AUSL Technology & the Law

by Paul Patrick D. Daing

I. INTRODUCTION

The Philippine copyright law has its origin in Article XIV, Section 13 of the 1987 Constitution which provides that “The State shall protect and secure the exclusive rights of scientists, inventors, artists and other gifted citizens to their intellectual property and creations, particularly when beneficial to the people, for such period as may be provided by law.” An artist is one who professes and practices an art in which conception and execution are governed by imagination and taste.¹ These are people who are skilled in the fine arts such as painting, drawing, architecture, sculpture, music, ceramics or landscape architecture. Society profits by the creations of its men and women of letters and of science.² The State encourages the intellectual endeavors of men and women of talent by bestowing on them certain exclusive rights for limited periods so that there may be added motive for the creation of literary, artistic, scientific and technological works beneficial to society.³ Intellectual property protection is therefore merely a means towards the end of making society benefit from the creations of its men and women of talent and genius.⁴

Since our world is made up of artistic individuals, it is therefore proper to afford their works some protection by the State. Logic will tell us that if an inventor or a musical composer is not protected of his works, he will either conceal it from the public or will be discouraged to create for fear that someone might steal it from him. Thus, certain laws have been enacted to foster encouragement and protection for intellectual properties. Among them are embodied in our Constitution (Article XIV, Section 13); The Civil Code of the Philippines (Title II, Intellectual Creations, Articles 721-724); Republic Act No. 8293 (The Intellectual Property Code of the Philippines); The General Agreement on Tariffs and Trade (1994, Uruguay Round, including the Agreement on Trade-related Aspects of Intellectual Property Rights [TRIPPS]) and different conventions to which the Philippines is a signatory such as The Berne Convention for the Protection of Literary and Artistic Works (Paris Act of July 24, 1971, as amended on September 28, 1979), Convention establishing the World Intellectual Property Organization (since 1980), The Paris Convention for the Protection of Industrial Property (since 1965), The Budapest treaty on the International Recognition of the deposit of Microorganisms for Purposes of Patent Procedure (since 1981) and The Rome Convention: International Convention for the protection of Performers, Producers of Phonograms and Broadcasting Organizations (since 1984). These intellectual properties that are creations or products of the mind have legal protection through copyrights, patents and trademarks.

This paper will deal on the effects of sampling technology on copyright specifically on musical compositions and literary works such as poetry and prose. A brief history of sampling as well as the legal issues surrounding it that helped shape the entertainment industry worldwide will be discussed. A comparison of the copyright laws and jurisprudence of the United Sates of America and the Philippines will also be included to help the reader appreciate the issues involved in sampling. Finally, a humble proposal on the issue of copyright infringement will be given to encourage artistic creativity through music and other literary works.

II. SAMPLING

What is music sampling? Sampling, in music, is the act of taking a portion, or sample, of one sound recording and reusing it as an instrument or a different sound recording of a song. This is typically done with a sampler, which can be a piece of hardware or a computer program on a digital computer. Sampling is also possible with tape loops or with vinyl records on a phonograph.⁵

In layman terms, sampling is done by slicing a piece(s) of a song and incorporating it to form a new one, either with or without permission from the original artist. It is the act of appropriating a sound from a previously recorded work allowing an artist to copy a portion of a recorded sound or series of sounds and incorporate the fragment into a new work. Under the Intellectual Property Code of the Philippines, works are referred to as the original intellectual creations in the literary and artistic domain protected from the moment of their creation. Some instances include the use of the drum introduction from Led Zeppelin’s “When the Levee Breaks” in songs by the beastie Boys, Dr. Dre, Eminem, Mike Oldfield, Rob Dongan, Depeche Mode and Erasure, and the guitar riffs from Foreigner’s “Hot Blooded” in Tone Loc’s “Funky Cold Medina.” Samples in this sense occur often in industrial music, often using spoken words from movies and TV shows, as well as electronic music (which developed out of the musique concrete style, based almost entirely on samples and sample-like parts), hip-hop, developed from the DJs repeating the breaks from songs and contemporary R&B, but are becoming more common in other music as well.⁶

