Have
you ever listened to a song on the radio today and thought, “Hmm that sounds
eerily similar to [insert another song here]?” Probably. Sampling music is more
common than one would think, in fact it’s become a huge portion of the music
industry due to the increased popularity of rap music (Kravis 233). Sampling as
well as songs unintentionally sounding similar can cause problems within the
music industry. There is a huge debate over the practice of sampling (Kravis
233) and the copyright act of 1976 as well as what constitutes “fair use” and
what constitutes stealing a song (Kravis 234). However, not many cases of such
practices get much media coverage, except perhaps Sam Smith’s “completely
unintentional” use of Tom Petty’s “I Won’t Back Down” in his song “Stay with
Me” which resulted in Smith paying royalties to Tom Petty and Songwriter Jeff
Lynne (Kreps; Locker). Whether intentional or unintentional, the debate over
plagiarism vs. fair use is actually hurting music artists in terms of stifling
creativity and making the creative process more difficult.
Ever
since the Grand Upright vs. Warner Brother’s 1991 court case, there have been
very few court cases and few changes to the copyright laws. The laws haven’t
kept up with the technology we have today (Griff, Vieni), which is a huge part
of the problem. The problem with using the Upright music case is that while it
was a landmark case, the outcome wasn’t what everyone had hoped or expected.
The court decision left people with unanswered questions like: What is
protected under fair use? And what role does substantial similarity play
(Kravis 266)? While there have been several cases since then, a lot have
settled out of court, such as Smith and Petty did with regard to the similarity
of Smith’s “Stay With Me” (Fassler; Locker). While laws that apply to sampling
exist, when cases like this appear it becomes difficult to determine what is
covered under fair use and what is considered plagiarism since the laws have
grey areas. Our current laws are decades old and need updating especially as
sampling gets to be a more common practice (Griff, Vieni).
However,
this is not the only issue in regard to the practice of music sampling. Because
songs are being decided on a case-by-case basis using old laws, artists have to
be cautious about how they approach writing their songs, and getting clearance
to sample (Payne). Especially because the Upright music decision holds an
unintended consequence, because it did not clarify the specific issues with
regard to copyright law, and imposed criminal sanctions on those who violated it.
Due to this decision, artists may be discouraged from trying to obtain
clearance to use a sample. As it could in some cases become evidence of willful
infringement and can be used against them (Kravis 270). In order to even get
clearance to use a sample, you need to go to the publisher as well as anyone
else involved in creating that song, if the song you want to sample contains a
sample, you then have to go to the publishers of that song and over time the clearances
to obtain samples become almost impossible (Fassler).
Because
of the confusion with how sampling should be handled under copyright laws that
are decades old, sampling can be a tough practice for artists to navigate. They
could even be apprehensive to say who they are inspired by (Payne) seeing as
even the use of one significant note or set of notes is an infringement of
copyright law (Kravis 246). Copyright infringement can be tough to determine,
causing artists to have be overly cautious or mask their songs so the tune
sounds unrecognizable (Copyright Criminals). Those who are firmly
opposed to sampling claim it’s “more creative” to come up with something on
your own rather then ripping it from something else. However, even artists
recognize that it is almost impossible to create something that is one hundred
percent original, everything will be similar in some respect or another (Payne;
NPR Staff). Perhaps Kimbrew McLeod puts it best when he says, “musicians have
always copied each other, and have always transformed previously existing
compositions and recordings. There needs to be a balance” (Fassler). Once there
is a strict threshold on digital sampling in place, it will make life more
difficult for music artists, it would stifle their creativity due to the fear
of being legally responsible for having used a similar set of notes as another
artist. Kimbrew McLeod calls it “creatively and commercially untenable” in today’s
day and age (Fassler).
Bibliography
Copyright Criminals. By Kimbrew McLeod. Dir. Kimbrew McLeod and
Benjamin Franzen. 2009. YouTube. YouTube, 6 Aug. 2011. Web. 25 Sept.
2015. <https://www.youtube.com/watch?v=tIoR3PYpduo>.
Fassler, Joe. "How Copyright Law Hurts Music, From
Chuck D to Girl Talk." The Atlantic. Atlantic Media Company, 12
Apr. 2011. Web. 21 Sept. 2015.
<http://www.theatlantic.com/entertainment/archive/2011/04/how-copyright-law-hurts-music-from-chuck-d-to-girl-talk/236975>
Griff, Lawrence, and Kristina Vieni. "Music
Copyright Law Changes." Grant Thornton. Grant Thornton LLP, 30 July
2015. Web. 21 Sept. 2015.
<http://www.grantthornton.com/issues/library/articles/technology/2015/07-music-copyright-law-changes.aspx>.
Kravis, Randy S. Does a Song by Any Other Name Still
Sound as Sweet: Digital Sampling and Its Copyright Implications."
(1993): 231+. American University Law Review. American University
Washington College of Law. Web. 21 Sept. 2015.
<http://aulawreview.com/pdfs/43/43-1/kravis.pdf>.
Kreps, Daniel. "Sam Smith on Tom Petty Settlement:
'Similarities' But 'Complete Coincidence'" Rolling Stone. Rolling
Stone, 26 Jan. 2015. Web. 21 Sept. 2015.
<http://www.rollingstone.com/music/news/sam-smith--tom-petty-settlement-20150126>.
Locker, Melissa. "Sam Smith to Pay Tom Petty
Songwriting Royalties for ‘Stay With Me’." Time Magazine. Time, 26
Jan. 2015. Web. 21 Sept. 2015.
<http://time.com/3682314/sam-smith-stay-with-me-tom-petty-songwriting/>.
NPR/TED Staff. "Why Would More Than 500 Artists
Sample The Same Song?" NPR. NPR, 27 June 2014. Web. 21 Sept. 2015.
<http://www.npr.org/2014/06/27/322721353/why-would-more-than-500-artists-sample-the-same-song>.
Payne, Dan. "Can Any Piece of Music Be
One-hundred-per-cent Original?" Slugger OToole. Slugger O'Toole
Ltd, 17 July 2015. Web. 21 Sept. 2015. <http://sluggerotoole.com/2015/07/17/can-any-piece-of-music-be-one-hundred-per-cent-original-discuss/>.
Images From:
http://imgur.com/gallery/fk1UhJB
http://perezhilton.com/2015-01-26-sam-smith-stay-with-me-tom-petty-i-wont-back-down-songwriting-royalties-settlement
http://onenation.livenation.com/blog/sam-smith-tove-lo-american-authors-plus-more-set-for-vh1-s-you-oughta-know-concert
https://www.pinterest.com/pin/33003009744709564/
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