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Copyrights Cost Creativity

New book: Think again about copyright laws’ role in protecting music

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March 24, 2011 | by Hilary Hurd Anyaso

CHICAGO --- The late 1980s and early 1990s represented the “Golden Age of Sampling” in the music industry. Hip-hop groups such as De La Soul, the Beastie Boys and Public Enemy made music with snippets of existing music without many creative restrictions or copyright worries. 

But that is far from the case today according to Peter DiCola, assistant professor of law at Northwestern University School of Law and co-author of a new book, “Creative License: The Law and Culture of Digital Sampling” (Duke University Press, March 2011).

As hip-hop’s increasing popularity led to platinum sales, music copyright laws and business practices became much stricter -- and creativity has paid the price, according to the book’s co-authors, DiCola and Kembrew McLeod, associate professor of communication at the University of Iowa.

“Our book is about what happens when someone tries to obtain a license for a sample, how that process can go wrong, and why it’s so difficult to obtain a license,” DiCola said. 

The book looks at the impact of copyright expansion in recent decades, with smaller and smaller pieces of larger works now protected.

The book is meant to help people better understand the complexity of copyright law from the perspectives of both the recording artist and the copyright owner. “Sometimes licensing allows both the copyright owners and the sampling musicians to thrive,” DiCola said. “But in other situations, licensing is a roadblock to creativity.”

In the past, innovative artists who sampled dozens of pre-recorded songs per track in a process called collage, essentially making the sampling unrecognizable, rarely sought permission from the song’s copyright owner to use his or her works. 

“By 1991, it became settled that you had to license all samples to participate in the commercial record industry,” DiCola said. “As we learned about the details of the rights-clearance process, it became clear that you need a lawyer to navigate this stuff.” The authors also found that even the best lawyer could not obtain licenses for true collages of multiple samples. “Certain records that you used to be able to make are literally impossible to make now.”

The primary reasons have to do with licensing fees and the music business’s reluctance to take risks. Six-figure payments to copyright holders are the norm. And the “clearance culture” of the industry, where permission must be granted for everything, makes licensing extraordinarily difficult, DiCola said.  

Bridgeport Music v. Dimension Films is a case that best illustrates his point. The court ruled that any sample, no matter how small it is – it does not have to be recognizable – is copyright infringement if not licensed. “The Court of Appeals for the Sixth Circuit wrote, ‘Get a license or do not sample,’” DiCola said.

The case is built on the theory that it is good to have strong property rights. “Many in the field feel that position was wrong as a matter of doctrine and policy,” he said. “But the case hasn’t been overturned, and, six years later, there is not a case contradicting it yet.”  

The book’s proposals for reforming the sample licensing system include an authentication database, which would not only contain a copyright holder’s contact information, but also could handle flow of money between sampling musicians and copyright owners. The database could provide a formula for distributing licensing revenue. It might also include standards for which samples could be used without charge.