In recent times, oral poetry and prose or spoken word has gained popularity and attention among many specially the youth. Spoken word is a form of literary art or artistic performance in which lyrics, poetry, or stories are spoken rather than sung.⁷ It can be categorized as performance poetry or poetry that is specifically composed for or during performance before an audience. A poet reads poems specifically written to be performed aloud, rather than print distribution. These story-tellers will narrate through first-person prose. Other forms of performance poetry are poetry reading (traditional) and political/social commentary. An example of a spoken word would be The Vagina Monologues (a play written by Eve Ensler whereby every monologue relates to the vagina, be it through sex, love, rape, menstruation, mutilation, masturbation, birth, orgasm, vagina names, or simply as a physical aspect of the body used as a tool for female empowerment and the embodiment of individuality).

Usually taken from movies, television, or other non-musical media, often used to create atmosphere, to set a mood, or even comic effect. The American composer Steve Reich used samples from interviews with Holocaust survivors as a source for the melodies on the 1988 album Different Trains, performed by the Kronos Quartet.⁸

Many genres utilize sampling of spoken word to induce a mood, and Goa trance often employs samples of people speaking about the use of psychoactives, spirituality, or science fiction themes. Industrial is known for samples from horror/sci-fi movies, news broadcasts, propaganda reels, and speeches by political figures. The band Ministry frequently samples George Bush. The band Negativland samples from practically every form of popular media, ranging from infomercials to children’s records. In the song “Civil War”, Guns N’ Roses samples from the 1967 film Cool Hand Luke, on the album Use Your Illusion II. Other bands that frequently used samples in their work are noise rockers Steel Pole Bath Tub and death metal band Skinless.⁹

The spoken word movement in the 1990’s made poetry exciting again, so exciting in fact that MTV executives took notice and eventually provided spoken word with its most influential vehicle for mass market exposure. The cable channel’s interest in the spoken word poetry movement was fleeting, but substantial. It began with a highly successful Spoken Word Unplugged special that showcased such flamboyant and charismatic entertainers as Estep, Reg E. Gaines, Hall, Dana Bryant and erstwhile rocker Henry Rollins. The show was a success, and one MTV exec proclaimed it, “One of our proudest moments.” The reason for this interest from MTV and its viewers in the poetry movement is not difficult to ascertain. Estep’s bitingly funny odes to a man she has a crush on, like “The Stupid Jerk I’m Obsessed With” and her satirical views of sexuality, as in “I am the Sex Goddess of the Western Hemisphere,” were subjects that the average MTV viewer could appreciate and accept. The same is true all the other poems performed, like Holman’s “The Point”, Hall’s ironical “Let’s Have Sex”, and Dana Bryant’s wistful “Heat”. “Most of the poems won’t endure for decades, and why should they? Their purpose is different,” said Caryn James of the New York Times, and she shares a philosophy with many in the spoken word community. James continues in her glowing review of Spoken Word Unplugged with the following: “‘Unplugged’ assumes that rap is street poetry and that street poetry is a vocal, visceral expression of contemporary life… The ‘Unplugged’ special grasp(s) the importance of this vibrant, essential and growing means of self-expression. These entertainers blur the line between literature and pop culture in a way that defines the times. Something more than show biz is going on.¹⁰

In the Philippines, multi-awarded writer Lourd De Veyra of the band Radioactive Sago Project uses the same kind of approach in their songs. He literally tells a story about everything and anything under the sun while his band plays back-up music. Noticeably is the fact that he never really sing in every song in their albums. The lyrics to their song “For Adults Only” (Terno Records, 2007) is taken from the poem “Lahat ng Hindi Ko Kailangan Malaman, Natutunan Ko Sa Mga Pelikulang for Adults Only” written by Jose Lacaba from the book Edad Medya (Anvil Publishing, 2000).

Popular reggae band Tropical Depression dubbed and sampled the entire speech declaration of the late President Ferdinand E. Marcos’ Proclamation No. 1081 (otherwise known as “The Martial Law”) in their song “Dub 1081.” Incidentally, they became the first reggae band in the Philippines to showcase dub-music in their album.

