Patents? What are those?

[Tim Walters]

At 3:07 PM 11/16/98, Bill Layer wrote:
>The
>industry has basically declared (for pratical, legal reasons only) that it
>is essentially legal to steal 10 seconds of someone's song, for your own
>use.

Sorry, this is a myth.  If you hear a recognizable sample in a release,
it's either been paid for, or the artist is taking the risk of ending up in
court, out of penury, ignorance, reliance on a mutual underground ethic
(the way rap groups used to sample each other in their answer records), or
an attempt to make a deliberate stand on behalf of samplers' rights a la
Negativland.  And yes, the original artist can refuse to allow sampling;
many records have been delayed because a crucial sample couldn't be
cleared.

The courts have yet to rule on whether short samples can be considered
"fair use".  The famous 2 Live Crew decision (which gave much more latitude
to construe parody as fair use) didn't mention sampling.  No one wants to
be the first to lose such a case, so most artists (in the mainstream of the
music industry, at least) pay royalties in advance.

>This seems fairly reasonable, until you look at situations like MC
>Hammer 'can't touch this' vs. Rick James 'superfreak'. Would any of us
>consider that situation as anything less than outright plagarism? How would
>you feel about creating the ultimate sample, and hearing it one day as the
>bulk of some industry giant's latest 'track'?

If I made as much money off the deal as Rick James (or his record company,
as the case may be) did, I'd be quite pleased.  The Beastie Boys got their
big break when somebody used a sample of one of their early punk songs in a
commercial; they sued and won.

Obviously, I'm not addressing the moral issues here, which I think are
complex and go way beyond simple analogies to theft.  My favorite
sample-based work of art is still Max Ernst's 1930-or-so "collage novel" A
WEEK OF KINDNESS.  These issues aren't really new; they're just in vogue.

And patents, I know from nothing.

Tim Walters
coredump at slip.net