It was in the home of Grandmaster Flash in South Bronx, in the early 1970's,
where he and DJ Kool Herc birthed what would be the greatest most successful
genre of music to bless Planet Earth. As the history goes though, it was on
11th August, 1973 when DJ Kool Herc mixed some R&B [Rhythm and Blues] records
isolating the drums and rhymed over the beat that really got the crowd "going"
at the party. That approval from the crowd is what sowed the seeds of Modern
Hip-Hop and Rap music. Grandmaster Flash would mix and master R&B record on a
drum loop for rappers to display their lyrical prowess on the beat.
Post Kool Herc's crowd moving performance Grandmaster Flash and Afrika Bambaataa
started performing shows and gained a distinctive recognition for this
particular sound within the African-American Community. Soon everyone came to
know of this sound as "Hip-Hop". Thus, one can see how the foundation of this
genre is laid on sampling previously recorded music. In fact, in the words of
the RZA of the Wu Tang Clan, member of a successful Hip-Hop group, sampling is
more like a painter's palette rather than a photocopy machine.
A sampler is the actual digital audio tool used by music producers to sample. It
can be either a stand-alone machine or software. It is similar to a synthesizer
but instead of generating sounds as a synthesizer does, it captures pre-recorded
sounds. Ultimately, sampled sounds, whether created live or adopted from a
pre-existing work, are mixed with other sounds during production. Thus, the
artist can cut and paste sampled sounds into a new musical context, either in
original or modified form.
Sampling is not used for convenience or to pass off another's creativity as
one's own. On the contrary, sampling is another way of arranging and performing
sounds in the creative process of making music. In their early days, hip hop
producers ran wild with the technology without any particular thought for, or
concern with, the legal repercussions. Public Enemy, another successful hip-hop
group, emerged and distinguished itself as a sampling-as-art trailblazer by
incorporating hundreds of samples into their legendary 1988 album, It Takes a
Nation of Millions to Hold Us Back
The group combined the samples in an
exceptional way to create a new, radical sound that would change the way music
was created and experienced. To create a masterpiece of such stature today,
would require pockets deep and heavy to pay for the "clearance" of those
samples, something underground artists barely can afford.
Many musicians take samples or parts of the song from the copyrighted works of
other musicians. If you plan to commercially release your music, you probably
will need to get written permission from the copyright owners of any music that
you are sampling or any sound that you are using. Otherwise, one can be sued for
copyright infringement which will prevent the distribution of the song. This
process involving the right to use someone's sample in a song is called sample
What Is Digital Sampling?Digital sound sampling enables an artist to appropriate the distinct tonal
qualities of a particular vocal or instrumental sound and insert it into a
different musical context. The duration of that "sound" can range from a
minute to a single second, and may be derived from a live performance or an
existing sound recording. Increasingly, studio artists source material directly
from sample "libraries" sold in compact disc or computer disc format. This
sampling process comprises three steps: Digital Recording; Computer Analysis
With Possible Alteration; And Playback.
The sampling unit that carries out this process has been described as "a
computerized combination of a tape recorder and a camera". Sounds are stored in
the memory of the sampler's microprocessor. Once the sound is in the sampler,
the musician can then use the sampler's built-in functions to alter the
parameters of the sound if desired.
It is virtually impossible to detect any
discrepancy between the original sound and its playback equivalent since the
computerized resolution corresponds to the upper range detectable by the human
ear. Once digitally recorded, the sound may be reproduced exactly or altered in
anyway. For example, pitch, rhythm, speed, tone, timbre, or volume can be
modified at the touch of a button. The artist then typically inserts the sample
into a separate composition.
Either the sample is used to punctuate the new track at various intervals or it
can be 'looped' in continuous repetition to provide backing rhythm. With this
technology, artists can thereby record entire "new" songs combining elements
from previous songs: a drum beat from one source, a melody from a second, a
vocal from a third, guitar riffs from a fourth, a horn blast from another and so
on. More frequently, artists create hybrid songs by merging samples from other
works with their own original music.