Dub can loosely be defined as a studio technique or a style of music that was developed in the 1970s in Kingston, Jamaica, first by King Tubby, then by Prince Jammy, Scientist, Lee “Scratch” Perry, Augustus Pablo and other recording engineers and artists who took reggae tracks and “tweaked” them in the studio. By removing vocal tracks (either completely or partially), adding special effects, then remixing the songs, they created an entirely new, bass-heavy sound that they took to the dancehalls, where it was a smashing success. Soon, nearly every song released was also remixed as a dub version, and singers and DJs began to “ride the riddim” or “toast” over these new records.¹¹

When the composition consists of melody and lyrics, both together enjoy copyright. Lyrics alone, ofcourse, will be dealt with as a literary work. There is nothing to prevent a composer from setting to music one of Shakespeare’s sonnets. They are now in the public domain and may be freely appropriated. It also then follows that where a musician appropriates poetry of Ophelia Dimalanta for lyrics without her permission, he infringes her copyright to her poetry. The question is often asked whether the musician appropriating Dimalanta’s poetry for lyrics would escape changes of infringement were he to acknowledge her as lyricist. The answer to me is quite clearly in the negative, for acknowledgement of authorship is a “moral right” and leaves the problem of Dimalanta’s “economic right” unresolved. Another way of putting this is to remind ourselves that the law gives Dimalanta the right to adopt her own poetry for lyrical purposes – a right that is usurped by a musician who uses them as lyrics for his own composition, even as he acknowledges that the lyrics originate from her.¹²

III. HISTORY OF MUSIC COPYRIGHT IN THE UNITED STATES

It is natural for us Filipinos to look up to American laws and jurisprudence whenever we are faced with legal questions that our domestic and local laws could not answer or when there are inadequacies in our own laws. Our current intellectual property laws are, after all, patterned on theirs. An analysis on American legislation and court decisions regarding music sampling is pertinent in understanding the issues.

U.S. copyright law has its origin in Article I Section 8 of the Constitution: The Congress shall have the power…to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their writings and discoveries.¹³ There is some similarity with regard to Article XIV, Section 13 of the 1987 Constitution of the Philippines.

The 1910 U.S. Copyright Law was a manifestation of Congress’ power to promote the useful arts by providing authors with exclusive rights. Although it did not sufficiently anticipate technological inventions like the jukebox, this early law did allow the copyright owner of a nondramatic musical composition to demand fees from others who wish to perform it publicly.¹⁴

The Copyright Act of 1976, a rewriting of the original Act, was written to promote “the broad public availability of literature, music, and the other arts.”¹⁵ The 1976 Act defined two copyrightable elements of any musical recording: the musical composition (the written lyrics and musical arrangement), and the sound recording (the sounds on the cassette, CD, or album). The Copyright Act of 1976 gave holders of musical composition copyrights the exclusive right to reproduce the music, make a derivative work based on the copyrighted music, distribute the work publicly, perform the music publicly and display the work publicly.¹⁶ Holders of the sound recording copyright are given only the first three of these rights. A derivative work is one in which the fixed sounds are “rearranged, remixed, or otherwise altered in sequence or quality.”¹⁷ Section 115 of the Copyright Act requires holders of composition copyrights to allow other artists to “cover” the song at a set rate of royalty payments as long as the second artist does not “change the basic melody or fundamental character of the work.”¹⁸ An example of this would be the 1996 Grammy Award hit song “Killing Me Softly” by The Fugees (Wyclef Jean, Lauren Hill & Pras Michel) which is a modern rendition of the 1973 classic “Killing Me Softly with His Song” done by Roberta Flack. They did not need the permission of the holder of the songwriting but they have to pay royalties to a set rate because there was no change in the basic melody or fundamental character of the song.

