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Proposing A New Copyright Framework For Sampling of Prior Music?

Why is the title a question? You are proposing.

-- By NicholasWillingham - 13 Mar 2015

Introduction and Restructuring Framework

Introduction

Hip-Hip was born not too far from Columbia, in the Bronx. One of the most widely recognized forms of hip-hop is rap music. Rap music was influenced by many other genres of music that were popular during its birth. The original rap music was instrumentally based on samples. The samples came from a wide variety of music including blues, jazz, funk, soul and disco. Before the commercialization of hip-hop in the early 1990s, sampling of these genres where without issue and the art form thrived. One of the first and most prominent sample issues involved MC Hammer’s track, You Can’t Touch This. Since that time, hip-hop has strayed from its original sound and style. Sampling increased the cost of production for rap artists who remain true to the original form of art. It has had the effect of pushing some of the best rap music underground. Rethinking the legal framework of copyright law and sampling could create an environment that would allow rap music to return to its origin.

Why do we need to rethink the legal framework? We could just declare that sampling isn't copyright infringement and let the matter go, right? It's just the relentless greed of monetizers who "own" lots of music that keeps us from seeing no problem at all.

Restructuring Framework

Length of Copyright Protection

Currently most music is under copyright for the life of the composer plus ninety years. This is mostly due to the efforts by Walt Disney World Corp., who has lobbied Congress to prevent the expiration of many of its own copyrighted works. Under a new framework, the copyright would only last for the life of the composer before being placed in the public domain, where any artists is free to sample the work without royalties. However, there would be a grace period where a prior work could not be sampled. The grace period would be one of either two options. The first option would not allow sampling until the artists next published work. This option allows the general public to appreciate the original and allows the original artists to enjoy the fruits of their labor without interference. The next option would be five years after the work is published. This allows works to be sampled when the artists leaves the industry but has not yet died. The grace period is a tradeoff between the current copyright law regime. The proposed scheme offers more upfront protection for less protection after the grace period.

Should there be a grace period before I can take a photograph of someplace someone else has made a movie? Are fair uses fair, or do they have to go to the back of the line and wait for expiration of someone else's turn?

One of the advantages of having a fair use defense, instead of "copyright limitations" is that we don't have to be shy about letting the other fellow cut his throat anytime he feels like chasing bad facts at the risk of his entire fortune.

Nature of Those Rights

During the grace period, an artists has absolute rights to their copyrighted work. No other artists is allowed is sample the work or use it. In exchange for an absolute grace period, the original artists would then accept reduced costs for later sampling of their work.

Would you advocate for rules giving a "grace period" for literary works before quotation would be allowed?

Should there be a period of so-called grace before jazz musicians can improvise on proprietary popular songs? Or is sampling a particularly seriously damaging form of trivial copyright infringement that it is desirable to pursue with the goal of temporary prohibition. Excuse me, but I must inquire: what the hell is going on here?

They also will trade off their rights to deny use of a sample. A huge issue with the current scheme is that prior artists have become difficult negotiators. Artists are still free to bring lawsuits against other artists who sample their music without paying royalties. In the long run, more artists would be able to profit from their work. A simpler process and regime will encourage sampling and payouts to original artists.

Categorizing Samples

Before establishing the cost of samples, there must be a characterization of how the cost of samples will be measured. There are several categorizes of samples and some are more deserving of payment than other samples. Below is an examination of how samples can be measured.

Nature of Samples

The nature of the sample is an important measure of how much a sample should cost. Under the proposed framework, there would be two categories that characterize the nature of the sample. Theses categories are primary and secondary. Primary samples are the samples that play a major role in how the sampled song is composed. The secondary samples are samples that compose less than a majority of how the song is composed. Examples are given below.

Length of Samples

There are two major categories based on the length of the sample. The first sample style is the repetitive samples that reoccur throughout the song. This type of sample is usually expressed by a form called looping. Looping occurs when an artists uses a ten to fifteen second snippet of a previous work and uses the snippet on a loop throughout the song. Looping would be categorized as a primary sample. The second sample style is a stand alone sample that uses just about ten seconds or so of a previous work. This type of sample can be broken down further into a couple of subcategories. The first subcategory is based on the voice of a prior artists. The second subcategory involves samples of melodies from prior works.

Restructuring Cost

Determining Cost

The cost of the sample will depend on whether the work was released as a single or with an album. The cost will be measured by how well song the song did within its own own genre. The genre is a better measure than across all genres because different genres have different appeals. It would be unfair to measure a jazz sample against a sample from pop music because pop music has a wider appeal. To give prior artists a choice, there would be three options. There would be a future royalties scheme, a flat rate royalty scheme and mixed scheme.

Payment Schemes

The future royalties scheme would allow the prior artists to collect royalties based on the popularity of the song once released. This scheme would allow the prior artists to gamble on the future popularity of the song. The flat rate royalty scheme would allow the prior artist to be paid upfront when the song is published. This scheme allows original artists to be paid upfront. The last scheme combines both schemes. The schemes would allow an artists to get paid between 1/4 or 1/3 of the flat rate fee and also collect royalties based on at same rate of future royalties.

You are trying to find some way to make the absurdity of "music owners" justifiable. But what results is not less absurd, if you try to imagine applying the same principles to other forms of cultural production. It's just the music industry trying to give itself airs again.

Sampling is fair use. End of story. If a couple of courts said so and a couple of courts of appeal agreed, thus capitally punishing the bullshit aspirations of the music companies stupid enough to go to court about it, we'd be finished. The human race could get on with the business of remixing music, and every existing recording, as well as every future recording, would bear a tiny "tax" to make all the resulting creativity possible. Naturally, in a highly concentrated industry, the twelve guys this would inconvenience can be heard shouting all the way from LA. So what?

The next draft should present a good reason why this is a problem in need of solution instead of a rent-extraction scheme in need of abatement. It should explain why whatever is proposed is consistent with the treatment of other forms "works of authorship" subject to copyright "protection" or "manipulation," as the case may be. It should at least be able to make a structured case that the result is better for society than a simpler and less regulatory allocation of the rights to create and destroy.