Joe Villa Capstone Final 2

8/7/2019 Joe Villa Capstone Final 2

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Joseph VillaDr. Drew WatersMPA47513 April 2011

Copyright law and its effects on sampling in music

Copyright - noun: the exclusive legal right to reproduce, publish, sell, or distribute the matter andform of something (as a literary, musical, or artistic work) (Merriam-Webster Dictionary)

A copyright has been an integral part of the music industry in protecting artists' works and their

financial livelihood. Copyright became a familiar term in the late 1990s during the rise in the use of

file sharing, with Napster being at the forefront. Napster became a household name in 1999, when a

college dropout Shawn Fanning created a program that allowed users to search for music on the

internet and download songs for free through other users computers (known at Peer-to-Peer sharing),

which turned into an international frenzy (Strahilevitz, 511). Record companies and artists, like

Metallica, worked to stop the service in order to protect their royalties. After much litigation and much

more impending, Napster ceased to be the free program it once was, and is now a fee-based service,

similar to the now popular Rhapsody, in order to become a more copyright-friendly service. This

battle proved that artists are still able to gain their royalties lost from people, the average listeners, who

stole their music. But what parts of copyright law protects the artists' work from other artists? The

idea of using someone else's work without giving them credit isn't new, like Led Zeppelin using parts

from Willie Dixon compositions (McLeod, 33). But something new has come has come into the picture

within the last two decades, the art of sampling. But if an artist wants to be able to sample something,

they have to deal with something known as copyright.

Copyright is the idea that a person's work is protected under law from infringement by others,

and gives the artist sole ownership, or partial depending on contracts and agreements. If another person

wants to use anothers work for whatever purpose, using a song in a movie or commercial for example,

they need to get the copyright owners permission to do so (Elias, 66). This is to ensure the owner

acquires the proper amount of royalties tied to that piece of work, if money is involved in the


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transaction.

Not just anything is copyrightable; there are certain rules in place to what a person can

copyright. There are three criteria that must be met before a copyright can be issued. The first

requirement is that the work must be original; there should be no elements in the work that are

borrowed from another piece of work. Next, the piece must be in a tangible medium of expression.

This means that the work must be in a form that can be replicated, as in paper, audio or video tape/disc,

a computer disk, on clay or canvas (Elias, 66). A thought cannot be copyrighted since it is not

something a person can see or hear. The U.S. Copyright Act of 1976 defines a sound recording as:

Works that result from the fixation of a series of musical, spoken, or other sounds, butnot including the sounds accompanying a motion picture or other audiovisual work, regardlessof the nature of the material object, such as disks, tapes, or other phonorecords, in which theyare embodied (Krasilovsky, 71. Section 101 of Copyright Act).

The last criterion for a copyright is that it must contain some form of creativity. It has to hold

more creativity than the white pages in the phone book. The white pages are the listing of phone

numbers of individuals, and are sequenced in alphabetic order from A to Z. As one can tell, it does not

take much thought to arrange a series of phone numbers by the owner's last name. If however, only a

certain number of numbers were listed and in a list that categorized them specially, and that it took

some time to produce a product, then it can be considered for a copyright. (Elias, 66).

Though what isn't copyrightable is a chord progression, as that is a common idea in music. You

can copyright the performance (with a recording) of the progression, provided it is your own recording

and not another artists. If chord progressions were copyrightable, the amount of music being released

would drop to near zero, due to the fact that many songs share similar chord progressions, across all

varieties of music. What is copyrightable is the melody of the song. While an artist may own the rights

to the song, there are other rights he/she may give to other parties.


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To own a copyright is to own the rights to a song, album, piece of art, etc. The general rule of

ownership is whoever creates the piece of work, is the owner of said work. There are exceptions to

this rule, if the work was created for a contract or an employer, or if the original owner decides to sell

or transfer rights to a new owner. A copyright is actually a set of sub rights, including: reproduction,

display or performance, distribution, and adaptations. When a copyright owner wishes to commercially

exploit the work covered by the copyright, the owner typically transfers one or more of these right to

the publisher or entity who will be responsible for getting the work to market (Elias, 69). Under the

U.S. Copyright Act of 1976, there are several rights given the copyright holder. There is the

reproduction right (the ability to make copies of the work), the distribution right (selling said copies),

the right to create adaptations (being able to make derivative works from the original material), and

performance rights (the right to perform the work in public) (Elias, 69). The copyright owner can pick

and choose which rights he or she wants to transfer to another party, in order to achieve the best result

for themselves or both parties.

The copyrighting process itself is relatively simple. To be able to get a piece of registered for a

copyright, an artist must submit the best copy of the work to the Registrar of Copyright (note: this is

relevant for the United States. Other countries have their own ways of registering) (Krasilovsky, 74).