Sampler As A Music InstrumentThe sampler is considered a musical instrument and an essential tool of the
trade by hip hop producers, rather than just an innovative technological tool.
Sampled copyright holders, on the other hand, frequently see the sampler as a
theft device that jeopardises the commercial viability of their intellectual
property. Hip hop artists acknowledge this duality, and in many cases even
embrace it as the type of counter-culture 'Robin Hood-ism' that historically
has fuelled resistance movements of the disenfranchised.
The sampler is not only used in hip-hop but is used widely throughout the music
industry. The cultural origins and artistic motivations of sampling in hip hop
music extend to and through New York, Jamaica, and Africa, making sampling
especially important to the genre and culture. The artistic process of
digital sampling, like the music that results from it, is rooted in and
inextricably linked to the African diasporic aesthetic, which carefully selects
available media, texts, and contexts for performance use. Part of that
diasporic experience is rooted in Jamaica, the birthplace of the DJ who brought
Jamaican travelling parties to the Bronx.
The Conundrum Of Copyright Laws Regarding Music Sampling
It would be imperative in this regard that we analyse Indian and American laws
that govern the sampling of music and bring out the differences between the two
legal regimes. The United States of America is one of the pioneers of having
strict laws to protect Intellectual Property Rights. This is also evident in the
massive role played by the US in the development of the TRIPS Agreement through
a different approach in negotiations.
The US effectively implements
intricate laws that ensure copyrights and govern licensing and sampling. Quite
distinguishingly, the US Copyright law defines "literary works" and
"sound-recording" interrelatedly, yet having a different interpretation.
"Literary works" are defined as, "works, other than audio-visual works,
expressed in words, numbers, or other verbal or numerical symbols or indicia,
regardless of the nature of the material objects, such as books, periodicals,
manuscripts, phonorecords, film, tapes, disks, or cards, in which they are
While a "sound-recording" is defined as, "works that result from the
fixation of a series of musical, spoken, or other sounds, but not including the
sounds accompanying a motion picture or other audio-visual work, regardless of
the nature of the material objects, such as disks, tapes, or other phonorecords,
in which they are embodied."
Indian Copyright Act, 1957 also differentiates quite similarly, between 'musical
works' and 'sound recording'. The Copyright Act is designed to protect the
rights of the owners of the musical works. If the composer composes music for a
film and is incorporated in the sound track, the producer alone has copyright
and the composer has none. Composer's right under Section 13(4) is only
otherwise than as part of the film.
First owner of the copyright of lyrics and
musical works shall be the authors unless it is shown that such work was made in
course of author's employment under a contract of service or apprenticeship with
his employer and there is no agreement to the contrary as regards retention of
The word 'original' does not in this connection mean that the
work must be the expression or original or inventive thought. Copyright Acts are
not concerned with the origin of ideas, but with the expression of thought; and
in the case of 'literary work' with the expression of thought in print or
writing. The originality which is required relates to the expression of the
thought; but the Act does not require that the expression must be in an original
or novel form, but that the work must not be copied from another work, that it
should originate from the author.
Let us now understand Copyright Law regarding sound recordings and their
Copyright Laws: A Short Analysis
Copyright, in case of a musical work, has been defined, in India, as an
exclusive right to reproduce the work or store in electronic means, to issue new
copies to the public, to perform the work in public, to make any cinematograph
film or sound recording, to make any translation, make any adaptation of the
work; in case of a sound recording, to make any other sound recording embodying
it, to sell it, to communicate the recording to the public.
Copyright is a multiple right consisting of a bundle of different rights in the
same work. Author of a copyright work either assigns the whole or part of his
rights to others to exploit economically for a lumpsum consideration. In
alternative, he may licence all or some of his rights to others usually on the
basis of a royalty payment. An assignment may be general i.e., without
limitations or an assignment may be subject to limitations. It may be for the
whole term of the copyright or any part thereof. An assignment transfers an
interest in, and deals with the copyright itself as provided under Section 14 of
the Act, but licence does not convey the copyright but only grants a right to do
something, which in the absence of licence would be unlawful.
