sampling-music-headphonesPablo Picasso once said that “good artists borrow, great artists steal.”1 With respect to the cacophony that has arisen concerning copyright law, particularly in the age of digital sampling, an interesting legal issue arises regarding where the line is between musical “remixes” versus “piracy” and what the implications may be, in either event.

Of late, Britain may be the most newsworthy country to grapple with the legal problem known as “did they really ‘steal’ the music,” but it is by no means the first, and copyright law in the musical context is constantly a mixed source of agitation and amazement among U.S. attorneys, judges, and musicians.  In the UK, Brooklyn-based producer Harry Bauuer Rodriges recently released an album that, due to the power of viral technology and a massive dance craze, topped the Billboard Charts, with its most popular song, “Harlem Shake.”  See Dorian Lynsky, “Harlem Shake: could it kill sampling?,” The Guardian (Mar. 13, 2013).

At issue?  Bauuer’s choice to sample certain artists’ work without first licensing them.  See id. As The Guardian explains:

Had Baauer known a year ago that this would happen, he would doubtless have been more careful, but nobody saw it coming. The record got away from him, upending his assumptions and making him yet another name in the long and controversial history of sampling: a bewildering grey area shaped by legal confusion, financial necessity, technological advances, arguments over artistic freedom… .  Id.

Certainly, debates over whether a song (or a remix) violates copyright laws are not new, but many of the nuances are.  In the case of the “Harlem Shake,” Bauuer arguably had implicit, though not express permission of the artists whose work he used in that track.  See id.

To resolve the controversies at play, attorneys and judges must ask themselves an important question: Who does one ask to get the “correct” (or perhaps most correct) answer?

Ordinarily, the intuitive response would be accurate: Ask the experts.  However, with the specific circumstances endemic in the music industry, attorneys on either side must hit the pause button and ask themselves just who the experts are.  Certainly, musical producers and highly popular musicians have a large “stage presence” and quite a bit of articulate information, but are they objective?  Are they able to maintain their composure and observe the rules of decorum in a court of law?  Will their fan base detract from the points they are trying to make?

At the 22nd Annual National Expert Witness Conference in Chicago (in April 2013), one expert discussed the very aspects at issue here before a large panel audience: Copyright law in the music industry and his experiences therein.  However, though the audience paid careful attention, one thing was clear: The expert speaking wasn’t commanding a crowd through his unobtrusive tweed suit or mezzo soprano voice but rather, through the substance, form, and content of what he had to say.

While “crowd pleasers” have their place, smart attorneys use those who can pass judicial muster before even considering so-called experts who can bring an entourage.  Is there a time and place for true musicians and performers to testify?  Absolutely, though the best copyright attorneys in the music industry will generally joke that the best time for a large, musical presence to take the stand is in his or her own defense, and even then, on a fairly limited basis.

The best experts are those who understand the foundations of music, particularly hip-hop and electronic music, as these genres thrive on and, arguably survive on, digital sampling. See, e.g., Eric Farber, “Book Reviews: Creative License: The Law and Culture of Digital Sampling,” California Lawyer (Sept. 2011).  Experts should also know that, as a strict matter of law, sampling another artist’s work without a license is, in fact, copyright infringement.  Id. However, there are exceptions and gradations, even within this strict, legal presumption.  Licenses are not needed with so called “free-ware,” which, in this context, should be understood as music that has been released with the explicit intent of the artist that it NOT be subject to copyright laws.  Experts who know this type of information, are an asset to any copyright attorney, whether the cases ever come to court or are privately settled.

Attorneys, who work in the music industry and concentrate on copyright law, need only keep a few principles in mind.  First, consider the source(s):  Where did the music that was sampled originate?  Was the sample licensed?  Did the “original artist” consent to the sampling?  Was there truly a person or group of people who could be considered, in any standard way, the “original artist”?  Second, choose the best experts.  Follow the legal trends, not the musical ones (even if you do have the “Harlem Shake” in your iPod).  Retain musical and copyright experts who exude decorum, professionalism, and competence.  Seek out experts who appear as objective and learned as possible.  Look for experts who know, not only about copyright law, but also about the music industry’s history and the history of sampling.  Few attorneys know that jazz music, a commonly recognized genre, originated from an African group of musicians called the Griots.  See. e.g., Ed: James L. Conyers, African American Jazz and Rap: Social and Philosophical Examinations of Black Expressive Behavior (2007). Did jazz musicians beg, borrow, or steal the music of their predecessors?

This last question is relatively unimportant for the average, competent musical copyright expert or attorney to know.  However, the principles outlined herein are crucial, particularly for experts, attorneys, and judges grappling with how to treat music that contains digital samples and is in the copyright law context.  Paying heed to the trends, the laws, and the history of the music industry will behoove the legal community as a whole, which is music to everyone’s ears.

By: Kat Hatziavramidis, Attorney-at-Law

1 This quotation can be found at Brainy Quote,