Along with the copies and fee, the artist submits a few forms. One of the main reasons for registering

is that an artist can have an easier time claiming infringement against someone.

One of the main goals of a copyright is to protect the original artists work from others that

want to make gains off of others work. Prior to 1909, there was no protection for artists works, as

copyright did not exist. Anyone could take songs and cover them without giving credit to the original

authors. This allows the artist to have creative control on who can use their work for commercial gain,

and by making deals with other people, groups, or companies, in order to enhance the gains of both

parties, unless a deal is struck where the copyright is entirely handed over to a new party. One of those

deals is with sampling an artists work, but first what is sampling?


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Sampling is the process of dubbing portions of previously recorded music into new recordings

(Krasilovsky, 77). The easier way of saying it is to take a clip of music, or other sounds, and to use it

in another piece of music. Sampling can be heard as far back as the 1940s, when Musique Concrete

was beginning. Musique Concrete is a genre of music developed by Pierre Schaeffer and Pierre

Henry in France, with using found sounds in nature. By sampling those sounds and altering them

(subtly or drastically), they were able to create abstract works of art using a collage of sound (Barnet,

74). Now it has moved onto using clips from artists of the past, and giving them new life in a remix or

a brand new song.

Sampling can be done in many ways. One common way of doing so is to take an audio file,

song, etc., and place it within a Digital Audio Workstation (or DAW), and isolate the desired clip.

Another way is to place it within a piece of hardware, like the Akai MPC5000. The Akai MPC5000

(MPC is short for Music Production Center, originally MIDI Production Center) is the flagship product

from Akai. It is a combination of a drum machine, sampler, synthesizer, and eight track recording unit.

Users can use the samples provided in the unit, or they can upload their own samples and edit them

(Akai). The MPC is not just meant for the studio, since many artists can be seen using it or other

variations of the hardware live on stage.

The samples selected can altered in any way the sampling artist chooses, to use the clip as is or

to make it complete unrecognizable within the new work. In the days of Musique Concrete, artists

simply recorded the sounds they found in nature using a microphone, and altered the sounds through

the use of delays, reverbs, filters, and direct splicing of the sounds on tape. Now sampling encompasses

almost all genres of music, from pop music, electronic music, and even heavy metal. Graf Orlock, a

grindcore band from Los Angeles, California, is famed for using movie clips in their work, including

Terminator, heard in the song Run Over by a Truck.

Within the electronic music culture, many producers rely on the use of samples, from drums to

sound effect samples, to create tracks. Many use melodies from popular songs, past and current,


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replicating the lines themselves on different instruments, or actually sampling from the works

themselves. Some examples include British based electro-house duo, Twocker (which consists of Will

Bailey and Alex Calver, both of which assume various aliases), and their rendition of Reel 2 Reals I

Like to Move it,, using actual clips from the song, and Evol Intents dubstep remix of Latin-American

rapper Pitbull, I Know You Want Me (Calle Ocho), and its use of samples from the original version

of the song. These are just a small sample of the many remixes that have been popular over the years.

One group that helped bring out the art of sampling is the American rap group, Public Enemy.

Public Enemy was formed in the 1980s with Carlton Ridenhour (better known as Chuck D) and

William Drayton Jr. (the jestering Flavor Flav) in Long Island, New York. They got their first break

after releasing a tape for the local radio station, WBAU, which lead to them being signed to the famous

hip-hop record label, Def Jam Recordings, and working with producer, Rick Rubin. Chuck Ds

politicized lyrics were counteracted by Flavor Flavs emceeing and his antics onstage. Their early

albums from the late 1980s and early 1990s provided an aural assault of samples, layered with the

groups lyrics of white supremacy, capitalism, the music industry, black nationalism, and pop culture,

(Mcleod, 66). They even satirize the copyright process in the song, Caught, Can I Get a Witness? off

the albumIt Takes A Nation of Millions To Hold Us Back(released in 1988), with the lyric, Caught,

now in court cause I stole a beat, This is a sampling sport. The albumsIt Takes a Nation, andFear of

a Black Planet(released 1990) showcased the groups virtuosity in the world of sampling, nearly every

track has at least five to six different samples, from speeches (heard in the introduction of Night of the

Living Baseheads off ofIt Takes a Nation), radio interviews (the basis of the track Incident at

66.6FM fromFear of a Black Planet), sampling funk tunes on nearly every song, and even sampling

themselves (heard in Party for Your Right to Fight off ofIt Takes a Nation, sampling Flavor Flavs

vocals from Terminator X Speaks With His Hands from Yo! Bum Rush the Show).

