110-514: Illegal Art is a sampling record label that was started in 1998. The label gained immediate notoriety from legal threats surrounding Deconstructing Beck , a compilation made exclusively from sampling Beck 's music. This was followed by two other theme-based compilations, Extracted Celluloid and Commercial Ad Hoc . All three were co-released with Negativland 's Seeland Records label and sponsored by RTMark . After these theme-based compilations, Illegal Art focused on artist releases. One of
220-697: A prima facie case can be defeated without relying on fair use. For instance, the Audio Home Recording Act establishes that it is legal, using certain technologies, to make copies of audio recordings for non-commercial personal use. Some copyright owners claim infringement even in circumstances where the fair use defense would likely succeed, in hopes that the user will refrain from the use rather than spending resources in their defense. Strategic lawsuit against public participation (SLAPP) cases that allege copyright infringement, patent infringement, defamation, or libel may come into conflict with
330-558: A doctrine in United States law that permits limited use of copyrighted material without having to first acquire permission from the copyright holder. Fair use is one of the limitations to copyright intended to balance the interests of copyright holders with the public interest in the wider distribution and use of creative works by allowing as a defense to copyright infringement claims certain limited uses that might otherwise be considered infringement. The U.S. "fair use doctrine"
440-483: A thumbnail in online search results did not even weigh against fair use, "if the secondary user only copies as much as is necessary for his or her intended use". However, even the use of a small percentage of a work can make the third factor unfavorable to the defendant, because the "substantiality" of the portion used is considered in addition to the amount used. For instance, in Harper & Row v. Nation Enterprises ,
550-408: A Fair Use Standard . Blanch v. Koons is another example of a fair use case that focused on transformativeness. In 2006, Jeff Koons used a photograph taken by commercial photographer Andrea Blanch in a collage painting. Koons appropriated a central portion of an advertisement she had been commissioned to shoot for a magazine. Koons prevailed in part because his use was found transformative under
660-590: A chill through the industry that is still felt". In the Washington Post , Chris Richards wrote in 2018 that no case had exerted more influence on pop music, likening it to banning a musical instrument. Some have accused the law of restricting creativity, while others argue that it forces producers to innovate. Since the O'Sullivan lawsuit, samples on commercial recordings have typically been taken either from obscure recordings or cleared, an often expensive option only available to successful acts. According to
770-549: A commodity, and yet sampling has never been more risky". Sampling can help popularize the sampled work. For example, the Desiigner track " Panda " (2015) reached number one on the Billboard Hot 100 after Kanye West sampled it on " Father Stretch My Hands, Pt. 2 " (2016). Some record labels and other music licensing companies have simplified their clearance processes by "pre-clearing" their records. For example,
880-423: A fair use defense would likely succeed. The simple reason is that the license terms negotiated with the copyright owner may be much less expensive than defending against a copyright suit, or having the mere possibility of a lawsuit threaten the publication of a work in which a publisher has invested significant resources. Fair use rights take precedence over the author's interest. Thus the copyright holder cannot use
990-496: A few seconds in length, but this increased with improved memory . In 1988, Akai released the first MPC sampler, which allowed users to assign samples to pads and trigger them independently, similarly to playing a keyboard or drum kit. It was followed by competing samplers from companies including Korg , Roland and Casio . Today, most samples are recorded and edited using digital audio workstations (DAWs) such as Pro Tools and Ableton Live . As technology has improved,
1100-496: A mainstream audience by the BBC Radiophonic Workshop , which used the techniques to produce soundtracks for shows including Doctor Who . In the 1960s, Jamaican dub reggae producers such as King Tubby and Lee "Scratch" Perry began using recordings of reggae rhythms to produce riddim tracks, which were then deejayed over. Jamaican immigrants introduced the techniques to American hip hop music in
