Sample Trolls, Serendipity, and Citation-itis
posted by Frank Pasquale
Tim Wu adds a thoughtful contribution to the “copyright-run-amok” literature with his piece Jay-Z vs. the Sample Troll in Slate. He covers the litigation crusade of Bridgeport Music, Inc., which holds “portfolios of old rights (sometimes accumulated in dubious fashion) and use[s] lawsuits to extort money from successful music artists for routine sampling, no matter how minimal or unnoticeable.” The company has commodified every bit of its music, suing over sampling of tiny fragments of sound that are unnoticeable to the average listener:
in 2001, Bridgeport launched nearly 500 counts of copyright infringement against more than 800 artists and labels. The company, suing in Nashville, Tenn., located every sample . . . it could find. It took the legal position that any sampling of a sound recording, no matter how minimal or unnoticeable, is still a violation of federal law. Imagine that the copyright owner of The Lord of the Rings had sued every fantasy book or magazine that dared used the words elf, orc, or troll. That gives you an idea of the magnitude of Bridgeport’s campaign.
As Wu notes, “there’s only one appellate court, the 6th Circuit, that takes the ridiculous position that any sample, no matter how minimal, needs a license.” But that decision has cast a pall over creativity in many musical fields.
Why would such an extreme view find adherents? I think the “get a license” school is importing legal academic norms of citation into creative industries. Essentially, the 6th Circuit is saying “give credit for everything you use–and while you’re at it, pay for it!” This position might make some sense if there were searchable databases for music and movies that are nearly as useful as the textual databases lawyers use–and if the materials could be obtained for the types of prices we pay. But music and movie searching is a lot more difficult than text search. (Google likely paid $1.6 billion for YouTube not because of the site’s technology, but for all the labor its users put in to categorizing the video clips on it via tags, favorites lists, subscriptions, etc.). Moreover, the types of institutions that guide print permissions are not as easy to use in the music business. One intern I know has told me that it takes weeks or months for his company to clear permissions, and often they will give no reason for a refusal to clear rights.
But even if the search/attribution and payment problems were solved, would we really want an academic model of production to pervade the creative industries? What about the role of spontaneity, of the serendipitous fusion of diverse influences? Do we really want moviemakers to wait for months to see if they can get permission to have a certain image in the background? Or for remixers to worry that some lurking troll can grab massive damages as soon as they gain notoriety? As Julie Cohen argues, “Within a given network of social and cultural relations, an important . . . determinant of creative ferment is the play, or freedom of movement, that the network affords.” The real menace of the sample trolls is to inject ever more lawyerly caution into realms of life that depend on serendipity.
Photo Credit: Stock Exchange/Kfawcett.
November 21, 2006 at 5:03 pm
Posted in: Uncategorized
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Responses (2)
Bruce Boyden - November 22, 2006 at 12:30 am
Yeah, go … errrm … record labels! And HBO!
More seriously, there’s a disturbing overlap here between the “copyright-run-amok” literature, and the “tort-system-run-amok” literature. What we have here is a complaint — anyone can file a complaint — and a single court decision that so far does not appear to have traction anywhere else. It’s more of a “court-and-plaintiff-run-amok” story.
Craig R. Harmon - November 25, 2006 at 2:13 pm
The idea seems to be simple: sampling bad. Print media has fair use for things like book reviews, scholarly research etc., but in such cases the use of copyright protected material is acknowledged, it’s author named and the use is restricted by law. I would distinguish needing a license to use the word “elf”, for example, from copying someone else’s music recording in one’s own in the following manner. The word “elf” wasn’t created by J. R. R. Tolkien. It was in the culture long before he wrote his fantasy works. Using a character named John Smith wouldn’t require a license to other authors using the name since it is a common name. On the other hand, if I used not only the name but the actual character “Bilbo Baggins” in one of my own works, using actual dialogue from Tolkien’s work, I would expect to have to have formal permission to do so and to probably have to pay someone for that privilege or be taken to court and pay there. I don’t see the difference in the music world. Radio stations used to run “guess the song” contests where they would play very short snippets of songs and people would guess for money. The courts or somebody said that even a needle drop on a record for broadcast constituted a use that required payment of royalties. I don’t see this practice of sampling to be any different.
Okay, I’m not a lawyer so I could be way off here but that’s the way I see the issue.
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