Those two albums brought forth a new level of sampling that we have not seen since. In the

year 1991, the rules changed as to how people are able to sample music. Copyright licenses were being


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enforced to a point whereIt Takes a Nation of Millions to Hold Us BackandFear of a Black Planet

would become financially and legally impossible to produce, as license fees would not allow many of

those samples to be on the album (Mcleod, 68). Their next album, Apocalypse 91: The Enemy Strikes

Back(released in 1991), would be less diverse as the group was mostly relegated to using actual

musicians, as the amount of samples used in the album would be miniscule compared to the previous

two albums. By the album Muse Sick-n-Hour Mess Age (released in 1994), the decline of the use of

samples in Public Enemys tracks is apparent. The fear of litigation and increasing enforcement of

copyright licensing began taking its toll on the groups work on being one of the pioneers in sampling

in the hip-hop and rap community. Even though they had the backing of a large record label, the labels

themselves did not want to pay the increasingly exorbitant fees that would cut into studio costs. The

groups manager, Walter Leaphard, said in an interview that the group is still fighting lawsuits and

cease-and-desist letters tied to the earlier albums, likeIt Takes a Nation of Millions to Hold Us Back.

The group now claims that From now on, no samples (Demers, 119).

The group has also spoken vocally about the matter using their music. On the album It Takes a

Nation of Millions to Hold Us Back, the track Caught, Can We Get A Witness? the group lambasts

the courts for all the litigation of sampled material. Mail from the courts and jail, Claims I stole the

beats that I rail... I found this mineral that I call a beat, I paid zero. Though their encounters with the

legal system have been minimal, when compared to other artists, theyve still continued to create music

with samples (but not as vibrant as their early work).

Over the course of the 1980s and 1990s, several court cases were fought over the use of

samples and their infringement against the copyright owner. These cases challenged the use of

sampling as a legitimate art form, due to its tendency to borrow material from other artists, from

chords and drum beats from a song, to movie clips, and even interview clips. Many of the earlier cases

never made it to the courts or were settled outside the courtroom; leaving what sampling is allowed to

do legally up in the air.


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Some of the more notable cases included Robert Van Winkle, better known as Vanilla Ice,

versus English musician, David Bowie, and the British rock group, Queen. This argument was over

that Vanilla Ice, an American hip-hop artist in the early nineties, took a sample from Under Pressure,

a collaboration between David Bowie and Queen, as used them in his song, Ice Ice Baby, released in

1990. Queen and Bowie claimed that Van Winkle took the bass line and piano chords straight from the

song, with slight modification. Van Winkle initially told the press that since it was changed, that it

wasn't the same, therefore he was outside the spectrum of copyright infringement. He later retracted

these views and later settled out of court with Bowie and Queen for an undisclosed sum of money

(Demers, 93). Because the case was never actually brought to the court system, there were no legal

ramifications to be felt later by artists who chose to use samples of copyrighted material. This case

however, due to the media attention it received, opened the way for artists wanted to recover lost

royalties from other artists that chose to borrow their work without their permission.

One of the biggest cases involving the use of others work through sampling is the case of Grand

Upright Music, Ltd. v. Warner Bros. Records Inc, or more easily known as Biz Markie (born Marcel

Theo Hall) v. Gilbert O'Sullivan. The songs that were the focus of this case were O'Sullivans Alone

Again (Naturally), released in 1972, and Biz Markie's Alone Again, off ofI Need a Haircutreleased

in 1990. O'Sullivan claimed that Markie lifted some lyrics and a significant part of the song. When

listening to the song, you can hear the piano melody and chord progression used in O'Sullivan's song,

with Markie's use of humorous lyrics (one of Biz Markie's signatures in songwriting). Another part you

can hear in Markie's song is the lyrics, Alone again, naturally. I'm alone again, naturally. This is all

that was lyrically similar between the two songs.

One of major problems Markie ran into during the case was a poorly argued defense of his

work, and use of O'Sullivan's work. Markie's defense was that he contacted O'Sullivan in order to gain

permission to use the samples in Alone Again (Naturally). When they never received word from

O'Sullivan and his label, Markie and Warner assumed that it was okay for them to use the samples.


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Their next argument was that O'Sullivan and his label did not hold valid copyrights to the song, due to

a transfer of copyrights to a now-dissolved company (Crum, 952). This was rejected, as well as

attempts to exclude evidence by the defense, and using repealed sections of copyright law to

discredit O'Sullivan and Grand Upright Music. All of these points were dismissed by the courts as

baseless conjecture. Markie's last chance was an ill-conceived attempt at misdirecting the blame

away from himself as he said he should be excused because others in the 'rap music' business [were]

also engaged in illegal activity. The judge, Kevin Thomas Duffy, had a lack of interest in the case, as

well as the culture of sampling (McLeod, 79). He found the defendants guilty of copyright

infringement. Not only that, he invoked the Seventh Commandment (the Catholic rendition), Thou

Shalt Not Steal, and suggested Markie be subject to criminal prosecution in stealing of copyrighted

material, a charge that carries a large set of fines, and even potentially a prison sentence (Demers, 93).

