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Rap Music’s Digital Sampling Raises Copyright Questions

May 17, 1989

LOS ANGELES (AP) _ Yo, James Brown 3/8 You may be sitting in jail, but your soul’s on the loose in all kinds of songs, thanks to rap’s booming use of a musical borrowing technique called sampling.

Mixing a hunger for instant recognition with a disregard for copyright law, rappers are exploiting sophisticated electronics to lift drum beats, guitar riffs and vocal phrases from old songs and plunk them into their new works.

Through digital sampling, for example, rapper L.L. Cool J dresses up a song with Chuck Berry’s guitar licks.

Both sampling and rap are so popular that lawyers are loading up their litigation bags to handle the potential barrage of copyright lawsuits. At the heart of the debate is whether rap is a legally protected, hip-hopping art form or just high-tech cattle rustling.

″I don’t see any protection for (sampling) anywhere, ever,″ said Peter Paterno, a music industry attorney whose clients include Guns N’ Roses. ″I think every one of these guys who samples is going to lose (in court).″

Ricky Grundy, co-president and owner of Graffiti Talk Music, says there should be compensation for sampling. ″The (rappers) are not being creative. They’re using other talent to make up an idea,″ he said.

Indeed, Frank Zappa now puts this warning on his rock albums: ″Unauthorized reproduction-sampling is a violation of applicable laws and subject to criminal prosecution.″

Yet rappers and their supporters insist that this pop-culture pastiche represents rap’s essence. Without sampling, they insist, there wouldn’t be any raps worth rapping.

″That’s a part of rap - sampling,″ said Tone Loc, whose ″Wild Thing″ includes bits from Van Halen’s ″Jamie’s Crying,″ and whose ″Funky Cold Medina″ appropriates parts of Foreigner’s ″Hot Blooded.″

″You bring back old songs that you might have forgot about or never heard before. When you hear the little riff, that little tune in your head, it starts coming back to you, and it sounds good,″ said Loc, one of the few rappers who seeks permission for most of his musical raids. ″We don’t have live musicians to play for us. I never had a live drummer.″

Today’s digital technology reduces even the most complicated, multi-layered songs to individual data bits. Thus, a single tambourine hit from a ’40s classic that has been digitally rerecorded can be electronically extracted with surgical precision. It can then be stored in a computer for use with other music without missing a beat.

Discovering musical samples in current rap songs, therefore, can be a bit like Easter-egg hunts: some can’t be missed; others require a painstaking search.

De La Soul’s ″Eye Know″ borrows from Steely Dan’s ″Peg″ and Otis Redding’s ″(Sittin’ on) The Dock of the Bay.″ G-Love-E’s ″Suck on This″ contains a sequence from Three Dog Night’s ″Mama Told Me (Not to Come).″ Several years ago, the English band Frankie Goes to Hollywood’s ″Relax″ repeatedly reused a two-second drum sequence from a 1969 Led Zeppelin album.

But the biggest source of this digital dredging is James Brown, now serving a six-year sentence in South Carolina for aggravated assault and failing to stop for police.

Brown’s work has been replayed by the Fat Boys, Ice-T, Public Enemy and a host of other rappers. ″The music out there is only as good as my last record,″ Brown joked in a recent interview from jail with Rolling Stone magazine.

While an increasing number of rappers are following Tone Loc’s lead by obtaining rights and paying fees of several hundred dollars for each sample, many do not. The Beastie Boys, for one, are facing a copyright infringement suit over their song ″Hold It Now, Hit It.″ The case could be the first to establish a legal precedent for future sampling disputes.

It is alleged that the Beastie Boys - who sample the ″Psycho″ film score on their upcoming album - lifted the words ″Yo Leroy″ and some drum beats from Jimmy Castor’s 1977 single, ″The Return of Leroy (Part One).″

Chuck Ortner, a lawyer representing Beastie Boys label Def Jam Recordings, said that even if the rappers did sample from Castor, which he disputes, the band is protected in part y the Fair Use doctrine of the 1976 Copyright Act, the same doctrine that allows a college professor to photocopy a short article for a class.

″People who create rap music ...(are) basically using tapes and discs and records as musical instruments themselves,″ Ortner said. ″And ... they should be as free to do that as if they were actually playing a conventional instrument. If there is a blanket rule prohibiting this kind of activity, then it will seriously impede the development of this kind of music.″

Yet when one of Ortner’s own clients was sampled by the group Blue Mercedes not long ago, he didn’t hesitate to bring action against MCA Records, resulting in a favorable settlement for Ortner’s client, the band M-A-R-R-S. The difference between that case and the Beastie Boys’, he said, is that Blue Mercedes’ sample was far too lengthy to let pass.

But the logical extension of Ortner’s Fair Use defense, said Paul Goldstein, a professor of copyright law at Stanford Law School, is that a filmmaker could make a movie out of a popular book such as ″Gone With the Wind″ without paying royalties.

So how will the dispute be resolved? Ortner and some lawyers suggest a sliding fee scale in which rappers would pay a few cents (or less) on the sale of each record featuring sampling.

″The sampling and the use of somebody’s prior material ... is something I have no objection to,″ said Jay Morgenstern, executive vice president and general manager of music publishing giant Warner-Chappell Music. ″But if you’re going to use somebody else’s material, you should pay them a fair amount for it.

″All I have requested of the people who do it is be honest and fair: Tell us before you do it. We’ll make an arrangement with you whereby a royalty will be paid and due credit will be given.″

Beyond its financial and legal impact, sampling also might be impeding the skills of a new generation of musicians.

″I have a nephew. I tried to teach him guitar. And he said, ’Later for that,‴ said Rick Skatore, a bassist with the New York band 24-7 Spyz. ″He likes the beat box, that little Casio thing where you press a button and it plays the beat.

″And I ran across another young kid - his father has been a guitar player all his life - and the kid said, ‘I don’t like playing music, having to learn it. I’d rather sample it. I like instant gratification.’ And I said, ’Wow.‴

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