As we noted in the December issue, an appeals court dealt a surprising blow to longstanding musical practice last fall by ruling that even de minimis sampling from another song constituted copyright infringement. NYU's Brennan Center and the Electronic Frontier Foundation have now filed an amicus brief [PDF] urging reconsideration.
Restricting themselves to the narrowest necessary argument, the amici primarily argue that sampling such that an "ordinary lay observer" would not even recognize the appropriation should automatically be considered de minimis. Which seems right, of course, but much of the most interesting "sampling" relies precisely on the recognition. When Busta Rhymes or Jay-Z and Panjabi MC quote the Knight Rider theme song, the whole point is precisely to evoke the "feel" of the series and, in the latter case, to juxtapose a bit of iconic '80s western culture with traditional bhangra sounds. Or, to pick a less recent example, there's the dinner scene from Don Giovanni, in which the main characters listen to a medley of contemporary operatic "hits" such as Una Cosa Rara, until Giovanni's much put-upon manservant Leporello exclaims "I know that one all too well" after hearing a few strains from Mozart's own Nozze di Figaro, another opera featuring an oversexed aristocratic cad.
While the original decision here obviously deserves to be overturned, it seems too small a victory to protect sampling just in those cases where the sample is so tiny and altered as to be rendered unrecognizable. I don't expect anyone, after all, would have thought there would be an infringement case if, rather than sampling the three note loop at issue there, it had just been recorded in the studio anew—though it does seem perverse that the difference between legal and illegal activity should turn on the auditory equivalent of cutting-and-pasting vs. typing a quoted passage in manually. The truly creative uses of sampling involve quotation or reference, which depend upon recognition. A cultural world in which allusion is defined as theft seems an awfully impoverished one.