The Indian Copyright Act differs vastly from the American Act, the Indian Act
does not specifically address the issue of 'sampling' of work. It delves into
areas of protection of the rights of the owner of the copyright and has,
jurisprudentially, developed the permissibility of sampling the original 'sound
recording' to create a new 'sound recording'. As far as sampling of music goes,
the US Law operates, taking a hard-line approach, through the creation of
various provisions under Section 114.
The first clause excludes the performance of sound recordings in public, while
affirming a majority of the rights enlisted under Section 106. The second clause
is where we focus our analysis, it lays down that the right of the owner of
copyright is only limited to right to duplicate the sound recording in form of
copies and the right to prepare a derivative work is only available so long as
the actual sounds are rearranged and/or remixed. A derivative work is a song
that is derived from another existing work of music, this right, to make a
derivative work, of the owner does not however extend to other sound recordings
that may have sampled or imitated the copyrighted sound recording.
This means that if a person were to sing and publish a song already sung,
performed and published by another band, that band would only have the copyright
over the copies of their song and not the song being sung by the person even if
the lyrics and instrumentals are the exact same. This was established by a very
famous case law, Bleistein v. Donaldson Lithographing Company
Holmes delivered the opinion of the Supreme Court, in this regard, as:
Even if they had been drawn from the life, that fact would not deprive them
of protection. The opposite proposition would mean that a portrait by
Velasquez or Whistler was common property because others might try their
hand on the same face. Others are free to copy the original. They are not
free to copy the copy.
Further, Section 115 lays down the need for obtaining compulsory license from
the owner of copyright to enjoy any of the rights laid down under Section
106(1), (2) and (3), which includes the right to make a derivative work.
115(a)(1)(A) entails the purpose of such license to make and distribute phonorecords of a nondramatic musical work, including by means of digital
A person may obtain a compulsory license only if the
primary purpose in making phonorecords of the musical work is to distribute them
to the public for private use, including by means of digital phonorecord
delivery. The regime that changes unauthorised sampling for producers is
further listed in (2)(A) of the same section as a privilege of obtaining a
license, musical arrangement. This clause states that the licensee can arrange
the sound recording without changing its melody or essence unless expressly
consented to by the owner of the copyright.
A similarity needs to be drawn between the express requirement of a license in
the US Law and the Indian law. Section 18, 19 of the Copyright Act, 1957
specifies the requirement of a license from the first owner of the copyright in
order to reproduce or exercise any right exclusive to the copyright owner. In
the matter of Deshmukh and Co. (Publishers) (P) Ltd. v. Avinash Vishnu Khandekar
the Hon'ble Court differentiated substantially the provisions of Sections 18 and
19 of assigning copyrights and licensing of copyright.
An assignment transfers
title in the copyright, a licence merely permits certain things to be done by
the licensee. The assignee being invested with the title in the copyright may
reassign. The licence is personal, and therefore, not transferable or assignable
without the grantor's consent. Furthermore, the assignee can sue for
infringement without joining the assignor. The licensee cannot sue in his own
name for infringement of the copyright, since copyright belongs to the licensor.
The copyright comprises of schedule rights which can be exercised independent of
each other. The licence is a personal right which cannot be transferred except
in certain circumstances. Licence is a right to do some positive act. Licence is
a personal right and creates no more personal obligation between a licensor and
licensee. The licence is generally revocable at the will of the grantor.