1210-491: A message," and that he was not "trying to create anything with a new meaning or a new message." However, the artist's intended message "is not dispositive." Instead, the focus of the transformative use inquiry is how the artworks will "reasonably be perceived". The transformativeness inquiry is a deceptively simple test to determine whether a new work has a different purpose and character from an original work. However, courts have not been consistent in deciding whether something
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#17327825239621320-612: A negotiated settlement. In August 2008, Judge Jeremy Fogel of the Northern District of California ruled in Lenz v. Universal Music Corp. that copyright holders cannot order a deletion of an online file without determining whether that posting reflected "fair use" of the copyrighted material. The case involved Stephanie Lenz, a writer and editor from Gallitzin, Pennsylvania , who made a home video of her thirteen-month-old son dancing to Prince's song " Let's Go Crazy " and posted
1430-448: A non-binding disclaimer, or notification, to revoke the right of fair use on works. However, binding agreements such as contracts or licence agreements may take precedence over fair use rights. The practical effect of the fair use doctrine is that a number of conventional uses of copyrighted works are not considered infringing. For instance, quoting from a copyrighted work in order to criticize or comment upon it or teach students about it,
1540-506: A non-profit educational website that reproduces whole articles from technical magazines will probably be found to infringe if the publisher can demonstrate that the website affects the market for the magazine, even though the website itself is non-commercial. Fair use is decided on a case-by-case basis, on the entirety of circumstances. The same act done by different means or for a different purpose can gain or lose fair use status. The Oracle America, Inc. v. Google, Inc. case revolves around
1650-470: A piano by playing the recording back at different pitches. The result better resembled a real piano than sounds generated by synthesizers. Compared to later samplers, the Fairlight was limited; it allowed control over pitch and envelope , and could only record a few seconds of sound. However, the sampling function became its most popular feature. Though the concept of reusing recordings in other recordings
1760-434: A separate two-volume work of his own. The court rejected the defendant's fair use defense with the following explanation: [A] reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism. On the other hand, it is as clear, that if he thus cites the most important parts of the work, with a view, not to criticize, but to supersede
1870-562: A similar defense. However, the Court in the case at bar rejected the idea that file-sharing is fair use. A U.S. court case from 2003, Kelly v. Arriba Soft Corp. , provides and develops the relationship between thumbnails , inline linking , and fair use. In the lower District Court case on a motion for summary judgment , Arriba Soft's use of thumbnail pictures and inline linking from Kelly's website in Arriba Soft's image search engine
1980-739: A use from being found fair, even though it makes it less likely. Likewise, the noncommercial purpose of a use makes it more likely to be found a fair use, but it does not make it a fair use automatically. For instance, in L.A. Times v. Free Republic , the court found that the noncommercial use of Los Angeles Times content by the Free Republic website was not fair use, since it allowed the public to obtain material at no cost that they would otherwise pay for. Richard Story similarly ruled in Code Revision Commission and State of Georgia v. Public.Resource.Org , Inc. that despite
2090-401: A variety of other essential tracks, and his critically acclaimed Nothing to Fear: A Rough Mix , an hour-long mashup that was produced for Solid Steel/BBC London and hailed as "the closest to a masterpiece the genre has produced." As of 2024, Illegal Art's website states that the label has been on an "indefinite hiatus" since 2012. Sampling (music) In sound and music , sampling
2200-472: A work against adverse criticism. As explained by Judge Leval, courts are permitted to include additional factors in their analysis. One such factor is acknowledgement of the copyrighted source. Giving the name of the photographer or author may help, but it does not automatically make a use fair. While plagiarism and copyright infringement are related matters, they are not identical. Plagiarism (using someone's words, ideas, images, etc. without acknowledgment)