Though before a sentence was ordered, the parties settled for an undisclosed sum. Unfortunately the

damage had already been done. Markie had to remove the album, I Need a Haircut, from stores and

had it taken off the radio waves, until the album no longer had the offending track. This devastated

Markies career, and he never fully recovered from it.

The ruling in this case had a much bigger impact than just Markies career; unlicensed sampling

would now be taken more seriously by studios and artists, giving them a chance to bring in lost money

from licensing fees. Not every case, however, ended with a ruined career. Some artists were able to

convince the courts that their sampling was under the legal jurisdiction of copyright.

One of the major defense most artists use when defending their sampling (when they are

caught with unlicensed samples), is to claim that their work is within the bounds of Fair Use. Under the

US Copyright Act of 1976, portions of copyrighted material can be used in another work, under the

reason of purposes of criticism, comment, news reporting, teaching (including multiple copies for

classroom use), scholarship, or research (Demers, 25). Many labels discourage using Fair Use as a

defense, since it has not been successful a majority of the time. One of the major exceptions to this is


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the case of Acuff-Rose v. Campbell, which involves rap group, 2 Live Crew, and their sampling of Roy

Orbisons Oh, Pretty Woman (Demers, 26). The group claimed that commercial parody falls

within the bounds of fair use in their 1989 track, Pretty Woman. 2 Live Crew had approached Acuff-

Rose and Orbison about acquiring clearance of the samples, but were refused. The crew had already

released the song two days before hearing about the negative response, thus leading them into the court

rooms for infringement. This eventually led to the Supreme Court, which ruled in 2 Live Crews favor,

stating that commercial parody could be a fair use (Demers, 55).

When the courts look at a Fair Use case, they look into several factors. If the plaintiff

(copyright owner), claims that the defendant (Sampling artist) used their work, wasnt original, created

with financial gain in mind, used a substantial amount of copyrighted material in the new work, or that

the defendants work will not have a major effect on the value of the plaintiffs work, then the

defendant will have a difficult time refuting those claims (Sirois & Martin, 10). A plaintiff can mostly

rely on two of these claims to insure that the courts will rule infringement was done by the defendant.

An artist doesnt always have to go through the risks of hoping that they dont get caught infringing on

an artists copyright. They can go through the legal route, and get their samples cleared by the

copyright owner.

When an artist wants to go through the process of clearing samples, they contact the person(s)

that hold the copyright to the piece of work. The copyright holder in most cases is the original artist,

but there are instances where the record company may hold the copyright (Krasilovsky, 28). The

sampling artist then request a license to use a sample from the work they wish to use. The terms are

negotiated between the two parties on how much time is allotted to the sampler, and how much in

royalties the copyright holder receives. Some versions include artists paying royalties based on how

many songs are sold with the sample, or to pay a single up-front fee, which tends to be very expensive

initially (Sirois & Martin, 18). Each option is a gamble for the sampling artist, because if they choose


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to do the one time fee and the song does not do well, then they are possibly losing money from the

deal, depending on how expensive each option was.

Another way for artists to clear copyrighted material for sampling is to go through what is

known as a Clearing House. These organizations help artists and labels with finding copyright owners

for them (for a fee of course), and to negotiate the fees associated with licensing the samples. Clearing

Houses have already setup a network for tracking down the copyright holders in a relatively short

amount of time, compared to an artist having to search on their own for a holder, and being able to

work out a deal with them in order to use the samples, without fear of litigation (Krasilovsky, 226).

Some record companies even have their own clearing house departments, devoted to samples and many

have pre-determined agreement ideas. There are agreements that use a flat fee, a co-publishing deal, or

a royalty based agreement that depends on the number of records sold (Sirois & Martin, 18). While

these seem like legitimate avenues, there are some labels that choose not to follow through with

licensing or gaining permission from copyright holders. While this helps artists with having freedom of

creating whatever they like and being able to release it without much thought to the copyrights, this

contributes to the problem of potential lawsuits against artists and studios, potentially bringing about

more regulations if their work becomes subject to the judicial system. Some clearance houses, like The

Music Bridge (www.themusicbridge.com), aim at specific demographics of musicians, and work with

sampling artists to clear any samples being used. Some also claim, like Music Bridge, that their fees

are less than what an artist would pay an attorney to do the clearance procedures, thus making it more

cost effective for the artists.

