Sampling copyright
...iable sound of an artist, may possess the required degree of personality to warrant copyright ability. For example One note sung by Maria Callas might be labelled a signature sample, that even if altered (for eg. Raised an octave) it may be clearly identifiable as her creation. In the Miami Vice theme song dispute, an action was brought by David Earle Johnson claiming originality against Jan Hammer who created the theme. Jan Hammers manager was quoted as saying that David Earle Johnson (the creator of the original) "didn't do anything." Depending on the length of the sample and the actual music recorded, Johnson may have contributed the artistic keystone to the piece, even though it was but a small motive. Or, if the samples of different beats were taken and edited into a composition by Hammer, David Johnson might still maintain that the sounds from his unique instruments were in his control. Whether possession of a rare instrument would imbue a sample with sufficient personality to meet the minimum originality of copyright is just one question raised. The jury in this case decided that the lead in drum beats to the theme song were recognizable as being unique or displaying a degree of originality. And the case was awarded in favour of Johnson Copyright Ability Another way for artist to gain copyright ability is to produce what is considered a ‘work of art’ According to the Copyright Act of 1972 “Works of Art” also deserve copyright protection. Again I read from McGraw While the courts will not require a high level of creativity to identify a creation as a ‘work of art’ deserving copyright protection, they are still given leeway in determining that an object is not a ‘work of art’.89 The simulation of an antique telephone was held to be a ‘work of art,’ but an arrangement of a plastic flower corsage was not.92 Professor Melvile B. Nimmer, of the University of California, Los Angeles, who published ‘Nimmer on Copyright’ states, “no very precise standard can be evolved which will determine in advance with any certainty whether certain board-line objects will be regarded as works of art…’ A thing is a work of art if it appears to be within the historical and ordinary conception of the term art.’” It seems that the law regarding Copyright Ability is a little shady, a lot of loose terms are used and a lot of things go unexplained and undefined. The law regarding infringement is not much different. Infringement of copyright protection Under general copyright law (which applies to literary works, musical works, and the like), a finding of infringement requires (1) absence of independent production, and either (2) non verbatim use at an impermissibly low level of abstraction, or (3) excessive verbatim quoting of the copyrighted work.103 Some courts use the single term "copying" as a short hand for both the first and second issues. Others use the term "substantial similarity" when investigating the second and third issues. Furthermore, there is widespread uncertainty as to an appropriate test for establishing substantial similarity. Various tests that have been applied by the courts are the "pattern test," the "demand test," the "ordinary observer test," the "audience educated to the medium test," the "iterative test" -- and all of these are subject to the court's interpretation of what constitutes "fair use," a concept no less hazy in its application than that of "substantial similarity." To establish infringement, a plaintiff must prove his or her ownership of the copyright, and copying by the defendant. With respect to ownership, the copyright registration certificate constitutes prima facie evidence in favour of the plaintiff. Unlike the copyright protection extended to other works under the Act, only those sound reproductions that directly or indirectly recapture the actual sounds fixed in the recording are prohibited. Imitation or simulation of a sound recording is expressly excluded from the definition of infringing activities. That means, a literal copy of a sound recording must be made in order to constitute infringement. Samples are literal copies. So understandably there is widespread uncertainty as to an appropriate test for establishing substantial similarity, although the punishment for committing infringement is considered quite certain. Under the U.S legal system, the remedies for infringement are injunctions against further copying, actual damages and recovery of the infringer's profits, and/or statutory damages.142 Section 506(a) of the Copyright Act provides that "any person who infringes a copyright willfully and for purposes of commercial advantage or private financial gain" has committed a criminal offense. 143 The prescribed penalty depends upon the nature of the work infringed and on the particular acts of infringement involved. 144 Statutory damages alone (ranging from $250 to $10,000) may be awarded in lieu of actual damages and defendant's profits, but only if the plaintiff has registered the work with the Copyright Office within certain time limits. 