A Sample of Fair Use

Music sampling has been, and is, a critical fixture and feature of hip-hop. Hip-hop is an amalgamation of music, music mixing, dance, graphic art, and a specific clothing aesthetic. Lovers of hip-hop music and copyright have followed and studied the impact of copyright law on the genre, particularly how hip-hop musical artists (MCs) have engaged fair use.

Image by Benjamin Wiens from Pixabay 
Image by Benjamin Wiens from Pixabay

The Mixtape

Fair use, as stated in U.S. Copyright Law, 17 USC Section 107, is not an infringement of copyright, even if the use utilizes any of the exclusive rights of the copyright holder (as outlined in section 106 of U.S. Copyright Law). Fair use requires a four-part analysis: purpose of the use, nature of the work, amount used, and potential market harm. Section 107 mentions potential uses including: criticism, news reporting, teaching (including multiple copies for classroom use), scholarship, and research purposes.

Fair use is not limited to the specific listed categories. What is or is not definitively fair use, is decided by the courts. However, with notable exceptions, only a handful of cases around hip-hop music have been litigated and reached a fair use determination[1] (most disputes end before litigation commences or settle while winding through the courts). The most famous hip-hop case to reach the Supreme Court is Campbell v. Acuff-Rose Music, Inc., this case introduced “transformativeness” as a consideration in the first fair use factor: purpose. Miami-based hip-hop group 2 Live Crew sought a license to sample Roy Orbison’s Oh, Pretty Woman. The license was denied, but 2 Live Crew used the sample anyway, the rights holders for the original song sued. The case made its way to the high court that determined the use was parody that transformed the original, the amount used was necessary for the purpose of satire, and that the musical works had two different audiences, limiting market harm.


Most certainly two different audiences.

In creative fields, artists borrow from and are inspired by each other as a regular part of the artistic process.  If you are familiar with hip-hop music, you know that one of the foundational elements of the genre, which began in the 1970s, is sampling music from other genres, contemporary, and older music. Sampling of older music is often meant to allow listeners to reminisce, conjure historical references, or sometimes to satirize the music of older generations. Hip-hop began with extremely talented young people from marginalized, African-American, and Latino communities who could not afford to license music used in their unique creations. These MCs often used other music as backing tracks, background music to showcase their rapping skills. Mixtapes (actual tapes, remember those?) were created and distributed and used to fuel the culture. This creative and innovative musical form was the underlying beat for MC battles, breakdancing, and hip-hop nightclubs.

 Funky Stuff by antony_mayfield is licensed under CC BY 2.0 license.
Funky Stuff by antony_mayfield is licensed under CC BY 2.0 license.

Some hip-hop artists, working with DJs and producers, would cobble different elements of multiple songs[2] to create the music underneath their rhymes and rhythms. The mixes and samples were innovative and the rhymes clever. This work helped build the genre through the 70s and well into the 90s (though rapping and hip-hop still exists, most would consider the mid-80s to around the mid-90s the golden age of this genre). Theoretically, many of these MCs should have been able to rely on fair use. Fair use is case specific, so it is difficult to generalize, but:

  1. Purpose: the use of the music was to provide backing tracks to rap, poems, and lyrics. Some uses were satirical. Some music was made available for free, but there were certainly commercial benefits.
  2. Nature: the underlying music was typically highly creative, published works.
  3. Amount: depending on the artist, as little as one second from multiple songs or an entire song could be used to fulfil the purpose
  4. Market: In most instances, as the court found in Campbell, the audiences for the new work and the original were not the same.

During the early years of hip-hop, the music moved from underground clubs and parties to the radio. As hip-hop music matured, more attention began to be paid to the third-party music samples included in the songs. The original music artists and record labels saw the lucrative nature of hip-hop in the resurgence of interest in their music. Increased interest was not enough though, the original artists and their labels sought compensation for the use of their music. As time passed and the genre grew, artists could afford to pay for and make original music but sampling remained a part of the culture.  The record labels representing hip-hop artists started requiring any samples be cleared before an album could be released to lower the risk of an infringement lawsuit against the record label. As a result, some artists resorted to releasing two versions, one commercial and one as a “bootleg” containing samples that could not be cleared. Other artists opted to release only music with original music or cleared samples.[3] Approaches to clearing music rights differed among hip-hop pioneers. Some consistently cleared rights,[4] some felt their use was transformative, and still others fell somewhere in between clearing some music and continuing to explore using music that had not been (or could not be) cleared or clearing rights after production.

