Sampling as a Secondary Orality Practice and Copyright's Technological Biases

By Chen, Shun-Ling | The Journal of High Technology Law, January 2017 | Go to article overview

Sampling as a Secondary Orality Practice and Copyright's Technological Biases


Chen, Shun-Ling, The Journal of High Technology Law


Table of Contents    I. Introduction                               208  II. The Exclusion and Inclusion of      Sound Reproduction in US Copyright      Law                                        213      A. Copyright, and the         Technologization of Word                213      B. Mechanical Reproduction and         the Technologizing of the Sound         215      C. Sound Recording as "Writing?"         Copyright's Technological Biases        222 III. Sampling, Secondary Orality and      Copyright                                  232      A. Sampling as a Secondary         Orality Practice                        233      B. Sampling, Authorship and         Aesthetic in the Remix Culture          235      C. Why Focus on Copyright's         Technological Biases?                   241  IV. Sampling on Trial                          245      A. Fair Use Requires Criticisms         Must Be Textual and Make a Direct         Comment                                 246      B. De minimis Defense for         Sound Recordings?                       252      C. More Room for Making Tributes--Digital         Samplers as Quoting         Machines                                257      D. Is a Sampling-friendly Fair Use         Doctrine Possible?                      260   V. Conclusion: Secondary Orality, Remix      Culture and a Disclaimer                   264 

I. Introduction

Sampling--the practice of taking small pieces from an existing recording of musical works or other sounds, adjusting their tempo and pitch, and remixing them--first appeared in the 1960s as part of DJs' innovative and skilled ways of using analog technologies. (1) In the 1980s, with the introduction of digital samplers, sampling gained more popularity as a method of music production. (2) Using sampling as a technique, musicians build on existing sounds, reinterpret them, engage in a conversation with fellow musicians of various generations, and develop motifs that can be very different from any of the originals they sample. (3)

Although sampling requires much imagination and skilled execution, it has often been dismissed as an act of stealing, or a sign of low originality. (4) For a long time, the only Grammy Awards category allowing songs with prominent samples was the "best rap song." (5) But sampling has become such a common method in music production and composition that recently the Recording Academy changed this rule. (6) Starting in 2015, songs with prominent samples can compete in other categories, including "Song of the Year." (7) Using sampling as a method of songwriting is finally no longer a reason to be refused the highest honor in the industry. (8) Bill Freimuth, vice president of the Recording Academy, when explaining this transition, commented that sampling is an old and common practice, and the rules should reflect the current music landscape. (9) Freimuth suggested that even great composers such as Bach and Bartok "sampled" Vivaldi and Hungarian folk music: "[U]sing samples was just part of the craft, it wasn't really cheating in any way, and it wasn't a lesser form of songwriting." (10)

Nevertheless, the U.S. courts have not been very receptive to sampling. (11) In 2005, the Sixth Circuit ruled that while musicians may use a de minimis defense for sampling a musical composition, there is no de minimis defense available for sampling sound recordings. (12) In 2009, the Sixth Circuit ruled that paying homage by sampling is not a fair use. (13) In both cases, the disputed samples were works of George Clinton. (14) He has disapproved the copyright holder of his recordings, Bridgeport Music Inc., for going after sampling musicians aggressively, commenting: "The DNA of hip hop has been hijacked, leaving many artists across generations in needless hardship." (15)

Following Tricia Rose, professor of Africana Studies and a cultural critic, this article sees sampling as a practice in secondary orality--orality mediated by technologies that allow one to store, retrieve and distribute sound. …

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