropriations (i.e. copying, borrowing) — be they in literature, music, photography, etc. — may likely be an infringement, the actual determination of copyright infringement must be made in a court of law on a case by case basis. And with regards to the Plaintiffs' demand that Lamar, et. al "provide a full accounting as to the exploitation of “I Do This,” a cease-and-desist letter — no kind of letter, save a court order — can force someone to provide such information. Thus, either the Plaintiffs knew that this was a silly over reach that no half-decent lawyer would ever fall for, or they believed that Lamar, et. al didn't have half-decent counsel.


Finally, I’ll address the Plaintiffs’ "so-called Rap or Hip Hop lyrics” description. Complaints are carefully written by lawyers who utilize words that they hope will persuade judges. And, whether intended or not, complaints often include descriptions that also reveal the biases of the people filing them. In the complaint filed against Lamar, et. al, the Plaintiffs use the “so-called Rap or Hip Hop lyrics” description twice. I believe there are only two reasons the Plaintiffs make this distinction: a) To suggest to the court that “Rap” or “Hip Hop” lyrics are an other type of lyricism, a lyricism unworthy of recognition or the respect given presumably to other forms of songwriting — a lyricism undeserving of being taken seriously as “new music”; or b) They were simply incapable of hiding their bias against “Rap” or “Hip Hop” as a legitimate music form.


Critical Observation (A): You Can Be Sued for Samples on a Free Mixtape


As I’ve pointed out before, because a mixtape is free, it does not mean that the samples on it are automatically non-infringing. So someone who makes and/or distributes a free mixtape that contains samples on it can be sued for copyright infringement. One of the most notable recent examples of this fact is the lawsuit that Lord Finesse filed against Mac Miller. The lawsuit never made it to trial — as Miller and Finesse settled out of court — but what was at dispute was Miller’s use of Lord Finesse’s instrumental track (beat), unchanged and in its entirety, from his song “Hip 2 Da Game” (1995) on Miller’s song “Kool Aid & Frozen Pizza,” off of Miller’s K.I.D.S. mixtape. Miller never said that he made the beat, nor contested that the beat was Finesse’s, but Rostrum, Miller’s label at the time, implied that the use was OK since K.I.D.S. was a free mixtape and, thus, they never profited from Finesse’s music.


Notwithstanding the fact that the free K.I.D.S. mixtape was used to help launch Mac Miller’s career (he was able to earn revenue from shows and other means), just because the unauthorized used of a copyrighted work — any copyrightable subject matter — is made free does not exclude it from copyright infringement.


But all of this said, also bear in mind that this does not necessarily mean that the filer of a copyright infringement suit will prevail in court. Miller could have taken his chances in court using the affirmative defense of fair use. There is a huge misconception in the United States that someone is guilty of something whenever someone else files a lawsuit against them. Wrong. The United States is one of the most litigious nations in the world; here, people file frivolous lawsuits all the time. For example, Jay Z was recently sued by TufAmerica for a sample that he used in his song "We Run This Town." Manhattan Federal district judge Lewis A. Kaplan dismissed the copyright infringement case brought by TufAmerica, citing: the sound “has essentially no quantitative significance” to the original composition and thus cannot be protected by copyright law.4 Many samplers would likely win in court if they choose to contest the lawsuits their hit with, but routinely, they don’t because they lack the financial and legal resources to take a case to trial, a reality that many who file lawsuits count on.


This is significant, because I Lamar actually does have the resources and, more importantly, the grounds to fight this case. If I were advising Lamar, et. al, my first move would be to file for declatory judgment and seek relief on two grounds: 1) That the Plaintiffs in this case do not own the copyright in the sound recording of the Withers song and thus lack standing; and 2) That the use is fair use.


Critical Observation (B): The Art of Sampling Continues to Be a Valuable Art Form

That Kendrick Lamar (like Mac Miller, Drake, and others) used samples on free mixtapes to help kick start their careers raises one big question: Are artists more cavalier earlier in their careers, or are they simply unaware of what copyright law actually proscribes? I believe it’s a combination of both. But what’s equally important is what this trend says about the value of the art of sampling. Very few discussions (and I’m being generous) in this space ever center around or profile how deeply valued the art of sampling is in hip hop/rap music, as the focus is always on the headline-grabbing copyright infringement lawsuit.


But the reality is, plenty of artists have turned to — and will continue to turn to — the art form and style aesthetic of sampling to kick-start their careers. This is mainly because many artists have viewed — and still view — sampling (sample-based beats) as a reliable means to flushing out their creativity. Further, plenty of artists have used sampling to form and maintain a link to (and comment on) history.


