Wednesday, September 08, 2004

no such thing as a free sample

from the US department of utter unenforceability:

today a federal appeals court ruled that musicians must pay for all samples they use no matter how fragmentary or transformative. never mind that the fair use doctrine, which has been part of copyright law pretty much since the beginning, says exactly the opposite...

by my estimation, according to this ruling, virtually every single piece of music i have created since 2000 is totally 100% illegal! (2000 marking the release of _the fezzuck_, only about half of which was illegal.) i'm an outlaw, buddy! gimme some of that illegal shit!

the heart of the case was NWA's "100 miles and runnin", which includes a pitched-down three-note guitar sample from george clinton (who else?). naturally, clinton hasn't owned his own copyrights for awhile, so he is not involved in the case. but master p & his "no limit films" division got pulled into this mess by including the song (which was many years old by that point) in the soundtrack to the film i got the hook up.

While the lower court said that the riff in Clinton's song was entitled to copyright protection, it said that, based on analyses, the sampling "did not rise to the level of legally cognizable appropriation."

"After listening to the copied segment, the sample, and both songs, the district court found that no reasonable juror, even one familiar with the works of George Clinton, would recognize the source of the sample without having been told of its source," the appeals court said in its opinion.

On Oct. 11, 2002, the lower court ruled in favor of No Limit Films on the issue of copyright ownership.

The appeals court disagreed, saying there was merit to Westbound's arguments that no copyright violation analyses should be used when "the defendant had not disputed that it digitally sampled a copyrighted sound recording."

wait, wait... if "no reasonable juror" could possibly recognize the sample without being explicitly told where it came from, then how on earth could this be enforced? how do you combat an undetectable crime? if a tree falls in the forest and nobody is there to hear it, how can you cite the tree for improper logging procedures?

the sheer ridiculousness of this, and the fact that the case was basically decided on a technicality, did not stop the appeals court from passing sweeping overbroad judgments:

"If you cannot pirate the whole sound recording, can you 'lift' or 'sample' something less than the whole? Our answer to that question is in the negative," the court said.

"Get a license or do not sample. We do not see this as stifling creativity in any significant way."

obviously this is a big blow against all appropriative artists working (or distributing) in the states. but it looks like an even bigger blow against the champions of citation. because it would seem that NWA's biggest mistake here was not in the actual sampling, but in admitting (or not denying) that they had sampled. if NWA had simply denied using the sample, the case would have gone very differently, apparently.

so the lesson here is that if you want to use unlicensed samples, never cite your sources (and it helps to make them unrecognizable). not a very good lesson, but stupid laws call for stupid countermeasures.

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