There are different kinds of licences. A licence may be exclusive or
non-exclusive licence means a licence which confers on licensor or licensee and
persons authorised by him to the exclusion of all other persons (including the
owner of the copyright) any right comprised in the copyright in a work. In the
case of non-exclusive licence, the owner of copyright retains the right to grant
licences to more than one person or to exercise it himself. Licence is a
personal right and licensee may not always be entitled to make alterations to
The pronouncement of the US Supreme Court in Bleistein case is solely why high
school bands in the US can "cover" famous songs and put them on a tape for
distribution. The point of concern here is, if only the owner of the copyright
or the licensee has the right to make derivative works from the original sound
recordings, are the producers, that sample such works to form another
independent work, guilty of infringement? The answer to this question calls for
an analysis of a landmark judgement and the provisions in Act concerning
What Is Copyright Infringement?
Section 501, defines copyright infringement as when any person without
permission or authorisation infringes one or many rights of the copyright owner.
However, the infringement of such a right has to be proved by the owner of the
copyright in the sense that he has to show unlawful appropriation of his work by
Unlawful appropriation of original work was extensively discussed
in the case of Newton v. Diamond
, in which a test was laid down to determine
what amounts to infringement. The US Court of Appeals was to decide whether the
"choir" made by the plaintiff was infringed by the Beastie Boys, another
hip-hop/rock group, or if the use was so unsubstantial so as to not amount to
The Court remarkably relied on the age-old settled doctrine of de minimis use,
which is short for de minimis non curat lex. This means that, the law does not
concern itself with trifles. This is a widely used defence in cases of copyright
infringement, which is to say that the sample used is a minimal use of the
In Newton's case, the Court held that unless an original work has
been substantially copied it will not be regarded as copyright infringement,
through the Chief Judge who pronounced that, "even where the fact of copying is
conceded, no legal consequences will follow from that fact unless the copying is
substantial. The principle that trivial copying does not constitute actionable
infringement has long been a part of copyright law."
De minimis use is essentially based on the average-audience rule, which is to
say, it is considered as infringement if the average audience can recognise the
sample copied or taken from the original work. It creates a bridge between
minimal use and substantial similarity rule, which is that if the average
listener, unless they are looking for similarities between the work and the
sample, can make out the similarity between the two works regarding one as the
other, then the work is said to be substantially similar to the sampled
Music samples used in creation of hip-hop music are not very often litigated for
copyright infringement, since they are considered as minimal use. The thin line
between infringement and non-infringement lies in the provisions created by
Section 107, in terms of fair use. Fair use as described by Section 107 is a
limitation on the exclusive rights that the owner of the copyright enjoys.
Precisely, fair use means when any copyrighted work is, for the purposes of
education, criticism, comment and research, copied or used, it will not amount
to infringement of copyright. In furtherance of the doctrine of de minimis and
fair use we must understand the case law developed regarding sampling of music
in the famous Bridgeport case.
Bridgeport V. Dimension Films
In this case the company Bridgeport Music Inc. and Westbound Records along with
other plaintiffs sued Dimension Films, No Limits Films and 800 other defendants
for copyright infringement due to blatant sampling of music without
permission, one of the cases, that caught the public eye and quite
fortunately resulted in settlement of the law when it comes to the defence of de
minimis against copyright infringement, was the case against No Limits Films.
The dispute arose from the digital sampling of Funkadelic's, a rock band, song
"Get Off Your Ass and Jam" (hereinafter referred to as "Get Off") by N.W.A. in
their song 100 Miles and Runnin
(hereinafter referred to as 100 Miles) for
the film "I Got the Hook Up" produced by No Limits Films.
Bridgeport took the matter to a federal judge, who ruled that the incident did
not violate copyright law. The United States Court of Appeals for the Sixth
Circuit overturned the decision, ruling that the sampling violated copyright
law. Their argument was that, in the case of a sound recording, the owner of the
copyright of a work had the exclusive right to duplicate the work.
