{"id":62,"date":"2023-12-12T08:41:08","date_gmt":"2023-12-12T13:41:08","guid":{"rendered":"https:\/\/sites.nd.edu\/wamfall23\/?p=62"},"modified":"2023-12-12T08:41:08","modified_gmt":"2023-12-12T13:41:08","slug":"copy-right","status":"publish","type":"post","link":"https:\/\/sites.nd.edu\/wamfall23\/2023\/12\/12\/copy-right\/","title":{"rendered":"Copy-Right?"},"content":{"rendered":"\n

Fair creation in the age of sampling<\/strong><\/p>\n\n\n\n

by Marcos Cisneros<\/em><\/p>\n\n\n\n

Copyright has become a controversial topic in today’s society resulting from the growing usage of one’s property without permission, especially in the music world. When artists create songs that skyrocket in sales and online listens, making famous and recognizable in their countries and around the world, the success can quickly evaporate if they wrongly created their piece with a snippet of another artist’s music. So what is copyright? Is it fair-usage or fair-game? What is the process of sanctioning someone who intentionally uses a snippet of another person’s song in their own work?<\/p>\n\n\n

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Let\u2019s consider the Estate of Smith v. Graham <\/em>case as an example. Based on Marissa Brown’s article<\/a>, rapper Aubrey Drake Graham released a song a part of his released album in 2013 titled “Pound Cake<\/a>.” Aubrey opens with a 35-second sample of “Jimmy Smith Rap<\/a>.” Smith’s group decided to file for a copyright infringement against Drake. In order to understand the legal implication, we need to know the process the court follows with a copyright infringement case.\u00a0<\/p>\n\n\n\n

Let’s start with Copyright Act of 1976 which is the current law that protects all “original works of authorship” when they are contained in a medium of expression, which means that the author will immediately have rights to the medium. If you were to write a book, you would immediately own a copyright to that book. The Copyright Act may not always be valid, however, since the Fair Use Doctrine, allows the unlicensed use of copyright-protected property under certain conditions. The following four factors can be used to determine if the use of the copyright-protected property is fair:<\/p>\n\n\n\n

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  1. Purpose and character factor<\/em>. The main question or concern is whether the new medium contributes\u00a0 an aspect with a purpose or character with the addition of the original medium. Other aspects are analyzed within this factor including whether the original medium was used for commercial reasons and if the new medium is “transformative.”\u00a0<\/li>\n\n\n\n
  2. The nature of the copyright factor<\/em>. At issue here is whether the work is the type intended for copyright protection, which can make fair use more difficult to settle. Within a copyright infringement case, the aspects that determine the nature of the work are whether the work is creative or factual and whether the work has been published in the past.\u00a0<\/li>\n\n\n\n
  3. The \u201cquantity\u201d factor<\/em>. There are two aspects within this factor: the amount of the medium taken and the quality of the amount taken. Within these aspects, the court will attempt to determine whether the person taking this amount took more than necessary and if for any reason it is considered an excessive amount under the purpose and character of use factor.<\/li>\n\n\n\n
  4. Value and promotion factor.<\/em> This is determined based on whether the snippet competes against the original medium in the marketplace. The court will examine whether the new medium would relieve the original artist’s revenues because the public purchases the new medium over the original medium. In addition, the court would also see whether other works using the original medium are impacted.\u00a0<\/li>\n<\/ol>\n\n\n\n

    These four factors may seem simple for the U.S court to follow when approached with a copyright infringement case. However, are these factors fair when they can be interpreted differently by everyone?<\/p>\n\n\n

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    Going back to the Estate of Smith v. Graham <\/em>case, the court decided that the usage of Jimmy’s piece was fair since the use was transformative, which was determined through the purpose and character factor. But the settlement raises the question “What sounds transformative?” The sample in Aubrey’s song may sound transformative to certain audiences. But it can become controversial when other individuals do not hear a difference in the sample between the original and new medium. This is where rulings can become questionable and seemingly arbitrary. In fact, the court did not spend a sufficient amount of time with the other three factors. Overall, Drake ended up taking the case home. But this does not mean that the decision was fair.<\/p>\n\n\n\n

