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First, thank you for the very well thought out and researched comment. > Your analysis omits the concept of "transformativeness." You are correct that I am no

First, thank you for the very well thought out and researched comment. > Your analysis omits the concept of "transformativeness." You are correct that I am not necessarily considering cases where a sample is modified extensively before being used. Though I will say that, though that might make it legal to use without permission, I myself don't necessarily think that it should be legal even were it changed to an extreme degree. It's something I'd have to think about further and would surely require a case-by-case analysis. That being said, I do think most sampling that I am aware of would not be transformative. In general -- and maybe this could even be a good theoretical legal test, though it's not for me to decide -- if I listen to an original song, and then a newer one which samples the original, and recognize the sample, then I wouldn't consider it transformative. > This is why a search engine company can produce a thumbnail of a page without running afoul of copyright law. I don't know the legal implications of this, but that is surely a very different situation than sampling music. The thumbnail is to give users a quick preview of what to expect when they click into the page. A reused sample is doing just that -- being literally reused in the same way it was used originally except in someone else's work. Surely this disparity of use must have some legal meaning, as I do feel it surely has moral meaning. > It's also how commercial parody can (though not necessarily) be done without a license from the original author. Indeed, but again I don't think I necessarily see how that applies to a reused sample in any case except where the new song actually parodies the original (which certainly does happen on occasion, with Weird Al being an obvious example). > It's also why a judge recently decided that Google's book scanning system, which does not have copyright permission from the owners, is sufficiently transformative without reducing the primary market that it is legal under fair use. I'd argue that plenty of sampling does indeed reduce the market for the original. Plenty of people seek out a song because they've heard it somewhere and now that "catchy tune" is in their heads. The "catchy tune" gives it economic value, which is being essentially stolen when someone samples without permission. The Kanye West / Daft Punk / Edwin Birdsong example that I gave elsewhere in this thread exemplifies that. I'm sure that plenty of Kanye West fans who might have bought or otherwise sought out (thinking more of exposure through ads / radio than piracy here) Daft Punk's original wouldn't bother or need to since Kanye's version is essentially Daft Punk's with some rap verses thrown in. That catchy hook is the same in both. EDIT: to be clear, assuming Kanye / Daft Punk obtained the necessary rights I of course have no problem with these songs existing. > Not everything which is valuable has government-granted monopoly rights. The US does not accept "sweat-of-the-brow" as a basis for copyright, which is why databases cannot be copyright, even if the database itself is valuable. That is a good point, though I think the combination of a sample being both copyrightable and valuable is a potent argument to those who would say that a misappropriation of a sample is just a "small-potatoes" or irrelevant infraction, legally or ethically. So I suppose I wasn't arguing entirely on the basis of law with that statement.

dalke 13y ago
> It's something I'd have to think about further and would surely require a case-by-case analysis. The courts agree with you completely. The Supreme Court ruling Campbell v. Acuff-Rose Music says that any such analysis must include four factors: if it's commercial/non-commercial, the nature of the copied work, the amount copied, and the effect of the copy on the market for the original work. Parody requires that the original music be somehow recognizable, so the courts disagree with your "do I recognize the sample" test. The "catchy tune" example you gave may be a violation of copyright, or it may be fair use. For example, if the original song was from the 1970s, with a current market of 20 iTunes+Amazon+whatever sales per year, and the new song comes out making 1 million sales, then it's fair to say that the new song did not greatly affect the primary market. A full analysis would need to cover at least those three other factors as well. I don't know anything about the Kanye West / Daft Punk / Edwin Birdsong example. I follow so little of modern music. I've certainly read more copyright cases than I've heard songs from all three of those composers combined. More classically, consider Ella Fitzgerald's famous and lovely scat version of the song "How High the Moon", in which she quotes from other popular songs, including "The Peanut Vendor", "Heat Wave", "A-Tisket, A-Tasket", and "Smoke Gets in Your Eyes". These are music samples, which include the catchy hook from those songs, but where I think anyone would agree there was no market confusion. I do not know how copyright issues were settled for that recording, nor in live performances (in jazz improvisation, the artist make things up on the spot; how then would all the original artists get paid?). However, it was before Grand Upright Music, Ltd. v. Warner Bros. Records Inc. , which is the court case that established that samples were under copyright law. During Fitzgerald's time her use was likely "accepted practice and such copyright considerations as these were viewed as largely irrelevant." (Quoting http://en.wikipedia.org/wiki/Fair_use http://en.wikipedia.org/wiki/Fair_use ) We had a very vibrant music industry before Grand Upright Music v. Warner Bros, and it allowed genres like scat which incorporated snippets of other copyrighted material. However, do note that that Fitzgerald wasn't "sampling." There are different copyrights for the lyrics, the music, and the musicians, and sampling covers recordings. This is why some hip hop artists use "interpolation" - replaying the music but with different instruments, and only paying the songwriter and not the artist or label. It may sound very similar, but it's not the same and so not covered by the "sound recording" definition used in Bridgeport Music, Inc. v. Dimension Films. I am not so versed in music copyright at software and written works, and didn't learn about interpolation until just now. When you say "sampling", do you also mean to include interpolation? BTW, I see you use the term "stolen." The better term is "infringed." Copyright is a limited monopoly protection which expires, and so far copyright violations are part of civil law rather than criminal. While "stolen" has connotations of property rights and criminal law. Using the concept "stolen" may lead to incorrect assumptions when some concepts are incorrectly transferred.