A certain sound recording of Get Off
was sampled and looped
for 16 beats on five occasions on the song 100 Miles
while the district court was appreciative of
the de minimis defence used by No Limits Films, the court of appeal did see it
that way, the court theorised that what cannot be stolen wholly cannot also be
stolen in parts, thus redefining the de minimis defence when it comes to
unauthorised sampling of copyrighted songs and highlighting the provisions of
Section 114(b), i.e., only the copyright owner has the exclusive right to sample
the music thereby forming a derivative work.
According to this interpretation of
copyright law, using any section of a work, regardless of length, would be a
violation of copyright unless the copyright owner granted permission. In its
decision, the court wrote: "Get a license or do not sample. We do not see this
as stifling creativity in any significant way."
Due to this ruling of the Court of Appeal, the Copyright law in the US
concerning sampling of music has taken a turn, now the producers cannot sample
any song for commercial release without authorisation from the owner of the
copyright. This feeds into a monopolistic narrative, wherein majority of artists
make music "for hire" for record label companies that sell licenses and
copyrights at rather unaffordable rates.
The Bridgeport decision, which logically may be sound, in the sense of its
ruling in the stolen property, it fails to appreciate the complexities of
creation of music and honour the fact that for transformative change and
innovation in music, the building blocks are the existing work which are not
only a stepping stone in terms of learning but also a contribution to the
development of new music.
Artists Flouting Sampling Laws
Vast majority of sampling cases settle out of court for substantial sums. This
is largely because litigation usually pitches the plaintiff record company
against the sampler's record company as co-defendant, and the record companies
are all too aware that their positions could be reversed at any time; that is,
today's plaintiff could be tomorrow's defendant. Therefore, private settlements
are preferred because they avoid the cost of litigation, the risk of spawning a
series of retaliatory actions and, most importantly, the risk of the court
setting an adverse precedent.
Yet many artists flout sampling laws and use unauthorized samples mainly due to
2 barriers. The first barrier is a practical one. For an artist to obtain
permission to use the sample, the copyright owner(s) must be identified. Yet it
is often difficult to trace the copyright owner because copyright in an artist's
music may be split among several different companies. For example, when San
Francisco attorney Mark Grundberg attempted to get permission for his client
The Evolution Committee, to sample a Public Enemy song, he was referred to
eight different people at three different record companies over a period of two
months because nobody knew who had authority to license the material. Tracking
down the correct copyright owners would probably be even more difficult in the
case of older or more obscure material.
The second barrier to authorized sampling is financial. Assuming an artist is
able to locate the copyright owner and is granted permission to use the sample,
a licensing fee is payable. By all accounts, the costs involved in obtaining
licenses are substantial. According to Michael Ashburne, an American copyright
lawyer, "it costs between 30 and 40 thousand US dollars for a record that
utilises sampling extensively."
Why Licensing & Copyright Is So Strict?
The Copyright Act protects original works of authorship fixed in a tangible
medium of expression. However, both traditional and current concepts of
copyright are premised on a paradigm that presumes borrowing is generally
antithetical to creativity and innovation and that creative works worthy of
protection are always created independently.
This presumption, beyond being
largely unsubstantiated, actually has an onerous impact on musicians who
historically have used collaboration and borrowing regularly in the creative
process. Additionally, this unsupported presumption has disregarded the
importance of copying in the creative process and has left its value
under-appreciated and under-theorized in copyright doctrine.
As per the Copyright Law of the United States, anyone who, without the consent
of the performers involved:
- Fixes the sounds or sounds and images of a live musical performance
in a copy or phonorecord, or reproduces copies or
phonorecords of such a performance from an unauthorized fixation,
- Transmits or otherwise communicates to the public the sounds or
sounds and images of a live musical performance, or
- distributes or offers to distribute, sells or offers to sell, rents
or offers to rent, or traffics in any copy or phonorecord
fixed as described in paragraph, regardless of whether the fixations occurred in
the United States, shall be subject to the remedies provided in sections 502
through 505, to the same extent as an infringer of copyright. This is known as
Unauthorized Fixation and Trafficking in Sound Recordings and Music Videos.
