Sampled or stolen? Untangling the knotty world of hip-hop copyright

In modern rap, barely a day ever passes without a fresh story about “borrowed” beats. The likes of Kanye West, Jay Z and Mac Miller have all been recently involved in legal disputes that rumbled on for longer in the courtroom than each artist probably spent in the studio making the track in question. Intellectual property attorney Jessica Meiselman unearths the legally-shaky fault lines on which rap was built to discover the problem isn’t going away anytime soon.

In 1979, when ‘Rappers’ Delight’ introduced hip-hop to the world, sampling was not yet a term or even an idea that most producers or listeners were familiar with. The song was based on elements snatched from Chic’s ‘Good Times’, but rather than use the original song, it was replayed by a band of session musicians. Afrika Bambaataa’s 1982 hit ‘Planet Rock’ took a similar approach, re-playing elements of two Kraftwerk tracks, ‘Trans Europe Express’ and ‘Numbers’ instead of using direct snippets.

Fast forward to 1986, and three classic rap tracks were pieced together from elements snatched from James Brown’s litany of hits: Boogie Down Productions’ ‘South Bronx’ used a number of samples including the soon-to-be ubiquitous ‘Funky Drummer’, Erik B. & Rakim’s ‘Erik B. Is President’ sampled Brown’s ‘Funky President (People It’s Bad)’ and Kool G Rap and DJ Polo’s ‘It’s A Demo’ sampled ‘Funky Dummer’ (again) and ‘Get Up (I Feel Like Being A) Sex Machine’.

The genie was out of the bottle and three decades later, sampling has become an integral part of music production in a variety of musical genres. The legal implications surrounding sampling though are deeply misunderstood. Due to confusion surrounding the legal clearance of samples, artists often find themselves embroiled in disputes with rights owners over the use of even the smallest snippet. The law states: “get a license or do not sample”, but this is nevertheless ignored by plenty of artists today.

Recently we’ve seen Baauer sued for unauthorized vocal samples in his 2012 banger ‘Harlem Shake’, Frank Ocean sued over a sample-within-a-sample in ‘Super Rich Kids’ and the Weeknd sued for using a movie soundtrack sample in his chart-topping song, ‘The Hills’.

In 2011, Cleveland DJ and rap artist Orrin Lynn Tolliver Jr. was awarded over $1 million against the Black Eyed Peas and a friend who had reportedly licensed a sample of one of Tolliver’s recordings to the band for use in the popular ‘My Humps’. Jay Z and Timbaland paid $100,000 to use a sample of Egyptian artist Hossam Ramzy’s ‘Khusara Khusara’ in their 1999 hit ‘Big Pimpin’ and still found themselves in court when the artist’s family claimed that their “moral rights”, — an Egyptian legal concept not accepted under US law — or the right to approve derivative uses of the song, was infringed. The family was eventually unsuccessful, but not before a lengthy court battle. While each of these cases comes with its own set of facts, the sheer number that continue to emerge — despite very few of them ending favorably for the person sampling — indicates a disconnect between the law and the creative process.

Hossam Ramzy’s ‘Khusara Khusara’, sampled by Jay Z on ‘Big Pimpin”.

Kanye West is an artist whose rap empire is famously built on sampling. Nearly every track he produces utilizes snippets of other people’s music; he will often change the pitch and speed of a clip, looping it throughout a track, layering original beats over the top. Subsequently, his creative manipulations have proven incredibly influential, and his sample-driven style has informed a legion of other producers over the last couple of decades. In many cases, his use of a sample has led to residual success for the sampled song. Desiigner’s track ‘Panda’ is the most recent example — it soared to no.1 on the Billboard Hot 100 chart after being sampled by West on ‘Father Stretch My Hands Pt.2’. But West regularly finds himself embroiled in litigation surrounding his use of samples: in 2012 the rapper/producer was sued over uncleared use of a track by The Persuaders in his remix of Jay Z’s ‘Girls Girls Girls’ and in 2013, ‘Bound 2’ became a point of controversy, as West was sued over his unauthorized use of a Ponderosa Twins sample. Before that, he was sued several times for 2005’s Late Registration: ‘Gone’ incorporated an unauthorized sample of late jazz musician Joe Farrell’s ‘Upon this Rock’, and ‘Gold Digger’ used an uncleared sample of Joe Pryor’s ‘Bumpin’ Bus Stop’.

