Creative License: The Law and Culture of Digital Sampling

Creative License

Sampling is a music-making technique that incorporates a portion of a previously existing sound recording — sometimes in an altered form — into a new work. While sampling and mashups have become part of the musical lexicon — thanks in large part to the development of digital technologies that allow artists to splice, mix and mashup with relative ease — the practice remains contentious as it represents a creative use not historically considered by copyright law. Unlike recording a cover song, using samples of an existing piece of music to create a new musical work implicate not only the interests of the original composition’s creators, but also the copyright holders of the sound recordings.

Includes interviews with

George Clinton
Clyde Stubblefield
Hank Shocklee
Chuck D
Harry Allen
Pasemaster Mase & Posdunos, De La Soul
Mix Master Mike
Kid 606
Mark Hosler & Don Joyce, Negativland
Lloyd Dunn, the Tape-Beatles
Eyedeas & Abilities
Raquel Cepeda
Mr. Len
Tim Love
Prefuse 73
Shock G, Digital Underground
Drew Daniel & M.C. Schmidt, Matmos
Sage Francis
Mr. Dibbs
Saul Williams
Miho Hatori, Cibo Matto
Matt Black of Coldcut
Paul Miller aka DJ Spooky
DJ Vadim
Bobbito Garcia
Twick, graffiti artist
Eothan Alapatt, Stones Throw Records
Mark Kates, formerly of Grand Royal
Andrew Bart
Greg Tate
Jeff Chang
Joe Schloss
Whitney Broussard, music lawyer
Dina LaPolt, music lawyer (clients include Tupac’s estate)
Walter McDonough, music lawyer
Shoshana Zisk, music lawyer
Ken Freundlich, music lawyer
Anthony Berman, music lawyer
Michael Hausman, music manager (Suzanne Vega, Aimee Mann)
Danny Rubin, sample clearance expert
Pat Shanahan, sample clearance expert
Bill Stafford, publisher-side clearance expert
Tom Silverman, Tommy Boy
Dean Garfield, MPAA
David Sanjek, music historian, BMI
Lawrence Ferrara, musicologist at NYU and sampling expert witness
Siva Vaidhyanathan, NYU
Peter Jaszi, law professor at American
William Terry Fisher, Harvard
Jane Ginsburg, law professor at Columbia
Lawrence Lessig, Stanford
Mia Garlick, Creative Commons

Over the past 20 years, guided largely by landmark court decisions such as Grand Upright and Bridgeport, an ad hoc sample license clearance process has developed through which samplers obtain permissions and negotiate licensing fees with copyright holders. While this clearance process has led to revenue for some artists whose work has been licensed and allows the original creator to say no to uses he/she may find objectionable, it remains a source of frustration for many sampling artists, who find it cumbersome, time-consuming, inefficient and expensive.

How can the law balance the interests of original artists and copyright owners with those of new creators and a public hungry for sample-based music? What would constitute “fair use” uses in this environment?

Creative License: The Law and Culture of Digital Sampling provides a comprehensive, interdisiplinary look at the issues at the intersection of culture, creativity, compensation and technology. Co-authored by Kembrew McLeod and Peter DiCola, with contributions by Jenny Toomey and Kristin Thomson, the book includes interviews with over one hundred stakeholders in the sampling culture — from samplers, to attorneys, to license clearance experts, managers and record label owners. It examines the analog history of sampling, bringing an informed economic and legal analysis of the sample license clearance process in line with how the system works. In the final chapters, the authors examine a handful of proposals that would streamline the licensing process, but each “solution” has its own costs. Is it possible for society to achieve a balance that allows creativity to flourish but also fairly compensates original creators?

Creative License will be published by Duke University Press in 2011.

About the Authors

Kembrew McLeod is an independent documentary filmmaker and a media studies scholar at the University of Iowa whose work focuses on both popular music and the cultural impact of intellectual property law. Associate Professor McLeod has written refereed journal articles on copyright and music, and has published two books on the subject: Owning Culture: Authorship, Ownership and Intellectual Property Law (Lang, 2001) and Freedom of Expression®: Overzealous Copyright Bozos and Other Enemies of Creativity (Doubleday, 2005), which received the Oboler book award from the American Library Association. A feature length documentary about digital sampling titled Copyright Criminals, produced by McLeod and Benjamin Franzen, debuted at the Toronto Film Festival in 2009 and was included in PBS’ Independent Lens Series, with a national TV debut in January 2010.

Peter DiCola is an assistant professor of law at Northwestern University. He received a Ph.D. in economics at the University of Michigan in 2009, and his J.D. magna cum laude from the University of Michigan Law School in May 2005 and later served as a law clerk to the Honorable Thomas L. Ambro of the United States Court of Appeals for the Third Circuit. While in graduate school, he worked with the Future of Music Coalition as Director of Economic Analysis from 2000–2004 and served as full-time Research Director from 2005–2006. He is the co-author, with Kristin Thomson, of Radio Deregulation: Has It Served Citizens and Musicians? (2002) and the author of False Premises, False Promises: A Quantitative History of Ownership Consolidation in the Radio Industry (2006).

For more information: kembrew [at] kembrew [dot] com