The 1971 Sound Recording Amendment (later incorporated into the 1976 Act) was designed to prevent bootlegging by record and tape pirates.¹⁹ Bootlegging is considered as a copyright infringement because it allows a bootlegger to record and distribute an audio or video performance (not officially released) of an artist without the latter’s consent. This is usually done by going to a concert or a gig and recording the whole performance of the artist with the use of an audio/video recorder. The 1976 Act provided copyright owners with the opportunity to impound the violating works, obtain statutory damages and legal costs, and inflict criminal penalties, so copyright holders have much to gain by seeking legal recourse in a copyright dispute.²⁰

In 1989, the U.S. joined the Berne Convention for the Protection of Literary and Artistic Works, which allowed works to be legally copyrighted without explicit notice on each copy.²¹ In 1998, the WIPO Treaty Implementation Act extended copyright law to the digital domain like the MP3 (short for MPEG-1, layer 3) but maintained the same definition of Fair Use.

IV. U.S. COURT DECISIONS

In Campbell vs. Acuff-Rose Music, Inc.,(1994), the members of the rap music group 2 Live Crew—Luther Campbell, Fresh Kid Ice, Mr. Mixx and Brother Marquis—composed a song called “Pretty Woman,” a parody based on Roy Orbison’s rock ballad, “Oh, Pretty Woman.” The group’s manager asked Acuff-Rose Music if they could license Roy Orbison’s tune for the ballad to be used as a parody. Acuff-Rose Music refused to grant the band a license but 2 Live Crew nonetheless produced and released the parody. Almost a year later, after nearly a quarter of a million copies of the recording had been sold, Acuff Rose sued 2 Live Crew and its record company, Luke Skyywalker Records, for copyright infringement.²²

A parody is a work created to mock, comment on, or to poke fun at an original work by means of humorous, satiric or ironic imitation.

The District Court granted summary judgment for 2 Live Crew, holding that its song was a parody that made fair use of the original song under Sec. 107 of the Copyright Act of 1976 (17 U.S.C. Sec.107). The Court of Appeals reversed and remanded, holding that the commercial nature of the parody rendered it presumptively unfair under the first of four factors relevant under Sec. 107; that, by taking the “heart” of the original and making it the “heart” of a new work, 2 Live Crew had taken too much under the third Sec. 107 factor; and that market harm for purposes of the fourth Sec. 107 factor had been established by a presumption attaching to commercial uses. The Supreme Court held that 2 Live Crew’s commercial parody may be a fair use within the meaning of Sec. 107.²³

The U.S. Copyright Act of 1976 in Section 107 states that:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.²⁴

In United States vs. Taxe (1976), the court ruled that re-recording an entire song while changing some frequencies and tones violates copyright.²⁵ This decision did not deal with the fragmentary appropriation of a song, and did not answer whether changing the original song into an unrecognizable version would constitute infringement. However, the court did find that infringement occurs even if the re-recorder changes the original music as long as the original work can be recognized in the final performance. The implication from Taxe is that any act of sampling is automatically infringement.²⁶

In Grand Upright Music, Ltd. vs. Warner Bros. Records, Inc. (1991), Biz Markie, a rapper signed to Warner Bros. Records, had sampled a portion of the music from the song “Alone Again (Naturally)” by singer/songwriter Gilbert O’Sullivan. The court granted an injunction against the defendants to prevent further copyright infringement of the plaintiff’s song by sampling and referred them for criminal prosecution. The judgment changed the hip hop music industry, requiring that any future music sampling be preapproved by the original copyright owners to avoid a lawsuit.²⁷ The decision altered the landscape of hip-hop, concluding that all samples must be cleared with the original artist before being used in their respective songs.
Bridgeport Music, Inc. vs. Dimension Films, (2005), is a court case that has proved important in defining American copyright law for recorded music. The case centered around N.W.A.’s song “100 Miles and Runnin’” and Funkadelic’s “Get Off Your Ass and Jam.” Essentially, N.W.A. sampled a two-second guitar chord from Funkadelic’s tune, lowered the pitch and looped it five times in their song. This was all done without Funkadelic’s permission and with no compensation paid to Bridgeport Music, which owns the rights to Funkadelic’s music. Bridgeport brought the issue before a federal judge, who ruled that the incident was not in violation of copyright law.²⁸