Whether Copyright Laws Are Stifling Creativity In Any Significant Way?
Only one can stifle their own creativity. Music is a form of art that inspires
artists for generations to come. It is but natural for an artist to pay homage
to a song that established his love for this industry and sometimes artists
portray this inspiration by using a significant but small part of the song in
their own work, which for them is the best tribute they can give to an artist
whose songs and existence they are grateful for.
The modern music industry is a multi-billion dollar business. It is an industry
founded, in particular, upon intellectual property rights and copyright.
Consequently, record companies are swift to enforce their rights in order to
maintain and increase their market share. In this respect, unauthorised sampling
is not just a matter of exploiting the work of the original artist - indeed, it
threatens to undermine the economic structure of the music industry.
same lines, not all artists are fortunate enough to be recognised and be a part
of the economic structure of this industry. Many artists include samples from
songs and samples available on the internet in their work in order to complete
the song and release it on platforms that support such budding artists such as
Most commonly, an artist samples in order to create an association between a
prior work and his or her own composition. This motivation may be honourable, as
in the case where an artist wants to pay tribute to the work of a musician whose
work he or she admires. For example, on the Garbage Album, Version 2.0, the song
"Push It" features authorised samples from the Beach Boys' Brian Wilson and solo
artist Chrissie Hynde. The band felt that sampling was a way of paying homage to
Creativity is defined as the tendency to generate or recognize ideas,
alternatives, or possibilities that may be useful in solving problems,
communicating with others, and entertaining ourselves and others. Creative
tendencies can be influenced by already existing forms of art which push artists
and entertainers to take inspiration from original songs to include in their own
One may argue that the limited scope of copyright fails to recognise inspiration
within its purview. By broadly terming something as an infringement of copyright
takes away the very essence of Hip Hop which is built on taking inspiration from
an already published work of music. However, copyright laws do not ban
unlicensed sampling of music nor do they ban 'free samples' which come from
The laws only rely on a simple doctrine of Substantial
Similarity, if an unlicensed sample is used in a sound recording and the
audience cannot recognise that sample as the original work of art, in that case,
the sampling is substantially different and unique from the original work of
art. Substantial similarity only plays at the laws of infringement if a sample
is similar to the original work of art, then it falls under copyright
Inferentially, it may seem as if the Copyright Laws are limiting the growth of
an art form that is built on the foundation of skillful arrangement of various
sounds, the reality, however, is to the contrary. In fact, the settled
principles of law regarding copyright infringement, be it in the United States
of America or India, dictate that while to use any sound recording for the
purposes of reproduction of that recording, the consent of the first owner is
necessary, this rule may not apply where a sound recording has been reproduced
but a listener of the sampled recording cannot tell if it was copied or same as
the original recording.
To elaborate, the surest and safest test to determine whether or not there has
been a violation of copyright is to see if the reader, spectator or the viewer
after having read or seen both the works is clearly of the opinion and gets an
unmistakable impression that the subsequent work appears to be a copy of the
Thereafter, the Hon'ble Supreme Court developed a two prong test
for copyright infringement, this test determines whether the rights of a
copyright-holder have been infringed. The test requires substantial similarity
between the original and infringing works, and the challenged work to be a copy
of the original work.
In Eastern Book Company v. D.B. Modak
 the Supreme Court laid down
that in order to test whether a piece of work has been infringed, one must test
it on the following grounds:
- Substantial Similarity
The Court first examined if the concerned work is original or if there are any
substantial similarities between the original work and the work in question. The
original work should be the product of an exercise of skill and judgment and it
is a workable yet fair standard. The sweat of the brow approach to originality
is too low a standard which shifts the balance of copyright protection too far
in favour of the owner's right and fails to allow copyright to protect the
public's interest in maximising the production and dissemination of intellectual
works. On the other hand, the creativity standard of originality is too
When it came to the test of substantial similarity, the test laid down by this
Hon'ble Court in the case of R.G. Anand is widely accepted and followed by the
Courts. The Court, in the Eastern Book case, elucidated further that the
selection and arrangement can be viewed as typical and at best the result of the
labour, skill and investment of capital lacking even minimal creativity. It does
not as a whole display sufficient originality so as to amount to an original
work of the author.
