Thursday, June 12, 2008

Copyrighted recordings are subject to fair use too, but too few act that way

Finally, perhaps, the RIAA and ASCAP's reign of overclaiming copyright by asserting the fee simple ownership of every last component of every last copyrighted recording and song is coming to an end.

I've never understood why recording artists tolerate a regime in which they pay to use the sample of another recording, no matter how brief. Art thrives on recognizable quotation. It would be pointless for art to quote something unrecognizable. Recognizable notes carry meaning and connotations that are the very product of their recognizability, and art depends on evoking large meanings from small pieces. Nor can anyone argue that the brief sample of one recording in another deprives the original of sales; if anything, bringing the old song back into consciousness through the effective "quotation" of one of its recognizable parts could only conceivably help sales of the original.

Then again, perhaps I do understand the toleration of the licensing system that exists for the use of prerecorded samples.
They bow to the RIAA, which (mis) states that "generally speaking, the use of any part of a song requires a license." (emphasis added) Thoughtless court decisions have endorsed the RIAA's position. As previously noted on this blog, paying for every last sampled note from a copyrighted song became industry practice after Judge Kevin Duffy in Grand Upright Music, Ltd v. Warner Bros. Records, Inc., 780 F. Supp. 182 (S.D.N.Y. 1991)(Duffy, J.), in a decision that did not even consider issues pertaining to fair use, enjoined the distribution of Biz Markie's third album because one of its songs sampled three words and the accompaniment ostinato of Gilbert O’Sullivan’s schlock hit “Alone Again, Naturally.” Duffy wasn't satisfied with a mere injunction, however: he referred the defendants to the U.S. Attorney's office for criminal prosecution and wrote in his opinion, like a preacher from the pulpit,"Thou shalt not steal." [Exodus, Chapter 20, Verse 15] has been an admonition followed since the dawn of civilization. Unfortunately, in the modern world of business this admonition is not always followed."

Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2004), compounded this folly, holding that the defendant had committed copyright infringement by using in his own musical recording a two-second sample from an earlier copyrighted recording, lowering the pitch, and looping the sample to extend it to 16 beats. Again, the court failed entirely to consider the First Amendment rights that must be balanced against maintaining the composer's incentive to create, the very core of the fair use doctrine.

The Biz Markie case, Grand Upright Music, is generally considered the reason industry practice is to pay for any and all recorded samples. Record companies certainly have no interest in challenging the existing regime. The recordings they own are held inviolate too, so why challenge the right of another recording company to require payment for any sample, no matter how small, no matter transformative its use is, and no matter how little impact it will have on the market for the sampled piece? Artists who would challenge the existing regime hardly have the financial wherewithal to challenge the industry and the enormously successful artists who benefit from it. Thus,
as Jonathan Lethem has written, "[a]lthough sampling was just a technological extension of the age-old process of learning through imitation, producers who use samples now pay up instead of trying to set precedents for fair use. "

This all goes in part to explain, I suppose, why
I am so adamant in my support of the producers of Expelled, despite my contempt for their message and my respect, admiration, and love for their adversaries in their copyright litigation. Free speech is free speech. I even supported the rights of Nazis to march through a community full of Holocaust Survivors (as, of course, did the U.S. Supreme Court).

Maybe, however, times are beginning to change:

Just when it seems like mashups are played out — or playing dead, thanks to litigious record labels — along comes Girl Talk (nee Gregg Gillis). For last year's album Night Ripper, the laptop mixologist used more than 250 samples from 167 artists. Raps by Ludacris rub up against a Boston riff, the Ying Yang Twins whisper over the Verve's "Bittersweet Symphony." As the album became an indie sensation, Gillis resigned himself to the inevitable cease-and-desist order. But it never materialized. "Labels are starting to realize that something like Night Ripper isn't going to hurt their artists," Gillis says. "If anything, it will promote them."

Yes, it's smart business. But business should not define the rights of artists and writers to use the resonant pieces of our culture to express their own points of view. It is absurd to repeat the oft-repeated canard that "[i]t is well established that using just a few seconds or bars of a musical composition violates the copyright in a work if the piece taken was the "hook'' or 'essence' of the original song." If the sample does not in fact evoke the original, there's no point in using the sample. It's the sample's very recognizability and its cultural resonances that make it a usefully compressed sign in the appropriating work.

If we depend on business to determine when sampling is permissible and when it is not, we'll never have samples in works the original artists don't like. If you support the teaching of intelligent design and you leave it to business to define your rights to sample music, you'll never, ever be able to use a John Lennon piece, no matter how seminal you believe it is in expressing the views you abhor. If you are Biz Markie creating a new work that rejects the sentiment and sappiness of Gilbert O'Sullivan's ouevre, you'll never be able to sample a Gilbert O'Sullivan work.

I wish I could tell Judge Kevin Duffy that "Thou shalt not steal" does not exhaust Old Testament wisdom.

The thing that hath been, it is that which shall be; and that which is done is that which shall be done: and there is no new thing under the sun. -- Ecclesiastes 1: 9 (KJV)

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