In May of this year, Hungarian artist Gábor Presser (of ‘60s rock band Omega) filed a lawsuit against West and his publishing company alleging that ‘New Slaves’ included an unauthorized sample of Omega’s ‘Gyöngyhajú Lány’. According to Presser’s complaint, on May 22, 2013, five days after the song was premiered via projections on buildings in 66 major cities across the world and four days after the song was performed on SNL, Presser received an email from Kanye West’s attorney stating that West “would like to work out a deal with [him] as soon as possible.” The email came with a sense of urgency; in order to preserve West’s plans to use the sample in further promotional projections, West’s representatives asked that Presser and his attorneys enter into an agreement regarding the sample within 24 hours. Presser responded with several inquiries regarding plans for future uses of the song to which he received no response. He later received an advance check for $10,000 and instructed that he was therefore “obligated to consent to West’s” use. Presser did not cash the check, nor did he sign the draft agreement which was presented to him in January 2014. To date, there is no agreement in place surrounding the use of the sample, and he has not received any financial compensation for the usage. To put into perspective just how much money is at stake in these types of cases, Presser is suing West and his publishing company for no less than $2.5 million.

Omega’s ‘Gyöngyhajú Lány’, sampled by Kanye West on ‘New Slaves’.

For an artist like Kanye West, failing to clear a sample can appear almost like a deliberate attempt to take advantage of other musicians and evade legal responsibility. For other artists, following his example may be a choice, or it may be a serious misunderstanding of the law. Sampled artists too often find they have no choice but to submit to legal process to obtain fair remuneration for their works. The multitude of lawsuits claiming millions of dollars in damages are clear evidence that the system is broken and its very basis, Bridgeport’s emblematic “get a license or do not sample” rule, is probably to blame.

In 2005, Bridgeport Music, the owner of Funkadelic’s masters, sued N.W.A. for their use of a two-second guitar chord in their song ‘100 Miles and Runnin’. The chord’s pitch was lowered, and it was looped five times throughout the song. This case has been interpreted by most judges to completely disallow any sampling without a license, regardless of how small the sample, or whether the use is for a mixtape or a commercial release. Because this ruling came down from a Federal Court of Appeals, it is considered “controlling” and other lower courts ruling on similar issues are bound to abide by it.

Earlier this month, Madonna won a landmark appeals court ruling against the copyright owner of The Salsoul Orchestra’s ‘Ooh, I Love It (Love Break)’, affirming an earlier ruling that excused her unauthorized use of a tiny horn sample in ‘Vogue’. This decision directly contravenes the Bridgeport decision which, until this case, had set the standard for the disposition; the court refused to accept the existence of a de minimus exception for the use of a two second sample. It held that no matter how small the use, a sampler should “get a license or do not sample”. Bridgeport may have been overly strict, but viewed in its most favorable light it created a bright-line rule that was very easy to understand: under no circumstances should you use someone else’s music unless you have obtained a license.

The Salsoul Orchestra’s ‘Ooh, I Love It (Love Break)’, sampled by Madonna in ‘Vogue’.

Confusingly, the application of this rule has been inconsistent and the ‘Vogue’ decision only makes the situation more puzzling for artists. Peter Rivera, the lead singer of popular Motown band Rare Earth saw one of his tracks sampled by Kanye West on this year’s ambitious full-length The Life of Pablo. His vocals from ‘(I Know) I’m Losing You’ alone provide the emphatic introduction to the track ‘Fade’ and are looped, clearly audible through the entire song. When asked to comment, Mr. Rivera claimed “I heard because [the sample used] was less than 8 seconds he got away with it.” Currently, there is no time limit attached to the requirement to obtain a license.

Another common misconception is that just because a mixtape is released for free, unauthorized samples are fair game. In 2012, Lord Finesse sued Mac Miller for $10 million over his use of ‘Hip 2 Da Game’ on the free mixtape K.I.D.S. (Kickin’ Incredibly Dope Shit). Released for free in 2010, the tape was credited for launching Miller’s career. Miller’s label argued that they did not profit off the mixtape, so the damages couldn’t come close to the $10 million claimed. Shortly after the case was filed, Lord Finesse tweeted: “Basics – Mixtapes are one thing, but you can’t take someone’s else’s entire song, shoot a music video and call it your own.” This statement speaks to an understanding amongst hip-hop artists, that mixtapes are somehow exempt from the same standards as commercial releases. If we apply the law as set forth in Bridgeport, the fact that a song containing a sample was released for free does not absolve the artist from any liability. The case was confidentially settled, meaning that we don’t have any court guidance on this specific topic, but the lawsuit’s filing indicates that it is at least plausible to argue that mixtapes are not released in a vacuum; even the free release of a mixtape on the internet has commercial implications.

