Paper 1: Music Sampling

Due: Sunday night, October 3, 2010. Your paper must be submitted electronically, either via email or through the Blackboard digital dropbox.

This topic is based on the following news item, from http://origin.avclub.com/articles/guns-n-roses-sued-for-uncredited-ulrich-schnauss-s,33744:

by Josh Modell October 6, 2009
According to Reuters, the British label Independiente and the U.S. arm of Domino Records have filed suit against Guns N' Roses and the band's label, Interscope/Geffen/A&M for swiping portions of compositions by semi-obscure German electronic artist Ulrich Schnauss for the Chinese Democracy track "Riad N' the Bedouins." Pitchfork has some links to listen to the tracks. Sounds to me like it's pretty clearly swiped, but I'll say this: I own and really like Schnauss' 2003 disc A Strangely Isolated Place, but I wouldn't have picked out the sample if it hadn't been pointed out. Which isn't to say he shouldn't get paid, of course.

The question here is to what extent Mr Schnauss should get paid, and why.

[Links from Pitchfork, above, to the sound files: Guns N' Roses, Ulrich Schnauss. At issue is the opening ~20 seconds. It's not the best example of sampling, because it's a rather atypical sound for GnR. Note that GnR used this opening only on their CD release; I did not find it in any of their live-performance examples on YouTube. GnR has insisted that they did nothing wrong.]

In the case Bridgeport Music v Dimension Films, the 6th Circuit Court ruled in 2005 that use without permission of a 2-second chord from a song by the Funkadelics constituted infringement. More specifically, they ruled that the de minimus defense (ie that the sample was "too small to matter") did not apply. However, the court left open the possibility of a Fair Use defense.
 
In your paper you are to address the following:
Note that the "party line" here is that any use of copyrighted material requires permission; this gives the rights-holder the opportunity to set a fee limited only by the law of supply and demand. Fair Use is the one exception to this. Note also that we are talking here about sampling that clearly has no effect on the market for the original, but there might be (and in fact is) a "secondary" market for sampling rights that is affected.

Here are a few issues you might wish to consider. When using sampling, what exactly is your obligation to the original artist? Is it simply a matter of acknowledging credit for the "homage"? Can the credit be implicit, or must the original artist's name be spelled out? Are artists really entitled to royalties when their work is sampled? Why?

For the Fair Use argument, what preconditions might be necessary to establish Fair Use? Must the sample be some form of homage? Must there be some sort of "transformative" use? Does electronic transformation count? Must the sample be recognizable? Not recognizable?

Focus on samples in the ~2.0-second range, not the 20-second range (there are plenty of samples in the 0.2-second range, but those are hard to recognize). Assume the sampling is taken from published recordings; ie the samples are not recreated in the studio.

In addressing the ethical components, make it clear whether you are arguing from a utilitarian perspective (what is best for all musicians, or all people), or a deontological one (what duty do musicians (or people) owe one another).

Sampling involves taking snippets of someone else's recorded work, and reusing them in your own work, possibly with some sort of electronic modification. It can involve words, chords, notes, melody, drums, rhythm, textures, other background, or whatever, and can be done in varying lengths. More information on sampling can be found at http://en.wikipedia.org/wiki/Sampling_(music).  At least some musicians believe that Fair Use does not apply, and so permission must be secured, and so the original artist may dictate any price. However, this stands in sharp contrast to most other understandings of Fair Use.

Your paper will be graded primarily on organization (that is, how you lay out your sequence of paragraphs), focus (that is, whether you stick to the topic), and the nature and completeness of your arguments.

It is essential that all material from other sources be enclosed in quotation marks (or set off as a block quote), and preferably with a citation to the original source as well.

Expected length: 3-5 pages (600+ words)