On appeal, the U.S. Court of Appeals for the Sixth Circuit reversed the decision and ruled that the sampling was in violation of copyright law. Their argument was that with a sound recording, an owner of the copyright on a work had exclusive right to duplicate the work. Under this interpretation of the copyright law, usage of any section of a work, regardless of length, would be in violation of copyright unless the copyright owner gave permission. In its decision, the court wrote: “Get a license or do not sample. We do not see this as stifling creativity in any significant way.” This decision effectively eliminates the de minimis doctrine for recorded music in the Sixth Circuit, and has affected industry practice. However, the court expressly noted that the decision did not preclude the availability of other defenses, such as fair use, even in the context of “sampling.” Thus, in the Sixth Circuit, defendants may not rely on the de minimis doctrine to say that they copied such a small amount that they are not liable for copyright infringement. However, they may still argue that their use of the sample is still a fair use–that is, that the use is transformative, for noncommercial purpose, copied only a small amount, the original had a thin copyright, or the copying did not harm the market for the original work or its derivatives.²⁹

The court, with this ruling, created a bright-line test resulting in any unlicensed sampling would be considered copyright infringement.³⁰

A new concept for dealing with such issues as this has been discussion in the music world on creating a Compulsory Sampling License model.³¹

In Newton vs. Diamond (2003), the Ninth Circuit Court holds that the Beastie Boys’ use of three notes from plaintiff’s composition (C, D flat, C, over a held C note) was a de minimis use of the composition, and thus, not copyright infringement. District Court had held, additionally, that the notes lacked sufficient originality to merit copyright protection…a point the appellate court did not reach. In this case, Beastie Boys had actually licensed the composer’s (James Newton) recording of the song for sampling purposes, but did not license the underlying composition, also by Newton. Note: Relevant copyright infringement inquiry is whether a substantial portion of plaintiff’s work was appropriated, not whether a substantial portion of defendant’s work was derived from plaintiff’s work. Thus, Beastie Boys’ repeated use of the three notes does not affect the court’s analysis that any copyright infringement was de minimis. For an unauthorized use of a copyrighted work to be actionable, there must be substantial similarity between the plaintiff’s and the defendants’ works. The Court used the leading case of Fisher vs. Dees, 794 F.2d 432 (9th Cir. 1986) on de minimis infringement, where they observed that a use is de minimis only if the average audience would not recognize the appropriation.³²

V. POPULAR CASE STUDIES

One of the first major legal cases regarding sampling was with UK dance act M/A/R/R/S “Pump Up the Volume”. As the record reached the UK top ten, producers Stock Aitken Waterman obtained an injunction against the record due to the unauthorized use of a sample from their hit single “Roadblock”. The dispute was settled out of court, with the injunction being lifted in return for an undertaking that overseas releases would not contain the “Roadblock” sample, and the disc went on to top the UK singles chart. Ironically, the sample in question had been so distorted as to be virtually unrecognizable, and SAW didn’t realize their record had been used until they heard co-producer Dave Dorrell mention it in a radio interview. ³³

Rapper Vanilla Ice’s 1990 hip-hop single “Ice Ice Baby” (from the album To the Extreme) made an unauthorized sample of the basslines from Queen and David Bowie’s 1982 song “Under Pressure” which became an instant hit during that time. “Ice Ice Baby” added an additional one (1) note to the original seven (7) note bassline which would become the backbone of the song. The controversy was settled out of court when the original artists, their publishing company and record company all threatened to sue.

Experimental music and sound collage group Negativland’s song “U2 on SST Records” sampled un-aired vocal snippets from Casey Kasem’s radio program America’s Top 40 while two tracks from their EP album lies heavily on parodies of the song “I Still Haven’t Found What I’m Looking For” from the Irish rock group U2. Island Records and Warner-Chapell Music, U2’s recording and publishing company respectively, sued Negativland for infringement because the album cover bears the word “U2”. SST and Negativland agreed to pay Island and Warner-Chapell, to stop distributing the single, and to give up the rights to the song.