Of the many lawsuits that have sprung up in years following the Bridgeport decision, most conclude in confidential settlements. Accordingly, information about just how much revenue a sample can generate is scarce. However, there is no doubt that use of a very small part of a song can lead to a multi-million dollar award by a judge and huge chunks of ownership for the litigants. In a 2015 settlement, Jay Z was reportedly forced to give up 50% of his royalties attributable to ‘Versus’ for using an uncleared sample of Bruno Spoerri’s ‘Lilith – On The Way’. For a record that went double platinum in the United States, this is no small sum of money.

Bruno Spoerri’s ‘Lilith – On The Way’, sampled by Jay Z on ‘Versus’.

As Gábor Presser’s and other cases against Kanye West suggest, the rapper/producer appears unconcerned with finalizing any clearance agreement until after the track has been released. In February 2015, West premiered his song ‘Wolves’ during an Adidas Yeezy Boost fashion show and performed the song on SNL. The song included a sample from Sugar Minott’s ‘Walking Dub’. Almost two weeks after the premiere, Easy Star Records received an email asking about clearing the track.

Vin Cassidy, the founding drummer of the northern English band Section 25, recalls being contacted in early January for artistic approval of West’s use of a sample of ‘Hit’ in his song ‘FML’. After voicing preliminary approval, he states that everything “went quiet”, leading him to assume the track had been scrapped. Then, several weeks later, he received an email noting that the sample was going to be used and reflecting an initial sense of urgency to come to an agreement. Since then, there have been, as he describes numerous “stops and starts, and twists and turns”, and the communications with Kanye’s team are “off the scale in terms of arrogance”. Cassidy describes the whole ordeal as “a ball ache”, noting that Kanye’s representatives are near impossible to reach because his attorneys routinely change, and as such, the affair is ongoing. He candidly notes that at one stage, he received “an email from this lawyer in LA telling me he’s reaching out like he’s some sort of fucking social worker or somethin’.” On his side, there is clear cause for frustration; his song was released back in 1981 and he is not Kanye West. This is uncharted territory for Cassidy and his resources are limited; he’s had to pay a lawyer throughout the ordeal, and there’s no end in sight.

Section 25’s ‘Hit’, sampled by Kanye West on ‘FML’.

As he premiered ‘Champions’ on Big Boy’s morning show earlier this month, Kanye West earnestly described the excitement and emotion surrounding the release of his latest track, which features guest verses from Big Sean, 2 Chainz, Quavo and a recently freed Gucci Mane, among other hip-hop heavyweights. “They start calling [me] like, ‘Should we get this cleared, should we do this?’ I was like, ‘Nah man, you gonna kill the magic.’ You just gotta bring this up here right now, let people feel it, get y’all reactions for the first time.” From West’s perspective, to preserve that special feeling and get an authentic reaction from fans, the timing of the release is part of his creative process – much more important than crossing his Ts and dotting his Is with all the legal business. In hip-hop, he says, “you can’t kill the feeling, the energy that people have around [the track].”

West’s sense of urgency mirrors the general impatience of our on-demand economy. Progress in technology has presented challenges for the music industry in the past; the proliferation of streaming services has forced the application of compulsory schemes. Compulsory schemes provide royalty rates based in law or contract which apply broadly, instead of each artist negotiating their own deals. If a framework could be designed to compromise on these issues, sampling too could be addressed on a broad scale. A compulsory license scheme has been suggested for sampling in the past, but copyright owners have voiced disapproval, arguing that it removes power from songwriters.

Baauer and Mac Miller’s sampling cases are alike in that their disputed tracks essentially launched their careers. When asked about why he didn’t obtain a license for his samples in ‘Harlem Shake’, Baauer stated “I was in my fucking bedroom on Grand Street”. For a bedroom producer, clearing a sample can be nearly impossible, both financially and in terms of administration. Kanye West, as a kind of poster child for modern sampling, bears some responsibility to abide by the law, but in an industry where artists pick and choose which laws they follow, why would he? Both West and Mac Miller credited the artists they sampled upon release, clearly evidencing some notion of acknowledgement of rights.

Nobody is arguing that credit should not be given where credit is due, but it is almost inevitable that even the biggest artists will continue to skirt legal obligations if there is no streamlined process to legally clear a sample. When an artist as massive and as instrumental to hip-hop and sampling culture as Kanye West is this slapdash about securing permission for samples, it can only follow that there is something seriously broken with the system. He’s far from alone in this practice, but the failure to provide solutions outside of a lawsuit chills creative progress and directly harms artists.



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