2310-552: A work does not bar a finding of fair use. It simply makes the third factor less favorable to the defendant. For instance, in Sony Corp. of America v. Universal City Studios, Inc. copying entire television programs for private viewing was upheld as fair use, at least when the copying is done for the purposes of time-shifting . In Kelly v. Arriba Soft Corporation , the Ninth Circuit held that copying an entire photo to use as
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#17327825239622420-623: A work, and gave the example of two artists both demanding more than 50%, a mathematical impossibility. He instead advocated for a process of clearing samples on a musicological basis, by identifying how much of the composition the sample comprises. According to Fact , early hip hop sampling was governed by "unspoken" rules forbidding the sampling of recent records, reissues, other hip hop records or non-vinyl sources, among other restrictions. These rules were relaxed as younger producers took over and sampling became ubiquitous. In 2017, DJ Shadow said that he felt that "music has never been worth less as
2530-501: Is a creative act. In the 1940s, the French composer Pierre Schaeffer developed musique concrète , an experimental form of music created by recording sounds to tape , splicing them, and manipulating them to create sound collages . He used sounds from the human body, locomotives, and kitchen utensils. The method also involved tape loops , splicing lengths of tape end to end so a sound could be played indefinitely. Schaeffer developed
2640-434: Is a matter of professional ethics, while copyright is a matter of law, and protects exact expression, not ideas. One can plagiarize even a work that is not protected by copyright, for example by passing off a line from Shakespeare as one's own. Conversely, attribution prevents accusations of plagiarism, but it does not prevent infringement of copyright. For example, reprinting a copyrighted book without permission, while citing
2750-551: Is another important early work of sampling, incorporating samples of sources including Arabic singers , radio DJs and an exorcist . Musicians had used similar techniques before, but, according to the Guardian writer Dave Simpson, sampling had never before been used "to such cataclysmic effect". Eno felt the album's innovation was to make samples "the lead vocal". Big Audio Dynamite pioneered sampling in rock and pop with their 1985 album This Is Big Audio Dynamite . Sampling
2860-531: Is classified as an 'affirmative defense,' we hold—for the purposes of the DMCA—fair use is uniquely situated in copyright law so as to be treated differently than traditional affirmative defenses. We conclude that because 17 U.S.C. § 107 created a type of non-infringing use, fair use is "authorized by the law" and a copyright holder must consider the existence of fair use before sending a takedown notification under § 512(c)." In June 2011, Judge Philip Pro of
2970-404: Is composed almost entirely of samples, most of which were cleared "easily and affordably"; the clearance process would be much more expensive today. The Washington Post described the modern use of well known samples, such as on records by Kanye West , as an act of conspicuous consumption similar to flaunting cars or jewelry. West has been sued several times over his use of samples. In 2000,
3080-504: Is considered a fair use. Certain well-established uses cause few problems. A teacher who prints a few copies of a poem to illustrate a technique will have no problem on all four of the above factors (except possibly on amount and substantiality), but some cases are not so clear. All the factors are considered and balanced in each case: a book reviewer who quotes a paragraph as an example of the author's style will probably fall under fair use even though they may sell their review commercially; but
3190-475: Is generally broader than the " fair dealing " rights known in most countries that inherited English Common Law . The fair use right is a general exception that applies to all different kinds of uses with all types of works. In the U.S., fair use right/exception is based on a flexible proportionality test that examines the purpose of the use, the amount used, and the impact on the market of the original work. The doctrine of "fair use" originated in common law during
3300-632: Is one of the foundations of hip hop , which emerged in the 1980s. Hip hop sampling has been likened to the origins of blues and rock , which were created by repurposing existing music. The Guardian journalist David McNamee wrote that "two record decks and your dad's old funk collection was once the working-class black answer to punk ". Before the rise of sampling, DJs used turntables to loop breaks from records, which MCs would rap over. Compilation albums such as Ultimate Breaks and Beats compiled tracks with drum breaks and solos intended for sampling, aimed at DJs and hip hop producers . In 1986,
