Why Sampling Law Needs to Change
We believe that the court’s decision in this case, and current sampling law in general, severely restricts the ability of sample-based musicians to create their art. In the two decades since the major record labels clamped down on sampling, this art form has been almost completely driven out of mainstream hip-hop. Classic hip-hop albums like “It Takes a Nation of Millions” and “Paul’s Boutque” simply could not be created with the current legal regime. Requiring artists to get authorization does not just put a hurdle in their way, it makes most sample based music impossible to create legally because of overwhelming financial and legal burdens.
Many people, including many musicians, believe that the right of the original artist to control their recording is more important than the right to sample. This view neglects several important points.
First, as a practical matter, the internet makes it completely unrealistic to expect that musicians can limit access or usage of their recordings. With no concern for the law, unlicensed mashups and remixes have exploded on the internet. Control over recordings has become a myth.
Second, to the extent that this issue is on of artists’ rights, it is sample based artists who have had their most fundamental right restricted– the ability to create the music that they are inspired to create. Imagine any artist or musician being told that their art-form was illegal.
And third, musicians like other artists have always built on work that has been done before them. In music, songwriters constantly borrow and build on ideas from other songs–that’s what the history of music is all about. Visual collage art by people like Picasso, Warhol, and Rauschenburg is the most direct analog to sampling and hasn’t faced the same legal shutdown. Sampled-based music is a continuation of this same art tradition but is now illegal for all practical purposes.
Downhill Battle supports a much more open approach to sampling that compensates the musicians who are being sampled while giving sample-based artists the right to do their work. Just as any musician has the right to cover a song for a flat fee without the permission of the songwriter, we support creating a similar “compulsory license” for sampling. A system of this kind would let recording artists continue to earn money from sampling (without the expensive legal middlemen) while resurrecting sampling as a thriving art form. The system could be easily implemented, but is strongly resisted by the major record labels, who are obsessed with retaining complete control over their copyrights.
Why This Project Is Legal
Despite the unfortunate state of US copyright law, there is still Constitutional free speech protection which provides a fair use exemption for parody, commentary, and protest. This project falls squarely within fair use. In many cases, corporations will sue or threaten to sue artists or organizations that exercise their fair-use rights, and the cost of fighting the suit means that most of these legal threats succeed in silencing their target even though they would certainly lose in court.