In 1997, the British alternative rock group The Verve released the album Urban Hymns which includes the single “Bittersweet Symphony”. It became a massive worldwide hit and reached #12 on the U.S. charts and their album reached the US Top 30, going platinum in the process. The band negotiated a licensing agreement with The Rolling Stones to use the sample of an Andrew Oldham Orchestra recording of The Rolling Stones’ 1965 song “The Last Time” for its hook. Stones’ manager Allen Klein allowed the Verve to use the sample, but on the condition that Mick Jagger and Keith Richards receive the songwriting credit for the song. After the song reached its height, the Rolling Stones argued that the band violated the previous licensing agreement by using too much of the sample in their song. The Stones’ manager sued and the result of this was a bitter legal battle resulting in The Verve turning over 100% of the royalties to the Rolling Stones because too much or extensive sampling was successfully argued before the court.

The song went on to be used in Nike shoe commercial campaigns and Vauxhall Motors commercials. Although the lyrics of the song belonged to Richard Ashcroft (lead signer of The Verve) the result of the case made Mick Jagger and Keith Richards as the nominees when the song was nominated in the Grammy Awards.

In October 1996, The Chemical Brothers released the single Setting Sun inspired by The Beatles’ Tomorrow Never Knows and featuring Oasis’ Noel Gallagher on vocals - a long admirer of The Beatles work. Setting Sun hit #1 on the UK Singles Chart on first week of release and the common consensus was The Chemical Brothers had sampled/looped significant parts of Tomorrow Never Knows in the creation of Setting Sun. The three remaining Beatles took legal action against The Chemical Brothers/Virgin Records for breach of copyright, however a musicologist proved The Chemical Brothers had independently created Setting Sun - albeit in a similar vein to Tomorrow Never Knows.³⁴

VI. FAIR USE, MORAL RIGHTS and ECONOMIC RIGHTS

What is fair use? Fair use is a legal concept that allows someone a limited use of copyrighted material without requiring permission from the copyright holders. Under the IPL, there are four factors to be considered in determining fair use, to wit: (1) The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; (2) The nature of the copyrighted work; (3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) The effect of the use upon the potential market for or value of the copyrighted work.

At least one of these factors must be present in order to determine whether there is fair use or not. For example in the case of Newton vs. Diamond (2003), wherein the court ruled that the Beastie Boys did not cause an infringement of James Newton’s work because there is no substantial similarity between the two compositions. The use of the 3 notes was a de minimis use of the plaintiffs work. Therefore, there is no infringement. However, in using our own copyright law, even if the third factor applies, the other three remaining factors will have to be taken into consideration also.

What are moral rights? Moral rights include the right of attribution, the right to have a work published anonymously or pseudonymously, and the right to the integrity of the work. The preserving of the integrity of the work bars the work from alteration, distortion or mutilation. Anything else that may detract from the artist’s relationship with the work even after it leaves the artist’s possession or ownership may bring these moral rights into play.³⁵

Section 193 of the Intellectual Property Code defines the scope of moral rights, to wit:

Section 193. Scope of Moral Rights. - The author of a work shall, independently of the economic rights in Section 177 or the grant of an assignment or license with respect to such right, have the right:

193.1. To require that the authorship of the works be attributed to him, in particular, the right that his name, as far as practicable, be indicated in a prominent way on the copies, and in connection with the public use of his work;

193.2. To make any alterations of his work prior to, or to withhold it from publication;

193.3. To object to any distortion, mutilation or other modification of, or other derogatory action in relation to, his work which would be prejudicial to his honor or reputation; and

193.4. To restrain the use of his name with respect to any work not of his own creation or in a distorted version of his work. (Sec. 34, P.D. No. 49)

It is said that an author of a work is entitled to its moral rights. To maintain that the work is in harmony with an author’s moral rights, creators must attribute to the original author and must not blacken the integrity of the original work. If these were not done, infringement will suffice. Moral rights differ from different parts of the world including Europe, Canada, China, Ghana, Hong Kong, Macao and the United States. We in the Philippines adopt the United States concept of moral rights.