Ever since the major court cases, many studios have implemented their own efforts to look out

for unlicensed sampling from their artists. There are also new rules in place to protect the copyright

owner, in order that he/she gains their fair share of royalties and/or credit to new works. This helps

retain some integrity in new works being published as well as the value of the older pieces. There are

many artists, signed or unsigned, that do not have the financial capabilities to clear the samples they


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wish to use, making them stick with one sample or they opt for re-performance. One possible example

of a major artist being limited in the number of samples was Sean Combs, better known as Puff Daddy

(though after going through several name changes, he has now settled on Diddy as of writing). His

song, Ill Be Missing You, samples The Police song, Every Breath You Take, off the 1983 album,

Synchronicity (Demers, 97). The single for Ill Be Missing You has been certified triple Platinum in

the United States (and many other awards all over the world), so any fees incurred in producing this

track have most likely been covered (with extra money for himself as well). But sometimes, not

everyone has a chance to be able to release work that contains copyrighted work.

Mizumo Music, a San Francisco Bay Area based electronic dance music label, had a very

interesting take on enforcement of the use of copyright samples in their artists music. The label owner,

Denise Mizumo, said that it is the artists responsibility to clear samples from other copyrighted works.

The label bears no responsibility in paying for sample licenses or having to clear copyrighted material

for the artists. If a song contains an uncleared sample, the label will not release the track. Even though

Mizumo Music is a smaller label compared to Anjunabeats (one of the leading Trance music record

labels in the world), the number of tracks she receives to release that contain copyrighted material is a

small percentage of the rest of the songs on the label. One of her artists, Robert Ortiz, released a track

that had hip-hop samples within the song but had no issues when it was released on Beatport, a digital

music distribution site with a focus on electronic dance music. Beatport, according to Denise, has a

filter when tracks are uploaded into its servers that search for copyrighted sample material and blocks

them, which happened to another track from Mizumo when it was uploaded.

Denise, also known as DJ Denise in the Bay Area, has produced tracks that use copyrighted

material. One of her remixes was of Owner of a Lonely Heart, a song by the British progressive rock

band, Yes. She described the process as arduous since the song is fairly old, making tracking down the

copyright owner difficult. She was unable to track down the actual owner, and the person she talked to

did not give a straight answer to her, leaving her with no choice but to not release the track, over fears


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of possible litigation from the copyright owner(s). She also produced another remix, using Biz

Markies Just A Friend, which was released as a bootleg track. This was done to avoid infringement

since the track was released for free; therefore no royalties are being made off the track. This situation

has an ironic twist to it, since Denise released a song for free using Markies work, and Markie released

a song on his album, but was sued for lost royalties. Both artists had used samples that were not cleared

by the copyright owners. She also brought up an interesting point to the argument. There is a British

electronic dance music record label, Jack Union Records (setup by producer and DJ Hijack)

(http://www.jackunion.net), holding a remix contest using samples from Boogie Nights by disco group,

Heatwave. Upon contacting the label, no word was returned on how it was conducting the contest

using the samples from a copyrighted song, since the chosen remix would be released by Jack Union.

This creates an influx of new tracks using copyrighted material. So what choices do the remixers have

if their remix is not chosen by the company? Do they keep it to themselves since the samples were

probably not cleared, or do they release it as a bootleg track? This creates a dilemma for the producers

wanting to release their work that contains the samples.

One way for an artist to bypass the troubles of trying to clear samples or hiding from litigation-

prone copyright holders is to dive into what is known as a sample pack. A sample pack is a collection

of pre-cleared sounds that producers can use without having to pay royalties or have to search for a

copyright owner to gain clearance (Demers, 124). This not only allows artists, professional and

amateur alike, to create their productions faster and spending less money on clearance fees. The reason

that sample packs are royalty-free is that the consumer pays the licensing fees upfront when they

purchase one of these packages, and are not required to pay for sample use from the sounds found

within the pack. There are several companies that release sample packs, including: Loopmasters, East

West Sounds, Native Instruments, Heavocity, and Sounds/To/Sample, all being aimed at being

affordable, while maintaining high quality samples. These companies release different packs that are


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focused on certain genres of music, and may have artists that are leaders in their genres to create

sample packs tailored to their style. These packs contain single sounds of instruments and percussion,

or loops of melodies or drum patterns, There are even magazines that specialize in music production

that give away gigabytes of samples for the cost of the magazine itself, every month. These packs are

allowing aspiring artists to use samples in whatever way they see fit, but there is also a twist to this.

Many producers use the same sample packs, using melody lines or specific instrument sounds, which

floods the music marketplace with tracks that sound similar to each other, if the artists are using the

same sample packs. An online user argues with the use of sample packs is the reason that it takes away

from originality in creating or finding new sounds, instead of relying on samples. At least by creating

your very own sound for each part in your track you will be achieving 100% originality without fail.

Theres no right or wrong way to write music, but I believe there are always best and worst

ways (Demers, 125). One sample that can be found in several sample packs is a simple drum loop,

but this sample has a long history tied to it.