Yet, once established, many of these same artists tend to avoid sampling. Is this simply due to evolution as some (often musically pretentious) people like to suggest? I don’t think so. I believe some artists move away from sampling purely on aesthetic grounds, ie. for the purposes of expanded their musical pallets. Others do so to broaden their collaborative opportunities as well as expand the diversity of their audiences. But all recognize the serious drawbacks to sample clearance. But let’s be clear, the dislike for sample clearance does not mean that artists dislike sampling. Stated another way, I believe that if there were a more efficient, cheaper path to sample clearance, more artists would continue to make sampling a hallmark of their creativity.


Critical Observation (C): We Need a Compulsory License for Sound Recordings; and Artists Must Learn About Copyright Law, Especially De Minimis and Fair Use


Consider the compulsory license for nondramatic musical works that already exists in the United States. Under this compulsory license, which addresses the musical composition, i.e. the artist’s music in written form, individuals are permitted to make “covers” (i.e. new versions of a pre-existing sound recordings) of musical works. To take advantage of this compulsory license, all a recording artist need do is simply provide notice to the copyright holder(s) and pay a royalty, which is a fixed mechanical rate — no upfront usage fee is required. If there was a compulsory license for sampling, something in league with the compulsory license for nondramatic musical works, there would be an explosion of new sample-based music. Free from the arcane processes and restrictions of the ad-hoc sample clearance system that we have to day, artists would be able to sample from whatever song they wanted, just as artists can do full covers of whatever song they want to under the existing compulsory license for nondramatic musical works. As such, artists would be liberated to incorporate the art of sampling as they saw fit, without any sample clearance issues.


Furthermore, with a firm understanding of how copyright law works, specifically the de minimis and fair use doctrines, artists would be empowered to sample in ways that do not likely rise to actionable (i.e. illegal) copying. Thus, with a compulsory license for sound recordings in place, and solid grasp of the de minimis and fair use doctrines, I believe both existing and new artists would make sampling a hallmark of their creativity.


The music and video below is presented here for the purpose of scholarship.

Bill Withers - "Don't You Want to Stay"


Kendrick Lamar feat. Jay Rock - "I Do This" (prod. by Sounwave)


NOTES

1 Mattie Music Group et al v. Lamar et al, U.S. District Court, Central District of California, No. 16-02561.
2 id.
3 id.
4 Tufamerica, Inc. v.. WB Music Corp. et al, 1:13-cv-07874 S.D.N.Y. (2014); also see, “Judge Dismisses a Suit Over Jay Z’s ‘Run This Town,’” Joe Coscarelli, (New York Times, December 9, 2014).

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The Art of Sampling by Amir Said (Sa'id).
"The most trusted name in beatmaking."

September 04, 2015

Is EMI's Sample Amnesty a Good Thing for Sample-Based Musicians?

How Alex Black and EMI Just Became Friends of the Sample-Based Musician Community, and How they May Have Saved an Important Piece of the Music Industry’s Sample Clearance System

By AMIR SAID (SA'ID)


In September, 2015, EMI, the world’s largest music publisher, announced it’s sample amnesty program. Basically what EMI said to sample-based musicians was this: You have six months to come to us from out of the shadows and turn in your sample-based songs that utilize samples of songs from our Production Music Division’s catalog, in return we will give you a license and we won’t penalize you for unauthorized use. But here’s what EMI is certainly not saying: We recognize that some sample-based works may have made fair use (or de minimis) of our catalogs, and thus you do not necessarily need a license.


In other words, EMI’s amnesty offering, as forward thinking and innovative as it is, is a means to increase revenue form their Production Music Division catalog. First, the program allows EMI to expand their catalog with sample-based songs without having to grapple with adding sample-based songs that would otherwise be unobtainable due to either EMI’s unawareness of their existence or EMI’s unwillingness to mount a wave of copyright infringement lawsuits against musicians that they suspect have used samples from their Production Music Division’s Catalog. Second, and more importantly, EMI’s sample amnesty serves as a way to draw attention to their Production Music Division catalog and to invite sample-based musicians to sample songs from said catalog, which includes songs that they own both the master recording and composition copyrights to; a key point, since owning both rights allows EMI to easily and quickly clear samples.


In the press release that EMI’s sample amnesty program was announced, Alex Black, EMI Production Music Global Director and the main man driving the amnesty, said, “Our vision for this amnesty is to highlight the wealth of possibilities open to producers working with samples.” I take him at his word. Still, in addition to highlighting the possibilities of sampling their Production Music Division catalog, EMI is also interested in corralling perhaps a large swath of uncleared sample-based songs — songs which may have never needed to be cleared in the first place — and then monetize those “new” songs.