3410-702: Is permitted. In Grand Upright Music, Ltd. v. Warner Bros. Records Inc (1991) and Bridgeport Music, Inc. v. Dimension Films (2005), American courts ruled that unlicensed sampling, however minimal, constitutes copyright infringement. However, VMG Salsoul v Ciccone (2016) found that unlicensed samples constituted de minimis copying, and did not infringe copyright. In 2019, the European Court of Justice ruled that modified, unrecognizable samples could be used without authorization. Though some artists sampled by others have complained of plagiarism or lack of creativity, many commentators have argued that sampling
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3520-466: Is protected under American fair use laws, which grant "limited use of copyrighted material without permission from the rights holder". The American musician Richard Lewis Spencer , who owned the copyright for the widely sampled Amen break , never received royalties for its use as the statute of limitations for copyright infringement had passed by the time he learnt of the situation. The journalist Simon Reynolds likened it to "the man who goes to
3630-463: Is the extent to which the use is transformative . In the 1994 decision Campbell v. Acuff-Rose Music Inc , the U.S. Supreme Court held that when the purpose of the use is transformative, this makes the first factor more likely to favor fair use. Before the Campbell decision, federal Judge Pierre Leval argued that transformativeness is central to the fair use analysis in his 1990 article, Toward
3740-642: Is the reuse of a portion (or sample ) of a sound recording in another recording. Samples may comprise elements such as rhythm, melody, speech, or sound effects. A sample can be brief and only incorporate a single musical note (as is the case with sample-based synthesis ), or it can consist of longer portions of music (such as a drumbeat or complete melody), and may be layered, equalized , sped up or slowed down, repitched, looped , or otherwise manipulated. They are usually integrated using electronic music instruments ( samplers ) or software such as digital audio workstations . A process similar to sampling originated in
3850-639: Is transformative. For instance, in Seltzer v. Green Day, Inc., 725 F.3d 1170 (9th Cir. 2013), the court found that Green Day's use of Seltzer's copyrighted Scream Icon was transformative. The court held that Green Day's modifications to the original Scream Icon conveyed new information and aesthetics from the original piece. Conversely, the Second Circuit came to the opposite conclusion in a similar situation in Andy Warhol Foundation for
3960-593: Is undisputed that Hoehn posted the entire work in his comment on the Website. ... wholesale copying does not preclude a finding of fair use. ... there is no genuine issue of material fact that Hoehn's use of the Work was fair and summary judgment is appropriate." On appeal, the Court of Appeals for the Ninth Circuit ruled that Righthaven did not even have the standing needed to sue Hoehn for copyright infringement in
4070-592: The Court of Chancery established the doctrine of "fair abridgement", which permitted unauthorized abridgement of copyrighted works under certain circumstances. Over time, this doctrine evolved into the modern concepts of fair use and fair dealing . Fair use was a common-law (i.e. created by judges as a legal precedent ) doctrine in the U.S. until it was incorporated into the Copyright Act of 1976 , 17 U.S.C. § 107 . The term "fair use" originated in
4180-646: The District of Nevada ruled in Righthaven v. Hoehn that the posting of an entire editorial article from the Las Vegas Review-Journal in a comment as part of an online discussion was unarguably fair use. Judge Pro noted that "Noncommercial, nonprofit use is presumptively fair. ... Hoehn posted the Work as part of an online discussion. ... This purpose is consistent with comment, for which 17 U.S.C. § 107 provides fair use protection. ... It
4290-629: The E-mu Emulator , Akai S950 and Akai MPC . Sampling is a foundation of hip hop music , which emerged when producers in the 1980s began sampling funk and soul records, particularly drum breaks . It has influenced many other genres of music, particularly electronic music and pop . Samples such as the Amen break , the " Funky Drummer " drum break and the orchestra hit have been used in thousands of recordings, and James Brown , Loleatta Holloway , Fab Five Freddy and Led Zeppelin are among
