The Audio Sampling Controversy

Listening to a song in popular music, whether it is on the radio or in one’s own personal collection, one cannot help but to hear a piece of another artist’s music embedded within. This can be subtle to the point that it goes unnoticed by the average person. It could be in the vocals, a guitar lick, or something as small as the drum kick that only comes in once every 3 bars of music. But it is, in essence, a rip off of the original artist. This is called sampling. The perspective of the original artist varies case by case. Some are ok with the idea of hearing their voice or drum beat incorporated into other songs. Others are furious that their work has been copied and pasted into someone else’s work for their own benefit. The key objective behind this paper is to ask the question: When is it justifiable to sample without permission?

There is a lot of gray area to this issue. There are laws in place to help rectify the matter. But, is this enough to keep all parties happy? Even in the event that strict permission is given, there have been parties that have felt wronged. An article by Molly Mcgraw helps shed some light onto this issue. She tells the story of David Johnson and Jan Hammer. “David Earl Johnson who allowed computer-keyboardist Jan Hammer to sample his drum sounds on rare, eighty-year-old Nigerian conga drums. Later, after Johnson recognized his drum sounds running through the entire Miami Vice soundtrack, he sought payment for what he perceived to be his contribution to the composition. He was told by Hammer’s manager that he wanted ‘money for doing nothing’ and the American Federation of Musicians refused to take his case.”(1) In this case, there was arguably nothing done wrong by Hammer. He asked for permission to use Johnson’s drums sample and Johnson gave it. Johnson could have been more specific about the limit of usage of these. But even the legal system has no test case that a court can use in a copyright case. Each lawsuit must be individually decided on a case-by-case basis based on whether the sample used is original to the plaintiff. The law states that “Originality denotes only enough definite expression so that one may distinguish authorship, i.e., there must be an identifiable element of personality.”(1) So, with these safeguards in place, it makes it easier for artists to win in a lawsuit against copyright infringement. However, the problem lies in whether or not the original artist’s music can be discernable on the track. Frank Zappa was the first to fully protect a full album from copyright infringement from sampling down to the wave pattern level. It requires more effort and money to get this type of protection than what is provided at default from simply recording and distributing an album. Should the law be changed to protect the artist further by default? This issue definitely deserves some more legal attention to decide what the right decision is.

Footnotes:

  1. “SOUND SAMPLING PROTECTION AND INFRINGEMENT.” SOUND SAMPLING PROTECTION AND INFRINGEMENT. N.p., n.d. Web. 10 Apr. 2015. <http://www.law.berkeley.edu/journals/btlj/articles/vol4/McGraw/HTML/text.html&gt;.
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