But, as I point in my book The Art of Sampling, all samples do not need a license (i.e. need not be cleared), because sampling itself (or all samples) does (do) not constitute copyright infringement. U.S. Copyright law explicitly protects de minimis (small amount) and fair-use usages of all copyrightable material. Thus, can encouraging someone to turn in a song that uses a single drum hit/sound, a small snippet of a sampled drum break, or an “electronic segment looped” — all staples of the art of beatmaking — be seen as EMI’s way of subverting U.S. copyright law? Most music industry lawyers promote the lie that “the law” says even a sample of a stand alone drum sound requires a license, even though some of them silently acknowledge that such usages are either de minimis or fair use. But, more importantly for their purposes, music industry lawyers also know that most people, especially sample-based musicians, are unaware of the de minimis and fair use doctrines.


There is a big difference between “the law” and how the law works. Copyright infringement must be proven in a court of law. Thus, pre-emption, not just a pre-emptive suit (for example, what Pharrell and Robin Thicke did in the “Blurred Lines” case), is often used to circumvent the law. So what do you do if you’re EMI and you want to add many sample-based songs (including those that may have made de minimis or fair use of EMI songs) to your catalog? Offer amnesty. Smart move.


By getting people to come forward and admit use, EMI gets access to the new sample-based songs, and there’s no worry of an artist claiming fair use later on. In essence, once licensed, the maker of the sample-based song has conceded that the song needed to be cleared, and has thus forfeited his right to argue that the song made fair use of a song owned by EMI. This concerns me deeply, as I wonder if de minimis and fair use — mainstays of U.S. copyright law — will continue to be overshadowed by yet another mechanism that further pushes all sampling towards the clearance trail, effectively obscuring the fact that the de mininis and fair use components of copyright law are critical safe harbors for sample-based musicians.


I applaud Alex Black and EMI for engaging with the sampling community in this way. It’s refreshing to see their support for sample-based music, particularly their description of the art of sampling in a creative context — it’s certainly a far cry from recent descriptions of sampling as “piracy”. Further, the fact that EMI will offer a licensing deal at current market rates, and that they will not, however, seek back royalties for any earnings made from songs that feature samples of their catalog is great. But if we put aside the actual implications of the amnesty itself and focus on the “license” component of EMI’s innovative initiative, there remains some serious questions that every sample-based musician considering EMI’s proposal should want to have answered.


First, how will this amnesty actually work on the publishing splits? In exchange for coming forward, will sample-based musicians simply receive a license and no penalty? Or will they also receive a split of the publishing? Better yet, will they have to forfeit 100% of the publishing to EMI? Furthermore, what will EMI’s boilerplate amnesty agreement look like? What sort of stipulations will it contain? Also, if you do come forward with a sample-based song that incorporates a sample of a song from EMI’s Production Music Division catalog, will you be required to submit the song first, offering up details on which songs from EMI’s catalog that you actually sampled? If you change your mind, EMI has the song and, because of you, they know the sample(s) used. Thus, if you disagree to the license and amnesty, does that mean you’ve now voluntarily put yourself in the position to be sued by EMI for copyright infringement?


One way to see this is: EMI has all of the leverage, all of the upside. Another way to see it is: By gaining a license, a sample-based musician now has chance to earn additional revenue by shopping the now-licensed works to artists and outlets that they previously didn’t have access to. Seems to me no matter where you come down on the copyright divide, that’s a good thing for sample-based musicians.


Any way you look at EMI’s amnesty offer, one thing is clear: This innovative program is a strong indication of where the music industry is headed with regards to sampling. The major labels and music publishers have left (and continue to leave) a lot of money on the table by treating sampling as some sort of bandit activity that requires a license in all cases; I think EMI’s move is a recognition of this fact. Moreover, I believe that Alex Black is sincere when he says that EMI’s program “aims to encourage new creative use of the expansive archives of the multiple participating EMI libraries.” But I also believe that Black is aware of the burgeoning realities of sampling and copyright law.

As more people take part in sampling in general (what Lawrence Lessig calls an ever growing “Remix Culture”), they will inevitably learn more about copyright law and aim for making works that are likely de mininis or fair use in nature. Thus, armed with a better understanding of copyright law, as well as the knowledge of recent court cases in which fair use prevailed, these sample-based musicians will be less inclined to seek licenses for their works and less intimidated by threats of lawsuits for copyright infringement. So I believe EMI’s amnesty offer — which I appreciate and support — is also the music industry’s sober acknowledgement of reality. About time.


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The Art of Sampling by Amir Said.
"The definitive guide to the art of sampling and copyright law."

Dedicated to exploring the art of beatmaking in all of its glory.

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