dalke 13y ago

> It's something I'd have to think about further and would surely require a case-by-case analysis. The courts agree with you completely. The Supreme Court ruling Campbell v. Acuff-Rose Music says that any such analysis must include four factors: if it's commercial/non-commercial, the nature of the copied work, the amount copied, and the effect of the copy on the market for the original work. Parody requires that the original music be somehow recognizable, so the courts disagree with your "do I recognize the sample" test. The "catchy tune" example you gave may be a violation of copyright, or it may be fair use. For example, if the original song was from the 1970s, with a current market of 20 iTunes+Amazon+whatever sales per year, and the new song comes out making 1 million sales, then it's fair to say that the new song did not greatly affect the primary market. A full analysis would need to cover at least those three other factors as well. I don't know anything about the Kanye West / Daft Punk / Edwin Birdsong example. I follow so little of modern music. I've certainly read more copyright cases than I've heard songs from all three of those composers combined. More classically, consider Ella Fitzgerald's famous and lovely scat version of the song "How High the Moon", in which she quotes from other popular songs, including "The Peanut Vendor", "Heat Wave", "A-Tisket, A-Tasket", and "Smoke Gets in Your Eyes". These are music samples, which include the catchy hook from those songs, but where I think anyone would agree there was no market confusion. I do not know how copyright issues were settled for that recording, nor in live performances (in jazz improvisation, the artist make things up on the spot; how then would all the original artists get paid?). However, it was before Grand Upright Music, Ltd. v. Warner Bros. Records Inc. , which is the court case that established that samples were under copyright law. During Fitzgerald's time her use was likely "accepted practice and such copyright considerations as these were viewed as largely irrelevant." (Quoting http://en.wikipedia.org/wiki/Fair_use http://en.wikipedia.org/wiki/Fair_use ) We had a very vibrant music industry before Grand Upright Music v. Warner Bros, and it allowed genres like scat which incorporated snippets of other copyrighted material. However, do note that that Fitzgerald wasn't "sampling." There are different copyrights for the lyrics, the music, and the musicians, and sampling covers recordings. This is why some hip hop artists use "interpolation" - replaying the music but with different instruments, and only paying the songwriter and not the artist or label. It may sound very similar, but it's not the same and so not covered by the "sound recording" definition used in Bridgeport Music, Inc. v. Dimension Films. I am not so versed in music copyright at software and written works, and didn't learn about interpolation until just now. When you say "sampling", do you also mean to include interpolation? BTW, I see you use the term "stolen." The better term is "infringed." Copyright is a limited monopoly protection which expires, and so far copyright violations are part of civil law rather than criminal. While "stolen" has connotations of property rights and criminal law. Using the concept "stolen" may lead to incorrect assumptions when some concepts are incorrectly transferred.