Final Brief | Wild Card

Sampling or Stealing?

For my Media Law and Ethics Wild Card, I wanted to do something that circled back to plagiarism specifically in the music division. Earlier in the semester, I lightly touched on some big cases that caused uprisings in the music industry regarding plagiarism between music. While researching I found a lot of loopholes that artists could potentially use to avoid getting caught in a lawsuit.

What I want to talk about today is sampling. I feel like most people know and are familiar with sampling but for those who are not. Sampling is when an artist takes a piece of an existing song to put in their recording and makes it into something new. Sampling requires permission and can be used within certain limitations. Artists mainly sample out of inspiration, but overall sampling keeps an artist from being sued.

Sampling is so common that an entire genre was founded on demoing other tracks. That genre is Reggae. I once did a Media Presentation on the genre and I will link it here if anyone wants to learn more about Reggae and how they make music. 

One notable case of misuse of a sample is Biz Markie’s “Alone Again.” He borrowed a riff from the song “Alone Again (Naturally)” by Gilbert O’Sullivan. The rapper had to pay $250,000 in damages to continue selling the album and single. Markie was liable for theft but was never charged because he knowingly used the loop without asking for permission. After this case, major labels had to become more aware of their clients and how they made music. Additional staff was hired at Markie’s label (Warner Brothers) to prevent something like this from happening again. Biz Markie responded to the situation by releasing an album two years later titled All Samples Cleared! In the end, Markie got the last laugh and faced no consequences for using someone's music without their permission. 

Another big case that drew a lot of attention to misusing sampling is Two Live Crew recording a parody version of Roy Orbison’s “Oh, Pretty Woman” called “Pretty Woman.” It has been of the question if making parodies is considered plagiarism which is why I want to get into this case next. Acuff-Rose Music, Inc. sued Two Live Crew and their record company claiming that Two Live Crew’s song infringed on copyright. Two Live Crew’s lawyers argued that the song was a parody that used the song fairly. The Court of Appeals concluded that the song was used within their rights. 

To take a dive deeper into parodies, they are a style of a particular creator “with deliberate exaggerations for comedic effect.” In each court case, judges use a four-factor fair use analysis that is available in Section 107 in Limitations on Exclusive Rights. The first step they take is to figure out the purpose and whether the use changes the original work to have a new meaning. If the parody is presented in a new light then the odds are it will be ruled fair use. The next step is what is the nature of the work? Is it creative, factual or has it been previously published? The third step judges take is how much of the parody is new compared to the original version? And the last question they ask before making a ruling is probably the most important. Does the new work affect the market for the original work? 

The Campbell v. Acuff-Rose Music, Inc. was a case where the ruling was found in favor of the parody. The new version was different enough and didn’t take away from the existing market that existed for Roy Orbison. 

I just recently wrote about U2, so when I found the band on a list of illegal use of sampling, I knew I had to write about it. This case was really interesting and doesn’t even involve U2. In 1991, the band Negativland titled their EP U2. On the front of the EP, they displayed the title in a very large font on the packaging and the band name Negativland in smaller font. The songs on the album included parodies of U2’s well-known song “I Still Haven’t Found What I’m Looking For.” In the parody, Negativland used kazoos and samples of the original song. U2’s “U2” on the cover violated trademark laws and that they were trying to trick U2 fans into buying their album. At the time, the band was anticipating a new release and when this EP dropped fans became confused. There were only 2 songs on the EP which were “I Still Haven’t Found What I’m Looking For” (1991 A Capella Mix) and “I Still Haven’t Found What I’m Looking For” (Special Edit Radio Mix).

The court ruled in favor of U2 (the real one) and concluded that Negativland’s attempt at parodies was misleading and took away from the existing market. Soon after Negativland wrote a book about the experience called The Letter U and the Numeral 2. I thought this case was funny, because, in the end, Negativland got what they wanted, a rise out of U2.