This famous sample heard across many genres of music is a drum beat known to many simply

as the Amen. The Amen is a drum solo break from The Winstons song, Amen, Brother, as a B-

side from the 1969 single, Color Him Father. The drum solo is a four bar clip heard at around one

minute and twenty-six seconds into the song. The basic beat is heard throughout the song, but this

section is heard clearly without any other instruments playing. This clip later became the backbone of

many hip-hop, rap, breakbeat hardcore, jungle, and drum & bass songs. Artists took this sample and

looped it across the song, editing the tempo or splicing the different snare, kick, or cymbal hits, and

altering their order or sound in whatever way they saw fit. The amount of variations of this 6-second

drum beat is staggering, and some of the compositions can be outright mind-blowing. Nate Harrison,

an artist and writer from Brooklyn, NY, created an eighteen minute audio documentary and installation

about the Amen Break, Can I Get an Amen? In this piece, Harrison describes the history of the

sample


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In hip-hop, artists like 3rd Bass with the track Wordz of Wisdom (off of the 1989 album, The

Cactus Album), 2 Live Crew and Feel Alright Yall (From Move Somethin, released in 1988), and

N.W.A. with Straight Outta Compton (Off the 1988 album with the same name), have used the

sample. These three songs are just a few of the many examples of the Amens usage during the free

reign of sampling in hip-hop and rap, before record companies and artists started to take notice of how

their copyrights were being used by other artists. Jungle, drum & bass, and other forms of electronic

music took the usage of the break to a different level. Artists like LTJ Bukem and Demons Theme

(released in 1991), Noisia and The Tide (2005), and many of Squarepushers releases including

Come on my Selector (Off ofBig Loada, released in 1997). Even David Bowie himself is guilty of

using the sample. It is featured in the track, Little Wonder, off the 1997 album,Earthling. The

sampling of the break became wildly popular, so popular that it even makes it into auto commercials

and movie soundtracks. The opening theme song from The Power Puff Girls, a Cartoon Network

television show about three crime-fighting superhero kindergarten girls, uses the breakbeat. The break

can also be heard on several occasions throughout the show, mainly during scenes when the Power Puff

Girls are seen fighting criminals.

Due to the extreme popularity of the break, an online database was setup to keep track of all

the tracks that use the sample. The database, amenbreakdb.com, is currently is a small project since it

only lists one hundred and seven tracks using the sample (as of writing). This can only be a fraction of

the number of tracks over the time span of sampling and the genres it is closely associated with. There

is no denying this six-second sample has had an impact on musical ideas and creativity in todays

music, be it popular or underground.

Upon doing a search using the keywords, amen, break, and sample, several websites are

found that actually lets you download the original samplefor free. A minimal amount of work will let

you start working on your own jungle, hip-hop, or song in whatever genre you see fit. While this lets

many aspiring artists use what so many others already have, this poses a problem to The Winstons. The


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owner of the copyright for Amen, Brother, Richard Lewis Spencer (the lead vocalist and tenor

saxophonist for the band), has claimed that he, or any other member of The Winstons, has not received

any royalties for the use of the sample over the years since sampling became relevant to music

production. Going through several forums, it appears that lack of knowledge or plain ignorance to the

copyright rules.

Taking cues from jungle and drum & bass, one of the tracks on my capstone album will be

using the Amen break as the basis of the song. Many artists, like Venetian Snares, Squarepusher, or Shy

FX, take the Amen break, and transform the sample into an entirely different drum beat, or beats, that

are laden with effects and strange manipulations of the different hits, e.g. using a snare hit from the

loop and repeating it at a rate which it sounds like a stutter effect, while altering the pitch of the

sample. An example of this effect can be heard throughout Shy FX and Gunsmokes Gangsta Kid,

found on the 1994 release, the Gangsta Kid EP. While I wish to replicate the concepts heard in tracks

in this style, I am recording the drums live in the studio, and a human drummer isnt able to play the

parts that I had planned. Which limits my creativity initially in pre-production, but I still have a chance

after recording to create the themes that are commonly found in jungle music.

One way for artists to bypass licensing of copyright material is to record their own version

of the sample in question. What an artist can do for example, is if they hear a vocal or guitar line they

like, they can go into a studio and record something as similar as possible to the original content.

While this still falls under the jurisdiction of copyright, it is much cheaper to pay for a re-performance

fee than for a license of the actual content (Mcleod, 88). This helps artists with creating original

content, while still using material similar to what they had originally planned. With sampling, this also

makes it easier to control the samples if they do not have background material in the reproduced

material, since most material that is targeted for sampling, for example vocals, might have the band

playing along with the vocal track. This poses a challenge to the sampling artist to clean up the


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material so that it is usable for them. This saves the artists time, money, and frustration involved with

dealing with the original copyrighted material.

A new idea has sprout up within the last decade is the idea of Creative Commons, a new way

for artists to pre-make agreements with other artists, for non-commercial work. Creative Commons is a

non-profit organization that allows and promotes this use of copyrighted material (Demers, 132).