What are economic rights? Economic Right maintains that copyright protections are intended to encourage innovation by protecting what is rightfully the property of the creator because of his labor and “creative spark,” and is thus concerned more with balancing the rights of creators with market access.³⁶ Under the IPL, economic rights consist of the exclusive right to carry out, authorize or prevent the following acts: (1) Reproduction of the work or substantial portion of the work; (2) Dramatization, translation, adaptation, abridgment, arrangement or other transformation of the work; (3) The first public distribution of the original and each copy of the work by sale or other forms of transfer of ownership; (4)Rental of the original or a copy of an audiovisual or cinematographic work, a work embodied in a sound recording, a computer program, a compilation of data and other materials or a musical work in graphic form, irrespective of the ownership of the original or the copy which is the subject of the rental; (5) Public display of the original or a copy of the work; (6) Public performance of the work; and (7) Other communication to the public of the work.

Economic rights belong exclusively to the owners of the copyright. An owner may or may not be the author of the work. It is therefore very important to distinguish who is the author and who is the owner. The economic rights under the IPL are also similar with those of the U.S. Copyright Act of 1976.

VII. CONCLUSION

The question is: Why do people sample? Why go through the extent of borrowing a part of someone’s work and risks being sued in the process? The answer would be “recall”. It is very easy for big artists such as Celine Dion or Mariah Carey to come up with an album and instantly hit the charts. Unfortunately for new or budding musicians, they have to come up with a really good song or else their album will be a flop. To be assured of a hit single, they will have to make a cover or rendition of an old popular song or sample parts of that old popular song into theirs. This will assure them some public recognition and gain album sales. Having an old song being sung in a new way will garner some recall in your audience. Recall is very important because by using an old song, you make it easier for your audience to adapt and appreciate a song they already know although sung by someone else. This technique is a widely used industry practice especially in the Philippines.

Indeed sampling technology has changed the concept of creativity among artist. Before, a musician must develop and come up with a whole “new” and “original” song to say that it is his own work. Now, with the use of modern technology, a musician can actually “borrow” certain slices or parts of previously recorded/published artistic and literary works to come up with his own. However, because a sample infringes on the underlying composition and sound recording copyrights of the original song, the use of sampling in music involves either licensing the sample from the copyright holders or risking legal action.

This author believes that expressions through original and derivative works must and conform to the doctrines of fair use, moral and economic rights. Each time someone samples your work; he must either get a license for it or pay you an equivalent rate of royalty. The cases sighted above reveal different intentions by the petitioners in engaging in legal battles for the protection of their work. Some sue because permission was not obtained for the use of their work. Others just want to make easy money. Whatever purpose they had in mind, the bottom line would be that works should always be protected.

From the list of cases cited above, this author concludes that artists, record labels and publishing companies only began to care about sampling when the acts using the technique began to make money. As when Vanilla Ice’s “Ice Ice Baby” began sweeping through the airwaves and started to move above the charts, it is only then that Queen and Bowie’s management started noticing the impact and the potential monetary considerations they will get if they will sue. You can either blame it on the record company for not obtaining a license or to the artist himself for not crediting the original artist. Be it as it may, profit is the only thing that matters to them. Only records that have become successful re responded to by lawsuits.

Small artists that samples without permission may not suffer the same fate as other bigger artists would. This is because the chances of noticing a sampled song is very slim as compared to bigger artists. Whenever a big artist comes up with a new album, media will review the songs and will make an analysis of each song including violations of infringement. As for small artists, their album is often unnoticed.

In order to prevent claims from the sampled artists, new artists can (1) use sample CDs with pre-cleared samples on them; (2) make their own samples; (3) use a song whose copyright has expired or (4) pay the copyright holders to re-use the original song.

As a Filipino composer, the author recommends others to join the FILSCAP or The Filipino Society of Composers, Authors and Publishers, Inc. As a non-stock, non-profit association of composers, lyric-writers and music publishers established in 1965, it aims to administer the public performance, mechanical reproduction and synchronization rights granted by law to creators and owners of original musical works. It represents the rights of both local and foreign composers, lyric-writers and music publishers and as such, it owns or controls in the Philippines an extensive worldwide repertoire of copyrighted local and foreign musical works. Its main role is to have a unified body of music copyright owners to which application for a permission/license may be made by a person or organization intending to perform, authorize the performance of, mechanically reproduce and/or synchronize copyrighted music in any manner or by any method, for profit or otherwise. Being a member of FILSCAP assure that your work is really protected from copyright infringement.

