If We Want Good Music, We Need To Let People Sample Freely
‘3 Feet High and Rising’, the 1989 debut album by legendary rap group, De La Soul, was released on streaming services last month to exasperated fanfare.[1] For decades, fans of De La Soul had to go to lengths to listen to the group’s pre-2004 catalog.[2] If you weren’t in possession of a physical CD, record, or cassette, you had to listen to De La’s catalog through low-quality YouTube playlists or sketchy download links.[3] This begs the question: if De La Soul is one of the most influential rap groups of all time, why is their debut album just now being released digitally? The answer? Sample clearance.
Without sampling, there is no hip-hop. Sampling is fundamental to the entire fabric of what hip-hop is. And for music-nerd-law-students like me, sampling represents an eternal battle between the law and artistic expression. “A sample is a snippet of an existing music recording, which is cut out and re-used in a new piece of music.”[4] Sampling, naturally, is the act of incorporating a sample into your music. A sample can be anything from a drum loop to a vocal chop. Producers chop, stretch, reverse, and rearrange these samples and warp them beyond recognition to create a completely new sound.[5] Early hip-hop pioneers would loop funk samples while MCs rapped over them. One of the earliest examples is The Sugar Hill Gang’s “Rapper’s Delight,” the first hip-hop single to reach the Billboard Top 40.[6] It sampled Chic’s “Good Times.”[7] Many of today’s biggest hip-hop artists employ sampling. [8] Even if you don’t know what sampling is, some of your favorite songs undoubtedly use samples.
The biggest hurdle to sampling, however, is sample clearance. “Sample clearance is the process of obtaining permission to use [samples].”[9] Artists must obtain permission for the “use of both the master (the actual recorded audio) and for the composition (the underlying musical work) of a song, sound, or performance.”[10] This means that in order to use a sample, you have to get the permission of the copyright owner of the composition (typically the publishers or the writers and composers), the copyright owners of the master (typically a record label), the performers, and the writers.[11] Sample clearance can be costly at between $4,000-$20,000 per sample as well as a portion of royalties.[12] This can add up when a song consists of several samples and an album consists of quite a few of these songs. If an artist doesn’t clear a sample, the copyright owners can sue the artist for infringement and request injunctive relief or remedies.[13] Either way, sampling can prove to be a costly affair.
De La Soul’s debut was kept off streaming services because it was stuck in sample clearance limbo. The record is filled to the brim with samples and was delayed due to a dispute between the group and their former label, Tommy Boy Records, about who would pay for the uncleared samples.[14] Though a recent deal with independent music company, Reservoir Media, has resolved these financial issues, several songs on the record had to be rerecorded without the original samples “because the original owners couldn’t or wouldn’t clear them.”[15] This is not an uncommon occurrence in the world of music today. The late rapper Mac Miller’s 2014 mixtape Faces was re-released on streaming services in 2021. Many fans noticed that the sample-heavy project was missing many of the samples that appear in the original version.[16] The same thing happened with the re-release of UK genre-bender Jai Paul’s leaked project Leak 04-14 (Bait Ones).[17]
Article I, Section 8 of the Constitution establishes the intellectual property clause, which secures creators the exclusive right to their respective writings and discoveries.[18] But it also states that the goal of this clause is to “promote the progress of…useful arts.”[19] By stifling artists’ ability to create through sampling, it might be possible that the intellectual property clause is completing the exact opposite goal.
In an article for Slate last month, Dan Charnas proposed that it’s time to legalize sampling.[20] He mentions that popular music has been recycling sounds for generations.[21] In jazz music, artists are constantly making their own versions of past compositions. Just search up the jazz standard “Misty” on Spotify and see how many hits you get. Even parodies were deemed fair use by the Supreme Court in Campbell v. Acuff-Rose in 1994.[22] However, sampling has been “judicially equated with theft,” leaving artists to engage in a “tortured clearance process.”[23] In order to promote the progress of useful arts, Charnas proposes that we need a clearer, broader conception of fair use and an expanded compulsory license law––effectively legalizing sampling in music.[24] As a hip-hop superfan and a law student with a semester of Copyright Law under my belt––I tend to agree.
Footnotes
