Sampling is an interesting practice within the music industry for copyright attorneys. For those unfamiliar with the practice, sampling involves taking a little snippet of a recording for use in a different song. This practice is exceedingly common, especially in hip-hop and the various permutations of techno. Recently, Frank Ocean got in some legal trouble for a sampled used in his song “Super Rich Kids.” The actual case (found here: http://www.avclub.com/article/frank-ocean-is-being-sued-for-using-a-sample-of-a-107662) is a rather fascinating one. Ocean used a sample partially claimed by a label called TufAmerica, which owns 3.15 percent of a Mary J. Blige song from which Ocean allegedly sampled. TufAmerica’s ownership derives from suing over Blige’s sampling of another song (Audio Two’s “Top Billin'”) that sampled from a song TufAmerica owns (The Honey Drippers’ “Impeach the President”). The fascination partially comes from that long and convoluted ownership chain.
Sampling provides an interesting look into how convoluted copyright can get when trying to keep up with a creative industry’s practice. Theoretically, even the shortest sample requires the rights holders’ permission to use. This can get particularly difficult in the case of music sampling, because the sound recording and the song get treated as separate works for copyright purposes. A different entity can (and often does) own the rights to the sound recording, whereas the original composer often owns the song itself. If the artist can obtain permission from these owners, then they can use the sample. It is not uncommon for the owners to charge a licensing fee to use their sample.
Where things get tricky is what happens when a group alters their sample. There was a video that went viral about a month ago explaining how Daft Punk changed around a sample from “More Spell on You” by Eddie Johns for their famous opening riff for “One More Time” (here’s a YouTube video explaining the technical aspects of how they did this: https://www.youtube.com/watch?v=9sdtOpE_3aQ). If you listen to the video, there is one part that becomes apparent very quickly: the riff from “One More Time” bears little resemblance to the original song when all is said and done. The question becomes how similar either Daft Punk or Frank Ocean’s sample is to the plaintiff’s song.
This issue becomes more important when one considers the substantial similarity standard for copyright infringement, as far as music is concerned: Arnstein v. Porter (1946). This case involved a plaintiff (named Arnstein) who claimed that Cole Porter infringed on one of their songs. Substantial similarity has two requirements: 1. access to the original work and 2. a level of similarity that indicates that infringement occurred. Arnstein adds a few more important wrinkles to this standard, such as stating that access is not required if the similarity between the songs is such that direct infringement is the only viable explanation and stating that the determination must be made from the perspective of non-experts. The court makes this determination using a number of factors, such as looking for idiosyncrasies or mistakes in the original work and whether they appear in the alleged infringing work (which some people intentionally add, just to easily catch infringers). Access to the original work is almost a comically easy argument to make at this point. Even discounting file sharing, there are plenty of legal methods of listening to practically every commercially available song.
This determination isn’t so hard to make when the songs resemble each other to the point of being obvious. In the case of both Daft Punk and Frank Ocean, the artists made changes to their sample that might make the use of such a sample less obvious to the average listener. Ocean’s case is a little less convoluted than Daft Punk’s (though Daft Punk acquired permission to use their sample), since Frank Ocean’s drum beat resembles the drum beat from the Audio Two song (I couldn’t find The Honey Drippers’ song when researching this post). However, the Audio Two song uses a different percussive instrument when compared to Frank Ocean’s song. The only part the two songs have in common is a similar drum pattern running underneath them. Daft Punk’s “One More Time” riff takes a few notes from the original Eddie Johns’ song, and distorts them further. I doubt many people would hear the similarity without help from someone familiar with such sampling techniques. Sometimes, these determinations remind me of an old comedy bit I saw regarding Pachelbel’s Cannon (found here: https://www.youtube.com/watch?v=JdxkVQy7QLM). The skit notes that many people copy the chord progression from Pachelbel’s Cannon in various kinds of pop music (including, apparently, the entirety of punk) which makes the comedian joke that the song is stalking him.
How this turns out for Frank Ocean is an open question. His case merely demonstrates how convoluted ownership of sound recordings can get, as labels go under and sell their assets. His case also demonstrates how difficult infringement can be when there is some similarity between a sample from his song to a sample from another, and whether that rises to the level of being substantial. Daft Punk demonstrates a second phenomenon in sampling: how the sample can changed so much that it hardly resembles its original. It can (and has: http://www.ted.com/talks/lessig_nyed.html) been argued that the law should consider such works original at that point. Given the prevalence of sampling within two of the dominant genres of music, such a move would make a certain amount of sense.