A Generation of Copyright Criminals?

As a student reading this book, you have probably already composed plenty of research papers, and quoted, with attribution, from various printed sources. This is a routine practice, and you are within the legal bounds of fair use of the sources you sampled. The concept of fair use has existed in U.S. case law for more than 150 years.

But, what if you are composing a song, or creating a video, and you decide to sample bits of music or a clip of film? Under current law, you have little protection and may be subject to a lawsuit from the recording or motion picture industry alleging copyright infringement.

As inexpensive digital technology became available, artists began sampling sounds and images, much like scholars and writers might sample texts. In the late 1980s, University of Iowa communication studies professor Kembrew McLeod explains, sampling “was a creative window that had been forced open by hip-hop artists,” but “by the early 1990s, the free experimentation was over. … [E]veryone had to pay for the sounds that they sampled or risk getting sued.”¹ The cost for most acts was far too prohibitive. Fees to use snippets of copyrighted sounds in the Beastie Boys’ 1989 sample-rich Paul’s Boutique recording cost $250,000.² Today, a recording based on creative mash-ups of samples probably couldn’t even be made, as some copyright owners demand up to $50,000 for sampling just a few seconds of their song.

Nevertheless, some artists are still trying. Pittsburgh-based mash-up DJ Girl Talk (Gregg Gillis) has no problem performing his sample-heavy music, where he remixes a dozen or more samples on his laptop with some of his own beats to create a new song. Copyright royalties are covered for his live public performances, since many venues already have public performance agreements with copyright management agencies BMI, ASCAP, and SESAC. (These are the same agencies that collect fees from restaurants and radio stations for publicly performed music.) But—and this is one of the many inconsistencies in copyright law—if Gillis wants to make a recording of his music, the cost of the copyright royalty payments (should they even be granted by the copyright holder) would exceed the revenue generated by the CD. If he doesn’t get copyright permission for the samples used, he risks hundreds of thousands of dollars in penalties.

Despite the threat of lawsuits, Gillis and an independent label—appropriately named Illegal Art—released the acclaimed Night Ripper album in 2006 and Feed the Animals (which uses 322 samples) in 2008. In defending the recording against potential lawsuits, Gillis and his label argue that they are protected from copyright infringement by the fair use exemption, which allows for transformative use–creating new work from bits of copyrighted work.³

The uneven and unclear rules for the use of sound, images, video, and text have become one of the most contentious issues of today’s digital culture. As digital media make it easier than ever to create and re-create cultural content, copyright law has yet to catch up with these new forms of expression.

“There’s no way to kill this technology. You can only criminalize its use,” Harvard Law professor and Internet activist Lawrence Lessig notes. “If this is a crime, we have a whole generation of criminals.”⁴