Paper 1: Music Sampling

Due: Friday, Sept 30, 2011. Your paper must be submitted electronically, either via email or through Blackboard.

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 artists like Mr Schnauss should get paid, and why. And note that, as further indicated below, the Schnauss-GnR case may be a bad example, because the sample is so blatant and so long. It's also just about copying a snippet of the original performance, rather than combining that sample with other material, or modifying the sample; see also http://www.myspace.com/girltalk/music.

Here are links (working Sept 2011) to the two compositions:
At issue is the opening ~20 seconds. It's not the best example of sampling, because it's a rather atypical sound for GnR, and it's also rather long. 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 1991,in Grand Upright Music v Warner, a district court ruled that clearly recognizable sampling constituted infringement. 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:
These two are related in the sense that Fair Use can be seen as an ethical use of copyrighted material, though not everyone agrees with this. Arguably, in fact, ethical use of copyrighted material may be more similar to de minimis use.

Note that the industry 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 in this specific case 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. The copyright law itself only refers (§107(4)) to "the effect of the use upon the potential market for or value of the copyrighted work", without making it clear whether the market for the entire work is meant.

Here are a few ethical issues you might wish to consider. When using sampling, what exactly is your obligation to the original artist? Must the sample be some form of homage? 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? What if the sampling is not about "homage" at all (as in the Schnauss case)? Are artists really entitled to royalties when their work is sampled? Why?

The basic Fair Use argument is that sampling is small and has no effect on the market for the original work. If you do not accept this argument entirely, what conditions might be necessary for Fair Use to apply? Must there be some sort of "transformative" use? Does electronic transformation count? Is sampling fundamentally a "productive" use, ie use that is associated with some benefit to society? Must the sample be recognizable? Not recognizable? When considering the effect on the market, should the secondary market for sampling rights count, or just the market for the original work?

When making Fair Use arguments, make clear your position on how you balance creators' rights with rights of the public.

In general, if you are in favor of sampling, you should respond to those who would say that it is unfair to the original musicians. Similarly, if you are against sampling, you should respond to the basic Fair Use argument above.

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)