To support copyright, there must be some substantive variation and not merely a
trivial variation, not the variation of the type where limited/unique ways of
expression are available and an author selects one of them which can be said to
be a garden variety. Novelty or invention or innovative idea is not the
requirement for protection of copyright but it does require minimal degree of
creativity. The aforesaid inputs put by the appellants in the copy-edited
judgments do not touch the standard of creativity required for copyright.
It was further emphasised by the Hon'ble Court that Setting of paragraphs by the
appellants of their own in the judgment entailed the exercise of the brain work,
reading and understanding of subject of disputes, different issues involved,
statutory provisions applicable and interpretation of the same and then dividing
them in different paragraphs so that chain of thoughts and process of statement
of facts and the application of law relevant to the topic discussed is not
disturbed, would require full understanding of the entire subject of the
Making paragraphs in a judgment could not be called a mechanical process. It
requires careful consideration, discernment and choice and thus it can be called
as a work of an author. Creation of paragraphs would obviously require extensive
reading, careful study of subject and the exercise of judgment to make paragraph
which has dealt with particular aspect of the case, and separating intermixing
of a different subject.
Creation of paragraphs by separating them from the passage would require
knowledge, sound judgment and legal skill. This exercise and creation thereof
have a flavour of minimum amount of creativity. Therefore, keeping the jurisprudence in mind, sampling of music is something
that is allowed.
In fact, the stringency of the laws pertaining to protection of
the original work serve two purposes:
- The obvious protection of the copyright
- Encouraging diversification in the production of music by laying down
the four corners what is considered creativity and originality.
The Hon'ble Court has recognised the effort and skill that goes into
rearrangement of various sound recordings each 'tweaked' to sound substantially
different from the original work and mixing these recordings perfectly to form a
rhythm and mix entirely different from the original work of the samples used.
If anything, the Copyright regime established encourages the growth of Hip-Hop
Music by condoning and acknowledging the effort, creativity and skill that goes
into production of music by setting clear and fair boundaries of what is
considered as copying and what is inspired work substantially different than the
Hip-Hop Producers can only use these four-corners to skilfully master and mix
samples so as to reflect their study, knowledge, and understanding of the
original works to change that sound entirely into something different and what
propels growth is its greed for skill and effort.
Hip Hop was a term in the early 80s that most people looked down upon as
compared to its exponential outreach and recognition that now unites cultures
and people around the world. Hip Hop involves sampling a lot of previously
published music, sampling is an intricate skill that has been misunderstood by
many as stealing
an artist's original work. To the contrary, when we look
at the works of Kanye West, Dr Dre, DJ Premier and Alchemist to name a few, we
understand that sampling is a means and not an end that inspires a number
people, including the abovenamed to be the torch-bearers and keep the flame of
Hip Hop burning.
Copyright laws are enacted to protect the artists' original music. While many
may construe these laws as a hinderance to the growth of Hip Hop, for example
when J. Cole said on his 2014 album Forest Hills Drive that he wishes that
whatever music is released should be open to use by other artists.
He doesn't ignore the fact that the person who has made the original music has
certain copyrights over it, thereby, implying while copyright laws exist to
protect the original work, they end up encouraging creativity in the manner in
which the music is sampled. Copyright laws leave an open window when they lay
down the test for copyright infringement. To fit through that window, is the
benchmark that new producers can work up to and end up exponentially taking the
game ahead. To conclude, an artist is never bound by law, their art is.
- Lynch, J., 2018. For the first time in history, hip-hop has surpassed
rock to become the most popular music genre, according to Nielsen. [online]
Business Insider. Available at: [Accessed 28 July 2021].
