It seems that there is a shift in the ‘fair use’ policy for samples. Previously there have been numerous cases involving a tiny sample being used within a song in an unrecognizable state causing a lot of trouble for the songwriter who used the sample.
One such case that has been going on for a while involves the band Kraftwerk
Here is a 30 second run down about ‘fair use’ and how it relates to music. There has existed a rule that if you want to you can photocopy up to 10% of a copyrighted book for specific uses without permission. Within music though, there has never been an acceptable amount of ‘fair use’ because whole songs can be created from less then 10% of a song. Imagine the average song goes for 3minutes or 180 seconds… 10% = 18seconds. EASY to do.
Go Here for a more in depth look at fair use
Now this line has been getting blurred as more cases appear where the sample can no longer be recognized due to how mangled it gets during the creation process.
The argument is that the original ‘hook’ that existed in the original song is no longer present in the mashed-up version and so should be allowed. The flip side to this argument is the fact that what is being used is copyrighted property, the recording contains just as much copyright as the songwriting element and in fact in this instance would seem to be more important as the muscians are ‘defacing’ the property -an equivalent would be drawing a moustache on Princess Diana’s portrait and then selling it. There really is a lot of gray area within this topic.
As i mentioned at the start of the article it seems like the law is relaxing in this regard as Kraftwerk has lost their lawsuit against the songwriters who used their sample mainly for the reason listed above. The sample used wasn’t easily recognizable nor was it a VITAL focus point of the new song –it wasn’t a focus point like say the sample is within Walk this Way by RUN DMC. (This case is slightly different as permission was sought and granted.)
It seems though that within a fast-paced world we REALLY NEED to streamline and automate the process of using samples, whether through ‘fair use’ or through a set percentage of songwriting/recording royalty for each sample used. I’m all for seeing the artist get their dues for songs that they wrote themselves, but certainly it would be good for all involved if the process was streamlined to allow unhindered NEW and FRESH creativity.
Further Reading about Sampling and Music