    There are cases where the artist using the new medium pleads guilty to copyright infringement. In Pharrell Williams v. Bridgeport Music<\/em> Marvin Gaye\u2019s family sued Pharrell Williams, Robin Thicke, and Clifford Joseph Harris claiming that their produced song \u201cBlurred Lines\u201d copied Gaye\u2019s song \u201cGot to Give It Up.\u201d Based on Sonia Seeman\u2019s case study<\/a>, the court ruled in favor of Gaye\u2019s because \u201cBlurred Lines\u201d may not have sounded exactly like \u201cGot to Give It Up\u201d but still had a similar \u201cfeel.\u201d Again, one could ask whether the dating of these pieces contributes to what is considered the same feel since the genres of these pieces can vary over time. In addition, if the court settled this decision based on the first two factors of nature, purpose, and character, then the question arises whether \u201cBlurred Lines\u201d was intended to be creative and transformative.<\/p>\n\n\n\n

    This brings us to the problem of sampling: is a right to create and use samples? Are samples even a form or expression of art? Sometimes these questions are handled differently in different countries, depending on their traditional understanding of art. According to an article<\/a> by Chenguo Zhang, Germany’s Constitutional Court requires sampling to be seen as an “artistic expression and creation” so that it does not interfere with the rights of the original artist. Kraftwerk v. Moses Pelham<\/em> would be an example for this. When Moses Pelham used a 2-second sample from Kraftwerk’s “Metall auf Metall,” the complaint filed against him became a landmark case that had to settle the question whether sampling was an infringement of an individual\u2019s right since they found sampling to be a freedom of art. The court\u2019s finding could mark a push towards a potential lift of sampling restrictions, yet individuals may still face difficulties sampling as it may not be considered a form of art in other countries. Questions about the reason behind laws regarding intellectual property still linger.<\/p>\n\n\n\n

    It can be simple and direct to view copyright as a monetary issue with the usage of one\u2019s medium being less a aesthetic question of originality than one about profit. Moreover, this issue becomes even more complex when the right to free expression and artistic intention enters the picture. Is the court\u2019s settlement of Aubrey being transformative with his sample justified in an appropriate manner regardless of his criticism of Jimmy’s message about Jazz? Is it appropriate for Pharrell and other artists on the song \u201cBlurred Lines\u201d to continue to obtain revenue when the song technically takes away credit from Gaye\u2019s creativity in his piece? It seems likely that the current practice sampling will continue to be protected for the time being. That said, there won\u2019t be a hold on the controversies that will continue to arise from artists taking the risks to use another artist’s medium.<\/p>\n","protected":false},"excerpt":{"rendered":"

    Fair creation in the age of sampling by Marcos Cisneros Copyright has become a controversial topic in today’s society resulting from the growing usage of one’s property without permission, especially in the music world. When artists create songs that skyrocket in sales and online listens, making famous and recognizable in their countries and around the […]<\/p>\n","protected":false},"author":4737,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-62","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"_links":{"self":[{"href":"https:\/\/sites.nd.edu\/wamfall23\/wp-json\/wp\/v2\/posts\/62","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/sites.nd.edu\/wamfall23\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/sites.nd.edu\/wamfall23\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/sites.nd.edu\/wamfall23\/wp-json\/wp\/v2\/users\/4737"}],"replies":[{"embeddable":true,"href":"https:\/\/sites.nd.edu\/wamfall23\/wp-json\/wp\/v2\/comments?post=62"}],"version-history":[{"count":73,"href":"https:\/\/sites.nd.edu\/wamfall23\/wp-json\/wp\/v2\/posts\/62\/revisions"}],"predecessor-version":[{"id":239,"href":"https:\/\/sites.nd.edu\/wamfall23\/wp-json\/wp\/v2\/posts\/62\/revisions\/239"}],"wp:attachment":[{"href":"https:\/\/sites.nd.edu\/wamfall23\/wp-json\/wp\/v2\/media?parent=62"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/sites.nd.edu\/wamfall23\/wp-json\/wp\/v2\/categories?post=62"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/sites.nd.edu\/wamfall23\/wp-json\/wp\/v2\/tags?post=62"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}