The Remix

There is no dispute that copyright law impacted how hip-hop evolved as a musical genre. Litigation and threats of litigation stopped artists from sampling music that would have created transformative music.[5]  As hip-hop continued in the 90s, the desire to find songs that cleverly backed up the artist was still an important element of the culture. The commercial success of hip-hop made way for artists, producers, and DJs that had become successful enough to buy licenses to use samples. It eventually became part of the bravado of the time to brag about spending large sums of money to license music for sampling and remixing hip-hop music. The bragging was meant to show how powerful and prosperous some artists had become. But not all artists could afford to pay what, at times, could be exorbitant prices to include even relatively short samples of music. Sampling still occurs, but for represented artists, clearing the music is the only way to release music risk-free.  In the digital age, some artists release uncleared music for free on a variety of websites, allowing innovation in music to remain.

Mashup v. Sampling

As hip-hop artists shied away from commercially releasing music with uncleared samples, the “mashup” developed. Mashups involve combining at least two songs into new music. Vocal tracks may also be overlayed over the works. While mainly hip-hop artists could not get away with unauthorized sampling, mash-up producers, DJs[6], and artists do not seem to have the same troubles. Dr. Mel Stanfill, during the 2019 Race + IP Conference, pondered the different reactions to sampling versus mashups. Sampling at its height was done mostly by marginalized hip-hop artists and in at least one case, sampling has been referred to as theft.[7] While mashup artists have yet to face challenges in court, the music seems to proceed without the response hip-hop artists faced. In fact, some mashup artists openly discuss their reliance on fair use to create their works. As MCs did (and do), mashup artists often release music for free online, without clearing rights, but many travel the world and fill concerts playing this uncleared music. The treatment of mashup DJs and hip-hop artists is noticeably different. It is difficult to determine whether the distinctions are due to the times, whether we have evolved into a culture of sharing, or whether the difference is in who does/did the sampling versus who is making mashups.

Who’s Got Next?

There may be some who say every artist, hip-hop and mashup artists included, should be required to license music, but this negates fair use which is a right available to everyone. That Campbell is the only case, seminal though it is, to address hip-hop and sampling to reach the Supreme Court is a shame. That many artists rarely, if ever, raise fair use when litigation happens or is threatened is concerning and frustrating.

As discussed on this Public Domain Day blog, Professor Kevin Greene suggests ways to help hip-hop artists. The pioneers of hip-hop need to be informed and educated that they may soon be able to exercise their rights under termination of transfer which allows artists and their estates to end what might have been predatory copyright transfer contracts and regain their copyright. Helping artists in this way could address the past stifling of their creative works during the golden age of hip-hop.

It is possible that the disparate treatment of mashup and hip-hop artists is due to the passage of time and changing attitudes about music and sharing. If this is the case, then hip-hop artists should be able to avoid the expensive licensing schemes that hinder creativity and innovation in the genre. Mashup artists seemingly rely heavily on fair use without challenge from the recording industry. The argument is not that they should receive the same treatment as hip-hop artists of the past (and present). The argument is that both types of works be treated as transformative works under fair use.  Hip-hop artists should be allowed to rely on fair use as means to spur creativity and innovation in hip-hip without fear of litigation.

Recommended Resources:

COPYRIGHT CRIMINALS | Documentary Film | Independent Lens | PBS. https://www.pbs.org/independentlens/copyright-criminals/. Accessed 24 Feb. 2021.

Discover Music via Samples, Cover Songs and Remixes | WhoSampled. https://www.whosampled.com/. Accessed 24 Feb. 2021.

“More Than A Sample: 30 Years of Public Enemy’s It Takes A Nation Of Millions To Hold Us Back.” Mixdownmag, 27 Apr. 2018, https://mixdownmag.com.au/features/columns/more-than-a-sample-30-years-of-public-enemys-it-takes-a-nation-of-millions-to-hold-us-back/. Accessed 24 Feb. 2021.

Note. Not in Court ‘Cause I Stole a Beat: the Digital Music Sampling Debate’s Discourse on Race and Culture, and the Need for Test Case Litigation. University of Illinois Journal of Law, Technology and Policy 141, 2012. http://illinoisjltp.com/journal/wp-content/uploads/2013/10/Cox.pdf.  Accessed 24 Feb. 2021.

_________________________

[1] Hip-hop artists did not invoke fair use as often as they should have.  Falzone, Anthony. “Why Hasn’t Diddy Tried to Save Music Sampling?” Slate Magazine, 1 Nov. 2007, https://slate.com/news-and-politics/2007/11/why-hasn-t-diddy-tried-to-save-music-sampling.html.

[2] Using elements from thousands of songs was the signature style of Public Enemy. McLeod, Kembrew. “How Copyright Law Changed Hip Hop: An Interview with Public Enemy’s Chuck D and Hank Shocklee.” Little Village, 17 Oct. 2011, https://littlevillagemag.com/how-copyright-law-changed-hip-hop-an-interview-with-public-enemys-chuck-d-and-hank-shocklee/.

[3] Biz Markie, a few years after being ordered to pay damages to Gilbert O’Sullivan in Grand Upright Music, Ltd v. Warner Bros. Records Inc., for the unauthorized sampling O’Sullivan’s song “Alone Again (Naturally)”, released an album titled All Samples Cleared.

