(post authored by Communications Associate Kevin Erickson and Communications Intern Olivia Brown)
Today is World Intellectual Property Day, an annual celebration of the role intellectual property plays in encouraging innovation and creativity. We encourage you to check out one of the many events happening all over the globe.
Debates around IP issues have become extremely polarized in recent years, and often, it seems the choices presented are copyright maximalism on one hand and copyright abolitionism on the other. As a result, some folks might find it confusing that FMC has proudly celebrated both World Intellectual Property Day and World’s Fair Use Day — a celebration of the provision in copyright laws that allows for certain uses of copyrighted material without express permission from copyright holders.
As an organization that advocates for a sensible artist-centric approach to copyright, we believe IP protection and fair use should be like chocolate and peanut butter: two great tastes that taste great together. Call it copyright pragmatism: a belief that copyright law should include fair use provisions that allow for vibrant creative expression, but also provide a balanced means for creators and other copyright owners to protect their exclusive rights.
To imagine what this might look like in practice, we can think about two recent lawsuits involving one of our favorite groups, The Beastie Boys.
In May 2012, the Beasties were confronted with a sampling lawsuit filed by label TufAmerica, an imprint of hip-hop and legacy label Tuff City Records. TufAmerica claimed that the Beastie Boys used samples from old Trouble Funk recordings — TufAmerica holds the rights to these songs — in 1986’s License to Ill and 1989’s Paul’s Boutique. Tragically, the day after the lawsuit was filed, Beastie Boy MCA (Adam Yauch) lost his battle with cancer.
The Beastie Boys filed a motion to dismiss the case, arguing that the Copyright Act’s three-year statute of limitations should prevent TufAmerica from filing suit, since the samples in question were used decades ago. Perhaps more importantly to the greater community of artists who use sampling in their work, they also argue that since TufAmerica itself claims that the samples were “effectively concealed” and unidentifiable to listers, there “can be no substantial similarity” between the works that would warrant a lawsuit.
TufAmerica contends that the three-year statute of limitations usually doesn’t take effect until the infringement is discovered. Since the samples were only detectable because of new musical identification technology, the argument is that they could not have possibly been discovered prior to this juncture.
These types of cases aren’t uncommon. Ever since sampling became a common fixture in rap and hip-hop music, some labels and other music entities have begun amassing old collections of rights to sound recordings and compositions for the primary purpose of suing current artists who use even de minimus samples of older works. In some cases, they don’t even release music but simply rely on collections of old musical rights and lawsuits to generate income. While TufAmerica does release new music, they mainly are typically reissues; the company also does business licensing samples. In a 1994 interview with Billboard magazine, Aaron Fuchs, owner of Tuff City records, noted how he “noticed that rap producers repeatedly were sampling the same records, some of which were on small indies whose masters Fuchs purchased.” He went on to snag portfolios of rights from several labels, and since the ’90s, has filed lawsuits with several prominent artists (Kanye West, LL Cool J, and EPMD) over samples from old recordings. While the samples used by these artists were more recognizable, suing artists who used only brief or heavily modified snippets, like the Beastie Boys, could seen as predatory and inhibiting. In this case, “Big Tony” Fisher of Trouble Funk — who had even toured with the Beastie Boys in the past—wasn’t even aware that the Beastie Boys had used small samples from their songs.
Interestingly, the Beastie Boys have been on the other side of the table, with a copyright infringement lawsuit of their own. Last summer, the Beastie Boys and the executor of MCA’s estate sued Monster Energy Drink for using their music without permission in a downloadable DJ mix. The allegation reads:
“Monster caused a link to a downloadable audio recording (the “MP3”) embodying a 23-minute medley of excerpts from the Beastie Boys Sound Recordings, the Beastie Boys Musical Compositions and the sound recordings and musical compositions comprising the additional Beastie Boys MP3 Copyrights … in conjunction with the Video, together with an offer that the MP3 was available for free download.”
The band is concerned not only about the lack of appropriate licensing, but about the fact that some may interpret the mix as an endorsement of Monster Energy Drink; the late MCA’s will forbade the use of his music in advertising.
Viewed from either extreme point of view, the Beastie Boys’ position might be confusing. A copyright maximalist might share the Beasties’ objection to the unlicensed use of their material but also object to their uncleared use of the tiny Trouble Funk snippets. And a copyright abolitionist might applaud the Beasties’ defense of sampling but be puzzled by their attempt to sue over an unlicensed DJ mix.
But a copyright pragmatist might find the Beasties’ position to be something approaching a sensible middle ground, allowing artists to defend their exclusive rights (particularly in a highly commercialized context) but also allowing for the creative expression enabled by genuinely transformative use. (For a more extensive discussion of these topics, check out Kembrew McLeod and FMC Board member Peter Dicola’s excellent book, Creative License: The Law and Culture of Digital Sampling.)
Of course, the devil is always in the details: It is important for artists to be able to prevent commercial uses of their work for which they do not approve, but where should the line be drawn? Should all copyrighted material, no matter how undetectable, be subject to licensing fees? Should the de minimis argument stand? Is there a compulsory license solution? Could a comprehensive copyright database help streamline the licensing process?
In terms of basic guiding principles, we think a respect for intellectual property and a respect for fair use in creative expression should always inform the discussion. Given that the House Judiciary Committee will now be reexamining the copyright act, it’s important than ever to keep this balance in mind.
(Image by WikiLaurent used under Creative Commons license)