4400-514: The European Court of Justice ruled that the producers Moses Pelham and Martin Haas had illegally sampled a drum sequence from the 1977 Kraftwerk track " Metal on Metal " for the Sabrina Setlur song "Nur Mir". The court ruled that permission was required for recognizable samples; modified, unrecognizable samples could still be used without authorization. Fair use Fair use is
4510-501: The Guardian , "Sampling became risky business and a rich man's game, with record labels regularly checking if their musical property had been tea-leafed." For less successful artists, the legal implications of using samples pose obstacles; according to Fact , "For a bedroom producer, clearing a sample can be nearly impossible, both financially and in terms of administration." By comparison, the 1989 Beastie Boys album Paul's Boutique
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4620-457: The Phonogene , which played loops at 12 different pitches triggered by a keyboard. Composers including John Cage , Edgar Varèse , Karheinz Stockhausen and Iannis Xenakis experimented with musique concrète, and Bebe and Louis Barron used it to create the first totally electronic film soundtrack, for the 1956 science fiction film Forbidden Planet . Musique concrète was brought to
4730-402: The 18th and 19th centuries as a way of preventing copyright law from being too rigidly applied and "stifling the very creativity which [copyright] law is designed to foster." Though originally a common law doctrine, it was enshrined in statutory law when the U.S. Congress passed the Copyright Act of 1976 . The U.S. Supreme Court has issued several major decisions clarifying and reaffirming
4840-590: The 1940s with musique concrète , experimental music created by splicing and looping tape . The mid-20th century saw the introduction of keyboard instruments that played sounds recorded on tape, such as the Mellotron . The term sampling was coined in the late 1970s by the creators of the Fairlight CMI , a synthesizer with the ability to record and playback short sounds. As technology improved, cheaper standalone samplers with more memory emerged, such as
4950-411: The 1969 track "Amen, Brother", known as the Amen break , became popular with American hip hop producers and then British jungle producers in the early 1990s. It has been used in thousands of recordings, including songs by rock bands such as Oasis and theme tunes for television shows such as Futurama , and is among the most sampled tracks in music history. Other widely sampled drum breaks came from
5060-635: The 1970 James Brown song " Funky Drummer "; the Think break , sampled from the 1972 Lyn Collins song " Think (About It) ", written by Brown; and Led Zeppelin 's 1971 recording of " When the Levee Breaks ", played by John Bonham and sampled by artists including the Beastie Boys , Dr. Dre , Eminem and Massive Attack . In 2018, the Smithsonian cited the most sampled track as " Change
5170-515: The 1970s. Holger Czukay of the experimental German band Can spliced tape recordings into his music before the advent of digital sampling. The Guardian described the Chamberlin as the first sampler, developed by the English engineer Harry Chamberlin in the 1940s. The Chamberlin used a keyboard to trigger a series of tape decks, each containing eight seconds of sound. Similar technology
5280-549: The 1980s, samples were incorporated into synthesizers and music workstations , such as the bestselling Korg M1 , released in 1988. The Akai MPC , released in 1988, had a major influence on electronic and hip hop music, allowing artists to create elaborate tracks without other instruments, a studio or formal music knowledge. Its designer, Roger Linn , anticipated that users would sample short sounds, such as individual notes or drum hits, to use as building blocks for compositions; however, users sampled longer passages of music. In
5390-746: The 1990s to add fair use cases to their dockets and concerns. These include the Electronic Frontier Foundation ("EFF"), the American Civil Liberties Union , the National Coalition Against Censorship , the American Library Association , numerous clinical programs at law schools, and others. The " Chilling Effects " archive was established in 2002 as a coalition of several law school clinics and
5500-823: The American producer Frank Dukes , has been used by artists including Drake , Kanye West , Kendrick Lamar , and J. Cole . In 2020, the US Library of Congress created an open-source web application that allows users to sample its copyright-free audio collection. Instead of sampling, artists may recreate a recording, a process known as interpolation. This requires only the musical content owner's permission, and creates more freedom to alter constituent components such as separate guitar and drum tracks. Sampling has influenced many genres of music, particularly pop, hip hop and electronic music. The Guardian journalist David McNamee likened its importance in these genres to
