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The newswires were buzzing last week about the “sudden” appearance of Beatles’ riffs in some new hip-hop songs by the Wu-Tang Clan and Ja Rule. This was touted as some kind of seismic shift in the attitude of the publishing company that owns the songs, Sony/ATV, in their loosening of the reins on the fabled catalog.

But it wasn’t such a big deal. Jay-Z was granted riff-rights in 2003 for a track on The Black Album, and Sony/ATV has been licensing songs for the occasional advertisement and movie for years.

What it does point out, though, is the ridiculous, draconian, and anti-creative nature of music licensing, especially as it pertains to sampling existing recordings.

Where to start? Hip-hop was built on sampling. Two turntables and a microphone on a Bronx basketball court block party in 1978; what was on the turntables? Other peoples’ hit records, that’s what. In the intervening years, though, publishers and record companies have become increasingly restrictive, some would say greedy, with their “properties,” cutting-off the access to these pre- existing works to all but the most wealthy.

Pay attention now. When a bit of a recording is nicked for a new tune, there are two copyrights that are being used: one is related to the songwriting, the composition; the other is related to the performance, the recording. Typically, the rights to the composition are controlled by a publishing company (which pays royalties to the songwriter) and the rights to the recording are owned by a record company (which pays royalties to the recording artist).

The law provides that anybody can do their own recording of a song, so long as they pay a compulsory license fee (also known as a “mechanical license”) to the publisher of the song. That royalty is currently about nine cents per distributed copy. But this compulsory license only applies to cover versions of an entire song, with the melody and lyrics more or less intact; it doesn’t apply to using just a part of a song as a building block for a new song. And it also doesn’t apply to the use of a sample of a recording, of using somebody else’s performance in a new song.

This means if you want to cut and paste a chunk of an existing recording into your new song, you’ve got to get permission (and a license) from both the publisher and the record company. And since there’s no compulsory license, these entities can charge whatever they want for these licenses. Or they can just say no altogether.

And that’s a problem.

A few years ago I had a client come in with a truly breathtaking recording, constructed partially out of samples from three 30- to 40-year-old recordings, along with a bunch of added instruments and vocals. The client was looking for a record deal, and wanted to release a track to radio and on the Internet to get some buzz going. And the client wanted everything to be totally legal. It was my job to try to get the licenses for the three samples. For each sample, I had to determine the current publisher and the controlling record company, which took some sleuthing. Then I had to try to get the licenses. One publishing company would only grant me a license based on 100,000 unit sales, demanding a $5,000 cash payment. One record company never responded to my calls, e-mails and letters. One publisher simply denied my request (after a six-week wait and countess phone calls), without telling me why.

Interestingly, not one of the six entities I tried to deal with asked to hear the track that my client had created. And it was, in my opinion, a potential hit, a track of real beauty and creativity. And it died on the vine.

What we have is a system where new, creative works that incorporate sampled sounds from existing records can only be made, if at all, by major artists, or artists backed by the kind of big money that only major labels can afford. If this had been the situation 30 years ago, the genre of hip-hop might have never been born; it would have been crushed by the weight of the misdirected use of copyright law, a law that is supposed to encourage and foster creativity, not kill it.

The obvious answer here is the creation of a compulsory license regime that the law already provides for cover versions of entire songs to be applied to samples of both compositions and recordings, a system by which publishers and record companies can’t block an artist from sampling a track, but will get paid a reasonable license fee for any and all commercial uses of a recording. It’s extremely doable, but it would need a revision of copyright law, an act of Congress, and the creation of a royalty-collecting agency, along the lines of Harry Fox or SoundExchange.

Record companies and publishers would rake in millions in royalties without lifting a finger. All sorts of new music would be made, as sampling without fear would become mainstream. It wouldn’t be perfect. But nothing associated with copyright law ever is. And it would be infinitely better than what we have now.

—Paul Rapp


Paul Rapp is an intellectual-property lawyer with offices in Albany and Housatonic, Mass. He teaches art-and-entertainment law at Albany Law School, and regularly appears as part of the Copyright Forum on WAMC’s Vox Pop. Contact info can be found at www.paul Comments about this article can be posted at rapponthis

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