[4] The Beastie Boys began clearing rights after releasing Paul’s Boutique, which contained samples they did not or could not clear.  Coleman, Jonny. “Meet The Woman Who Helps The Beastie Boys, Beck And The Avalanches Clear Their Samples.” LAist, https://laist.com/2016/10/19/pat_shannahan_detective_sampling_interview.php. Accessed 23 Feb. 2021.

[5] In Grand Upright Music, Ltd v. Warner Bros. Records Inc., the court ruling changed hip hop music, requiring that future music sampling be approved by the original rights holders. This was limited to the Southern District of NY, but the impact reverberated throughout the industry.

[6] Artists like Girl Talk and Danger Mouse among many others.

[7] In Grand Upright Music, the court stated the biblical verse “Thou Shall Not Steal” and ruled that sampling without permission constitutes copyright infringement.

By Sandra Aya Enimil, Copyright Librarian and Contracting Specialist, Yale Library

The information presented on the Conversations on Copyright blog is intended for educational and informational purposes only and should not be construed as legal advice. The Copyright Librarian and Contracting Specialist does not act as legal counsel to the university or any members of the university community.

In recognition of Fair Use Week, this blog is cross posted on the Copyright at Harvard Library Blog –  http://blogs.harvard.edu/copyrightosc/

Fair Use Week 2021

It’s FAIR UFair Use Week logoSE WEEK! Please check out this website for fair use activities beyond Yale.

Fair Use/Fair Dealing Week 2021—a celebration coordinated by the Association of Research Libraries—is taking place February 22–26, 2021.

See below for Fair Use Week Activities at Yale Library:

Walking Through Fair Use
Workshop
Tuesday, February 23, 2021, 3-4:20PM

A Sample of Fair Use
Blog
Wednesday, February 24, 2021, 10:00AM

Fair Use Week Tea & Coffee Break
Coffee/Tea Break
Thursday, February 25, 2021, 2:30-3:30PM

Please contact copyright.librarian@yale.edu for further information.

The Promise of the Public Domain

Today is Public Domain Day! January 1st is Public Domain Day in the United States. This year, materials published in the U.S. in 1925 are now in the public domain.

The public domain is an integral part of how copyright functions in the U.S. The Constitution states:

The congress shall have the power … to promote the progress of science and useful Arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

U.S. copyright law seeks to balance the rights of users and creators of content. Authors and creators of copyrighted materials are given certain protections and benefits for their creative works for a limited time. After this period ends, then the rest of society can make use of the works in the public domain. The public domain is different from other allowances (fair use, teaching exemptions, etc.) for users of copyrighted materials. Once a work is in the public domain, it can be used freely, without restrictions. The free use of works, which is the promise of the public domain, is intended to inspire the creation of new copyrightable works.

Materials in the United States fall into the public domain every day due to a failure to follow the necessary formalities or requirements. Some formalities changed over time, so other materials fell into the public domain as a result of those changes. Some creators put work into the public domain voluntarily. This day marks when content falls into the public domain due to the expiration of copyright term. The commemoration of this day is particularly important because, as Jennifer Jenkins of the Center for the Study of the Public Domain points out, content from 1925 should have gone into the public domain in 2001, after a copyright term of 75 years. But, in 1998, the U.S. Congress hit a 20-year pause button and extended the copyright term to 95 years, so these materials didn’t start entering the public domain due to expiration until 2019.

Many institutions like the HathiTrust and New York Public Library, have done difficult and extensive research to determine what works in their collections are in the public domain. The Center for the Study of the Public Domain, Internet Archive and other institutions provide information on content that will enter the public domain in the U.S. every year. This year works by Cora “Lovie” Austin, Buster Keaton, Agatha Christie and many others will go into the public domain. Lovie Austin’s Jealous Hearted Blues was recorded by the famous blues singer, Ma Rainey (subject of a 2020 Netflix film, based on a play by August Wilson). Ma Rainey, and other performers of the era, wrote, performed, and recorded many albums and received only a fraction of the profits of the sales of those recordings. With Jealous Hearted Blues, Rainey could not secure copyright in what Rainey added to the composition and sound recording (neither of which Rainey had rights in), which is the performance (performance is one of the exclusive rights reserved for the rights holder) of the song. Even in an instance where an artist did hold copyright, record labels and recording studios often took advantage of musicians and performers. Rainey was savvy, and while she was keenly aware of the money she could have been making in the recording studio, she sacrificed that money for the money she could make for herself on tours. Still, what if she had been paid what she was due? What if her performance of a work entitled her to a copyright? What if she received full benefits of the copyrights she did own? It is too late for performers like Ma Rainey, but as copyright term continues to expire on the content they made famous, is there a way the public domain can help artists and musicians? Can anything be done to change what happened in the past?

