The roots of rap and hip hop are intertwined with past music. From the earliest releases to the latest hits, so many songs use samples of prior music. Puff Daddy made mega-hits of songs in the 90s based off 80s samples. So have Dr. Dre, The Fugees, and Eminem. The list goes on and on. Now, with the release of De La Soul's 3 Feet High And Rising on streaming, we learn more of what needs to be addressed: the legality of sampling.
Dan Charnas at Slate discusses the struggle of the legendary hip-hop group to legally release their music on streaming platforms. It stems from to unresolved sampling issues. The group's situation is not unique, as countless artists have faced legal challenges and financial obstacles when it comes to sampling. Here is more of the legal tangled web.
The idea of legally recycling musical ideas has solid precedents. Songs are written, and once performed by a recording artist, remade by countless others. This process is completely legal, enshrined into U.S. law by what’s called a compulsory license: If you are the songwriter, you do not have the right to prevent anyone from rerecording your song, but if you are the recording artist, you must pay the songwriter an amount mandated by law. The arrangement strikes a balance between ownership and public good, creating a marketplace that rewards innovation but doesn’t allow creators to lock up their creations so no one else can build on those ideas without risking infringement. True, a songwriter might not like how a number of artists might interpret their musical ideas, but they get paid nonetheless. This compromise is integral to the way our democracy views the boundaries of so-called intellectual property.
Yet there has never been a compulsory license for borrowing parts of songs, nor for pieces, or “samples,” of the recordings of those songs. There are some respectable arguments for the status quo, many of them centered around droit moral, a legal concept derived from a French term referring to an artist’s “moral right” to keep others from altering or using their creative ideas in ways that they find creatively or morally wrong. Artists’ rights have been subject to all kinds of violation in our cultural marketplace, so it’s understandable that we conceive of those rights in economic terms: the ability to own or control the trade in their ideas, and to be compensated for them. But that is not the only right that is at risk when we create and apply laws about art and ownership. Another liberty, the most basic one, has also been suppressed: an artist’s right to create art in the first place.Slate
With decades of sampling taken place, the practice has been a gray area in music law for decades. Many artists and producers have opted to use uncleared samples despite the legal risks. This has resulted in a situation where groups like De La Soul, who have been sampled themselves, are unable to release their own music without facing potential lawsuits.
One tough part related to all this is the fact that rights-holders generally do not want any of their work used without compensation. That is fair. A person or group wrote and composed a song and deserves credit. But where does the line between rights and fair use get drawn? When do pieces using sampled music then become their own works?
Should sampling morph into a realm of music where specific licenes are created that avoid this situation? How long do artists wait for some rights to clear before having the freedom to release their own works for people to hear? Again, it's a complicated system. However it needs to be one that should not keep a legendary group from releasing their material for their fans.
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