Finally, this author believes that each time you sample, you must always attribute it to the original author whether it is for profit or not. This will prevent unauthorized use of the work and avoidance of the hassle of future litigation. As the saying goes: Give to Caesar what is to Caesar.

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Endnotes

1. Webster’s Third New International Dictionary [↩]
2. Aquino, Fr. Ranhilio Callangan, Intellectual Property Law, 2006 [↩]
3. Ibid [↩]
4. Ibid [↩]
5. http://wikipedia.org/wiki/sampling_(music) [↩]
6. Ibid. [↩]
7. http://en.wikipedia .org/wiki/Spoken_word [↩]
8. http://en.wikipedia.org/wiki/sampling_(music) [↩]
9. Ibid. [↩]
10. https://www.msu.edu/~miazgama/spokenword.htm [↩]
11. http://www.jahworks.org/music/charts/concert/club_o_the_month/dub_mission.html [↩]
12. Aquino, Fr. Ranhilio Callangan, Intellectual Property Law, 2006 [↩]
13. U.S. Constitution, Article I Section 8. [↩]
14. William H. O’Dowd, “Note: The Need For a Public Performance Right in Sound Recordings,” 31 Harvard Journal on Legislation 249. [↩]
15. Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975). from S. Hampel, “Note: Are Samplers Getting a Bum Rap?: Copyright Infringement of Technological Creativity?” 1992 University of Illinois Law Review 559 (1992). [↩]
16. Tit. 17 U.S.C. 106 (1988) in David Richards, “The Copyright Law and the Musician: A Guide to the 1976 Copyright Act,” gopher://wiretap.spies.com/00/Library/Article/Rights/copyrigh.mus. [↩]
17. Tit. 17 U.S.C. Sec. 114(b) (1988). [↩]
18. Tit. 17 U.S.C. 115 (a)(2) (1998). [↩]
19. Alan Korn, “Renaming That Tune: Audio Collage, Parody, and Fair Use,” Fair Use: The Story of the Letter U and the Numeral 2 (Concord, CA: Seeland, 1995), p. 226. [↩]
20. Ibid., p. 226. [↩]
21. Tit. 17 U.S.C. 106 (1988) in David Richards, “The Copyright Law and the Musician: A Guide to the 1976 Copyright Act,” gopher://wiretap.spies.com/00/Library/Article/Rights/copyrigh.mus. [↩]
22. http://en.wikipedia.org/wiki/Campbell_v._Acuff-Rose_Music,_Inc. [↩]
23. Ibid. [↩]
24. http://www4.law.cornell.edu/uscode/17/107.html [↩]
25. United States v. Taxe, 380 F. Supp. 1010 (C.D. Ca. 1974) aff’d in part and vacated in part, 540 F.2d 961
    (9th Cir. 1976) cert. denied, 429 U.S. 1040 (1977). [↩]
26. princeton.edu/culturalpolicy/studentpap/undergrad thesis1 JLind.pdf [↩]
27. http://en.wikipedia.org/wiki/Grand_Upright_Music,_Ltd._v._Warner_Bros._Records_Inc. [↩]
28. http://en.wikipedia.org/wiki/Bridgeport_Music,_Inc._v._Dimension_Films [↩]
29. Ibid. [↩]
30. Ibid. [↩]
31. Ibid. [↩]
32. http://altlaw.org/v1/cases/161437 [↩]
33. http://en.wikipedia.org/wiki/Sampling_(music) [↩]
34. Ibid. [↩]
35. http://en.wikipedia.org/wiki/Moral_rights_(copyright_law) [↩]
36. http://www.case.edu/affil/sce/authorship-spring2004/economic.html [↩]

April 4th, 2009 | Category: SY08-09b | Subscribe to comments | Leave a comment | Trackback URL