During the lively (virtual) Internet Archive celebration of the public domain,  two scholars invested in social justice and greater protections for artists from marginalized backgrounds offered some thoughts on what could be considered justice in copyright. Lateef Mtima, professor of law at Howard University School of Law, and founder and director of the Institute for Intellectual Property and Social Justice and Kevin Greene, chair and professor at Southwestern Law School in Los Angeles discussed that wrongs from the past cannot be changed, but they should be discussed and explained with context. Professor Greene commented about ways to help today’s musicians, particularly African-American and Latino hip-hop artists. Greene explained that this genre of artists has pioneering performers and musicians who likely need to be informed of their rights under the termination of transfer provision of U.S. copyright law. Termination of transfer allows artists and their estates to end what might have been predatory copyright transfer contracts and regain their copyright. Greene posited that helping artists navigate this provision could be a way to mitigate the wrongs of the past. Professor Mtima suggested closing the digital divide for equitable access to the Internet and making the items in the public domain as widely and openly available as possible. Mtima noted that the public domain’s purpose in the generation of creativity can be fulfilled and used to address and correct injustice by making sure new and upcoming artists can access and be inspired by art and music from the past.

There is a wealth of public domain content available in cultural heritage institutions and libraries across the U.S.  Many institutions, including Yale, are finding ways to research and liberate their public domain content.  Unveiling this information will provide  tremendous contributions to the public domain. It will go a long way to help current and future artists spur creativity, creative inquiry, and innovation, thus fulfilling the promise of the public domain.

Image collage of works that are in the public domain as of 2021

Center for the Study of the Public Domain https://web.law.duke.edu/cspd/publicdomainday/2021/

By Sandra Aya Enimil, Copyright Librarian and Contracting Specialist, Yale Library

The information presented on the Conversations on Copyright blog is intended for educational and informational purposes only and should not be construed as legal advice. The Copyright Librarian and Contracting Specialist does not act as legal counsel to the university or any members of the university community.

Recommendations for Faculty/Instructors Regarding Spring Course Materials

Yale Library has several recommendations for faculty as they prepare for Spring term. High among them is that planning for courses begin as soon as possible.

Thanks to the Poorvu Center, Canvas is open for use earlier than ever before. Faculty may begin adding Spring 2021 course reserves as soon as they have access to Canvas. Through Course Reserves, instructors can utilize Library subscriptions and can request scans of limited portions of works from our physical collections.

Course Reserves will process requests whenever they are received, but to minimize the deluge of requests at the start of Spring we strongly recommend requesting items needed at the start of the term before November 30. This will allow time to source electronic items for purchase, digitize content where possible, and to find alternates if necessary. Turnaround times vary, but it can take four to six weeks to obtain some content.

To provide more equitable access for students, faculty are encouraged to use library-licensed and open-access materials whenever possible. HathiTrust’s emergency temporary access service will continue through Spring term. As happened during the Fall term due to the ongoing COVID-19 pandemic, physical reserves will not be offered in the Spring term.

Considering the inaccessibility of physical reserves, those assigning textbooks and e-books should be aware of the restrictions and limitations the Library faces in accessing and obtaining certain electronic content:

  • Many textbook publishers refuse to license e-book formats to libraries. Pearson, Cengage/Gale, McGraw Hill, Macmillan, Norton, and Oxford University Press are examples of textbook publishers whose e-books are extremely difficult to license or typically not available for libraries to purchase.
  • Many publishers of fiction and popular nonfiction will not license multiuser e-book copies to libraries, and some do not offer any e-book licensing to libraries. Penguin Random House, Hachette, HarperCollins, and Simon & Schuster are among the publishers whose books are almost impossible to license.
  • Limits on concurrent users of e-books (including those accessible via HathiTrust) constrains the library’s capacity to simultaneously serve the course needs of all students, particularly with large courses and expensive books.

While copyright and access barriers prevent the library from providing all requested course materials, library experts can help find and acquire electronic materials, or search for alternatives where necessary. The Library will make the best possible efforts to help fulfill pedagogical needs.

Subject specialists can help by:

  • Identifying materials that are available electronically
  • Identifying open educational materials
  • Suggesting alternate content

Course Reserves staff can help by:

  • Purchasing electronic content if available
  • Scanning portions of works for access through Canvas course sites
  • Providing links to books via HathiTrust’s temporary access service
  • Providing access to licensed library resources

More Information:

This document modifies and adapts content from the University of Michigan and Emory University.

By Sandra Aya Enimil, Copyright Librarian and Contracting Specialist, Yale Library

The information presented on the Conversations on Copyright blog is intended for educational and informational purposes only and should not be construed as legal advice. The Copyright Librarian and Contracting Specialist does not act as legal counsel to the university or any members of the university community.