Though getting a Creative Commons license is not an alternative to a copyright, as a Creative

Commons license can only be applied to works that have been copyrighted. One of the licenses

Creative Commons can issue is an Attribution license. This allows other artists distribute, remix,

tweak, and build upon your work, but there are different versions of the license that let you decide if

they can do so commercially or not, or require if they need you credit your name in the work

(http://creativecommons.org/licenses/). Artists with a Creative Commons license can allow others to

distribute their work, or be able to sample the work, according to the license and if it allows it. One of

the main things this license stresses is crediting the original artist, as he/she is the owner of the work,

and probably wanted the license as a means to distribute their work and name more easily than with

just a basic copyright. Though all of this is possible with a regular copyright, it can be difficult for a

person to find the copyright owner, or owners, in order to use the work. This license just takes a step

out of the process, and makes a pre-made agreement with the public, to make it easier for them and the

artist. Like with copyright, a sampling artist needs to follow the guidelines of the license. If the license

allows for another artist to remix their work, but release it non-commercially, then the remixer should

follow those terms. If they break those terms, then they are just as able to be handed a lawsuits if the

creative commons license wasnt used, since a copyright is needed to use that license.

Over the course of this paper, we have discussed what it is to sample another persons work, along

with the risks associated with (that is if you try and bypass the law). One of my main focal points is

around the notion that the current enforcement of copyright is hindering artists and their use of


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sampling. What I have found in my research is that sampling of copyrighted work is almost as big as it

was when it began, but with some variations of course. Artists are required to clear whatever samples

they use (pending they are not royalty-free), and provide proper compensation to the copyright holders.

There are many artists that do not clear the samples they use, like French electro-pop duo Justice,

which they admitted on a MTV interview about using artists like 50 Cent, Slipknot, and others on their

album, Genesis, without clearance (Vena, 2009), Or The Black Eyed Peas, having several lawsuits to

their name, with funk legend George Clinton, Phoenix Phenom, and songwriter Bryan Pringle sending

lawsuits in their direction (Michaels). While the laws dont always stop infringement from occurring, it

does not stop creativity from being used by artists in ways that most cannot imagine, unless of course

the artist is blatantly unoriginal and uses old material to create a hit song.

Many artists have taken sampling to new levels over the decades since its inception,

opening the door to new creative ideas in songwriting and sound production. Even though there are

plenty of options of sound creation with synthesis, taking previously recorded material, lyrics or

melodies, and altering them to the samplers choosing, has allowed artists to re-imagine music. From

classical music, oldies, to current popular music, nothing is exempt from being sampled, unless the

copyright owner wishes not to have any of their work sampled, for whatever the reason, but this does

not necessarily stop the act from occurring. Although sampling artists have virtual no restrictions to

what can be sampled (only limited by their creativity), it does not mean it is always legal to do so. The

best advice for a sampler is to contact the copyright owner(s) of a piece of work, because there can be

a chance that the owner my let you use the sample with minimal to no royalties involved, but that is

only the favorable scenario. Many artists try to gain some amount of payment for their work, but it is

much cheaper to do so with a contract, than with a lawsuit.


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Appendix

Songs and albums mentioned in order of appearance

Graf Orlock. "Run Over by a Truck."Destination Time Today. 2009. Vinyl recording.

Reel 2 Real Featuring The Mad Stuntman. "I Like To Move It."I Like To Move It. Strictly Rhythm,1993.

Real 2 Real. I Like to Move It (Twocker Remix)

Pitbull. I Know You Want Me (Calle Ocho).I Know You Want Me (Calle Ocho). Ultra Records,2009.

Pitbull. I Know You Want Me (Evol Intent Remix). Bootleg. 2009

Public Enemy. Caught, Can We get a Witness?It Takes A Nation Of Millions To Hold Us Back. DefJam Recordings, 1988.

Public Enemy. Night of the living Baseheads.It Takes A Nation Of Millions To Hold Us Back. DefJam Recordings, 1988.

Public Enemy. Incident at 66.6FM.Fear Of A Black Planet. Def Jam Recordings, 1990.

Public Enemy.Apocalypse 91-- the Enemy Strikes Black. Def Jam, 1991. CD.

Public Enemy. Muse Sick-n-hour Mess Age. Def Jam, 1994. CD.

Queen & David Bowie. Under Pressure. Under Pressure. EMI, 1981.

Vanilla Ice. Ice Ice Baby. To The Extreme. SBK Records, 1990.

Gilbert O'Sullivan. Alone Again (Naturally).Alone Again (Naturally)/Save It. MAM, 1972

Biz Markie. Alone Again.I Need A Haircut. Cold Chillin, 1991.

Roy Orbison. Oh, Pretty Woman. Oh, Pretty Woman. London Records, 1964.