145 So should artists be given legal protection to stop individuals from profiting through the incorporation of ‘samples’ into their music creations? A lot of people think not! Tom Lord-Alge, who won a Grammy in 1987 for sound engineering and is a recognized master of musical cut and paste, when asked about the current industry practice of sampling, he stated. “We’re all blatantly stealing from everyone else…. That’s just the way twas done in the 80’s.” ?? Arthur Baker, described as one of the kings of the audio cut and paste, has echoed Lord Alge’s sentiments. Baker is quoted as saying, “This is a new form of music, just like collages. The technology has developed to the extent that if you like the sound, you can have the sound.” When interviewed, George Clinton said 'De La Soul pay real well' (MT, (March 1992)), when they used one of his samples, in one of their recent releases. However not all agree. James Brown is one of the most sampled artists of all time. His music has been sampled by hundreds of well-known hip-hop producers worldwide. Not only was his scream taken for the album Orchestral Manoeuvres, but another New York engineer, Frank Doyle, took a horn blast from one of Brown’s songs and turned it into a lush, mellow tone for a Japanese singer’s love ballad.38 Although Doyle says, “I didn’t feel at all like I was ripping James Brown off.” Brown sees it differently: he states. “Anything they take off my record is mine. Is it all right if I take some paint off your house and put it on mine? Can I take a button off your shirt and put it n mine? Can I take a toenail off your foot—is that all right with you?” In an article on ‘Copyright Law and the Ethics of Sampling’ it furthered to mention The fact that any sample must be paid for is thought to be so crucial that at PolyGram there is a whole department whose job is to listen to records to check for unlicensed James Brown samples. James Brown who was himself skeptical about sampling, has now started sampling artists who have sampled his work previously and altered it in some strange way that amazes him. Because of the economic realities of going to court the case law in this area is quite sparse. The expense also means that copyright infringement does not usually become an issue until someone has made serious money from someone else's creation. Now, understandably a lot of artists wish to protect their work, and defend themselves against this newfound art form. Although its clear that the creative aspirations of many artists will encourage the behaviour of sampling for a long time to come. Also with the uncertainties regarding the copyright ability and infringement laws it will be interesting to see how it compensates both the established artist and aspiring individual. McGraw from the University of California makes a valid point in saying that Session musicians are not at all pleased with the current development.40 These days a musician is not limited to his own sounds. With a sampler and a handful of records, a keyboardist can fabricate a ‘performance’ with his/her choice of musician from the past century. With realistic sounds at their disposal there is less need to hire musicians who are limited to few instruments and cost more than your average record. Sampling may threaten the future of studio and concert performers. Defences Electronic Alteration of a DIGITAL Sample as a Defence According to U.S Law Where there is literal copying, there is substantial similarity. Subsequent electronic alteration of the copied portion provides no defence. In U.S. v. Taxe, 124 four defendants were convicted of willful infringement of copyrights for profit. Richard Taxe and his co-conspirators purchased stereo tape recordings manufactured by major record companies on the open market.125. The defendants used specially modified electronic tape equipment to re-record the music. They added new sounds produced by synthesizers and eliminated or reduced the volume of other sounds. The altered music was then sold on eight-track tapes to the public via a national advertising campaign.126 The Court of Appeals upheld the criminal conviction, explaining that although the owner of the sound recording copyright is not expressly vested with the right to produce derivative works, he can protect his right of reproduction from persons who produce an audibly equivalent work by re-recording. 127 McGraw went on to say Thus, copyright protection was extended to cover such samples; the alteration of James Brown's horn blast into a lush, mellow tone would be deemed a derivative work. Given the possibilities of this new technology, it is conceptually possible to so alter a given sample that any marked similarities to the original sound would be lost. Nevertheless, if through the use of extrinsic evidence, the plaintiff could show that the altered sounds were his own, a suit for infringement would protect his right of reproduction. Even so, the courts in considering the use of the sample within the context of the derivative work could deem its importance trivial and limit recovery, if any, to the statutory minimum. Crediting It is acceptable to copy text documents from the Internet as long as you reference the Author if you wish to use it as part of your own. Should it then be acceptable to copy sounds from someone’s song to use in your own as long as you credit the artists? There are many solutions to the problems associated with sampling copyright, none of which manage to accommodate both sides of the argument. In an article on ‘Copyright Law and the Ethics of Sampling’ the author offers his ideas on some of the proposed solutions and current remedies for combating problems associated with sampling copyright. His thoughts on crediting were, ‘Crediting artists for sam...