- Davey D, The History of Hip Hop, Davey D'S Hip Hop Corner, http://www.daveyd.com/raptitle.html
(last visited 26th July, 2021).
- Zack O'Malley Greenburg, The Man Who Invented Hip Hop, FORBES, http://www.forbes.com/2009/07/09/afrika-bambaataa-hip-hop-music-business-entertainment-cash-kings-bambaataa.html.
- The Rza, The Wu-Tang Manual 192 (2005).
- Byram, "Digital Sound Sampling and a Federal Right of Publicity: Is it
Live or is it MacIntosh?" (1990) 10 Computer Law Journal 365.
- Sievwright, Its No Use Crying: The Copyright Implications of Digital
Sampling (1992) (unpublished thesis, University of Auckland) 4.
- How Copyright Law Changed Hip Hop: An Interview with Public Enemy's
Chuck D and Hank Shocklee, STAY FREE!
- Henry Self, Digital Sampling: A Cultural Perspective, 9 UCLA ENT. L.
REV. 347, 358 (2002)
- Andrew Bartlett, Airshafts, Loudspeakers, and the Hip Hop Sample:
Contexts and African American Musical Aesthetics, 28 AF. AM. REV. 639 (1994)
- Wto.org. n.d. WTO | Understanding the WTO - Intellectual property:
protection and enforcement. [online] Available at: [Accessed 31 July 2021].
- Indian Performing Right Society Ltd. v. Eastern Indian Motion Pictures
Assn., (1977) 2 SCC 820.
- University of London Press Ltd. v. University Tutorial Press Ltd.,
(1916) 2 Ch 601 and Macmillan & Co. Ltd. v. K. and J. Cooper, (1923-24) 51
IA 109: AIR 1924 PC 75, 85.
- Indian Performing Rights Society v. Eastern Indian Motion Pictures
Association [AIR 1977 SC 1443].
- Deshmukh and Co. (Publishers) (P) Ltd. v. Avinash Vishnu Khandekar,
(2005) 3 Mah LJ 387.
- (1903) 188 U.S. 239.
- Deshmukh and Co. (Publishers) (P) Ltd. v. Avinash Vishnu Khandekar,
(2005) 3 Mah LJ 387.
- Deshmukh and Co. (Publishers) (P) Ltd. v. Avinash Vishnu Khandekar,
(2005) 3 Mah LJ 387.
- Section 115(a)(2), U.S.C.
- 388 F.3d 1189 (9th Cir. 2003).
- Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986).
- Bridgeport Music, inc. v. Dimension Films 410 f.3d 792 (6th Cir. 2005).
- James Meyer of Polygram Ltd, quoted in Upton & Mende, "Deconstructing
Music Sampling: Questions Arise and Practice Becomes Increasingly Common"
(1997) 218 (87) New York Law Journal, S3 Col I ay 57
- Ashbume, "Sampling Issues in the Music Industry" (1994) 212 (10) New
York Law Journal 5, 6
- Sievwright, Its No Use Crying: The Copyright Implications of Digital
Sampling (1992) (un- published thesis, University of Auckland) 4.
- Garbage Interview: 1998 Album Release, MTV On-line @
- Human Motivation, 3rd ed., by Robert E. Franken, Pg 396.
- R.G. Anand v. Delux Films, (1978) 4 SCC 118.
- K.M. Gopakumar and V.K. Unni, Perspectives on Copyright: The "Karishma"
Controversy, 38 Economic & Political Weekly 2935, 2935 (2003
- (2008) 1 SCC 1.
- CCH Canadian Ltd. v. Law Society of Upper Canada 204 F Supp 2d 1244,
1249-50 (C.D. Cal 2002).
- Eastern Book Company v. D.B. Modak, (2008) 1 SCC 1.
- Eastern Book Company v. D.B. Modak, (2008) 1 SCC 1.
- Arjun Divekar And
- Esham Karanjikar