2 Live Crew. Pretty Woman.As Clean As They Wanna Be. Luke Skyywalker Records, 1989.

Puff Daddy & Faith Evans. I'll Be Missing You. Tribute To The Notorious B.I.G. Bad BoyEntertainment, 1997.

The Police. Every Breath You Take. Synchronicity. A&M Records, 1983.

Yes. Owner of a Lonely Heart. 90125. ATCO Records, 1983.


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Yes - Owner of a Lonely Heart (DJ Denise Remix)(Unreleased)

Biz Markie. Just A Friend. The Biz Never Sleeps. Cold Chillin 1989.

Biz Markie Just A Friend (DJ Denises Middle School Mix)(Bootleg), 2010.

http://www.djdenise.com/web/443/

Heatwave. Boogie Nights. Too Hot To Handle. Epic, 1976.

The Winstons. Amen, Brother. Color Him Father. Metromedia Records, 1969.

The Winstons. Color Him Father. Color Him Father. Metromedia Records, 1969.

3rd Bass. Wordz of Wisdom. The Cactus Album. Def Jam Recordings, Columbia, 1989.

2 Live Crew. Feel Alright Y'all. Move Somethin. Luke Skyywalker Records, 1988.

N.W.A. Straight Outta Compton. Straight Outta Compton. Ruthless Records, 1988.

LTJ Bukem. Demon's Theme.Demons Theme/A Couple Of Beats. Good Looking Records, 1991.

Noisia. The Tide. The Tide/Concussion. Vision Recordings, 2005.

Squarepusher. Come On My Selector.Big Loada. Warp Records, 1997.

David Bowie. Little Wonder.Earthling. Virgin Records America, Inc. 1997.


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Bibliography

Barnet, Richard D., and Larry L. Burriss. Controversies of the Music Industry. Westport,CT:Greenwood, 2001. Print.

McLeod, Kembrew. Freedom of expression: overzealous copyright bozos and other enemies ofcreativity. New York, Double Day, 2005.

Crum, Joshua. "The Day the (Digital) Music Died: Bridgeport, Sampling Infringement,and a ProposedMiddle Ground."Brigham Young University Law Review (2008):943-69. Print.

Elias, Stephen, and Lisa Goldoftas.Patent, Copyright & Trademark: a Desk Reference toIntellectualProperty Law. 1st ed. Berkeley: Nolo, 1996. Print.

Harrison, Nate. Can I Get an Amen? 2004 http://nkhstudio.com/pages/amen_mp4.html

Kot, Greg.Ripped: How the Wired Generation Revolutionized Music. New York:Scribner, 2009. Print.

Krasilovsky, M. William., and Sidney Shemel. This Business of Music: the DefinitiveGuide to theMusic Industry. 8th ed. New York: Billboard, 2000. Print.

Michaels, Sean. "George Clinton Sues Black Eyed Peas for Copyright Infringement | Music |Guardian.co.uk."Latest News, Comment and Reviews from the Guardian | Guardian.co.uk. 14

Dec. 2010. Web. 01 Apr. 2011. http://www.guardian.co.uk/music/2010/dec/14/george-clinton-black-eyed-peas.

Miller, Paul D., ed. Sound Unbound: Sampling Digital Music and Culture. Cambridge,MA: MIT,2008. Print.

Mizumo, Denise. Personal Interview. November 6, 2010

Sirois, Andre, and Shannon E. Martin. "United States Copyright Law and DigitalSampling: AddingColor to a Grey Area."Information & CommunicationsTechnology Law, 15.1 (2006): 1-32.Print.

Strahilevitz, Lior J. "Charismatic Code, Social Norms, and the Emergence of Cooperationon the File-Swapping Networks." Virginia Law Review 89.3 (2003): 505-95. Print.

Walser, Robert. "Rhythm, Rhyme, and Rhetoric in the Music of Public Enemy."Ethnomusicology 39.2


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(1995): 193-217. Print.

Vena, Jocelyn. "French Duo Justice Reveal Songwriting, Sampling Secrets: 50 Cent, Slipknot Take

Note! - Music, Celebrity, Artist News | MTV."New Music Videos, Reality TV Shows, CelebrityNews, Top Stories | MTV. 31 Nov. 2009. Web. 16 Mar. 2011.http://www.mtv.com/news/articles/1599116/justice-reveal-sampling-secrets.jhtml.

"MPC5000 The New Flagship MPC."Akai Professional - APC MPC EWI MPD MPKLPK XR20 BEATS HEADRUSH. Web. 08 Mar. 2011.http://www.akaipro.com/mpc5000

Authors note

To find samples used by artists today in an ever increasing database, visit the website,

www.whosampled.com. You can search for any artist you choose, and if they sample another piece of

material, it will list it along with links to Youtube to compare the songs together as proof.
http://www.akaipro.com/mpc5000http://www.akaipro.com/mpc5000

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