Unfree Samples


Writing at TNR Online, David Adler insinuates that the sampling ruling I mentioned here last month, holding that even de minimis use of recorded material in a new song is infringing, isn't as big a deal as it's been made out to be:

But is the decision really so radical? Bob Power, a producer and recording engineer who has worked with The Roots, A Tribe Called Quest, and countless others, reacted to the court's main conclusion ("Get a license or do not sample") with a shrug: "I say the same thing to my artists." Patrick Dillett, whose engineering credits include Queen Latifah and the late Notorious B.I.G., said: "In theory this is a big case, but in practice the spirit of this ruling is already being followed. … Most legitimate artists and labels have long toiled under the 'better to license than to litigate' banner." Indeed, the big labels now have sample clearance departments. Power noted that for a number of years, his own contracts with labels have required that he accept responsibility for any unauthorized samples.

Well, that's great if you're already signed to Sony, I guess. But I think this misses the point to a certain extent. What I like about a freer sampling regime, one that has room for poor ol' fair use, is this: Maybe I can barely plunk out "Nightswimming" on a piano, and maybe (make that definitely) I can't afford a professional studio or backup band, but I can take software like Sound Forge or Reason and remix a genuinely novel composition, using centuries of musical tradition as the raw material, on a desktop machine. Now, I don't think established artists should have to fork over a licensing fee any time they want to use a couple notes from an old funk track, especially when they're so altered as to create a subtantially original sound, but that's not the biggest problem I have with the ruling. Rather, it's the potential to chill the explosion of creativity from talented amateurs that technology's making ever more widely available. Incidentally, check out Three Notes and Runnin', a little creative protest insipired by that sampling ruling.

Update: Reader dhex's own contribution is here.