5610-465: The Beat " by Fab Five Freddy , which appears in more than 1,150 tracks. According to WhoSampled , a user-edited website that catalogs samples, James Brown appears in more than 3000 tracks, more than any other artist. The Independent named Loleatta Holloway as the most sampled female singer in popular music. Her vocals were sampled in house and dance tracks such as " Ride on Time " by Black Box ,
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#17327825239625720-615: The Bridgeport judgement was decided in an American Federal court of appeal , lower courts ruling on similar issues are bound to abide by it. However, in the 2016 case VMG Salsoul v Ciccone , the United States Court of Appeals for the Ninth Circuit ruled that Madonna did not require a license for a short horn sample in her 1990 song " Vogue ". The judge Susan Graber wrote that she did not see why sampling law should be an exception to standard de minimis law. In 2019,
5830-542: The Copyright Act of 1976, which is codified at 17 U.S.C. § 107 . They were intended by Congress to clarify rather than to replace, the prior judge-made law. As Judge Pierre N. Leval has written, the statute does not "define or explain [fair use's] contours or objectives." While it "leav[es] open the possibility that other factors may bear on the question, the statute identifies none." That is, courts are entitled to consider other factors in addition to
5940-535: The EFF to document the use of cease and desist letters. In 2006 Stanford University began an initiative called the " Fair Use Project " (FUP) to help artists, particularly filmmakers, fight lawsuits brought against them by large corporations. Examples of fair use in United States copyright law include commentary, search engines, criticism, parody , news reporting, research, and scholarship. Fair use provides for
6050-530: The Los Angeles record label Now-Again Records has cleared songs produced for West and Pusha T in a matter of hours. The owner of sampled material may not always be traceable, and such knowledge is commonly mislaid through corporate mergers, closures and buyouts. For example, Eddie Johns, the author of a song sampled in the 2000 Daft Punk track " One More Time ", has never been located. As of 2021, he
6160-492: The Second Circuit in Cariou v. Prince , 714 F.3d 694 (2d. Cir. 2013) shed light on how transformative use is determined. "What is critical is how the work in question appears to the reasonable observer, not simply what an artist might say about a particular piece or body of work." The district court's conclusion that Prince's work was not transformative is partly based on Prince's deposition testimony that he "do[es]n't really have
6270-530: The Secret Life of Plants may have been the first album to make extensive use of samples. The Japanese electronic band Yellow Magic Orchestra were pioneers in sampling, constructing music by cutting fragments of sounds and looping them. Their album Technodelic (1981) is an early example of an album consisting mostly of samples. My Life in the Bush of Ghosts (1981) by David Byrne and Brian Eno
6380-493: The U.S. Supreme Court held that a news article's quotation of fewer than 400 words from President Ford 's 200,000-word memoir was sufficient to make the third fair use factor weigh against the defendants, because the portion taken was the "heart of the work". This use was ultimately found not to be fair. The fourth factor measures the effect that the allegedly infringing use has had on the copyright owner's ability to exploit his original work. The court not only investigates whether
6490-588: The United States. Although related, the limitations and exceptions to copyright for teaching and library archiving in the U.S. are located in a different section of the statute. A similar-sounding principle, fair dealing, exists in some other common law jurisdictions but in fact it is more similar in principle to the enumerated exceptions found under civil law systems. Civil law jurisdictions have other limitations and exceptions to copyright. In response to perceived over-expansion of copyrights, several electronic civil liberties and free expression organizations began in
6600-617: The Visual Arts, Inc. v. Goldsmith, 11 F.4th 26 (2d. Cir. 2021). In that case, the Warhol Foundation sought a declaratory judgment that Warhol's use of one of Goldsmith's celebrity photographs was fair use. The court held that Warhol's use was not transformative because Warhol merely imposed his own style on Goldsmith's photograph and retained the photograph's essential elements. Although the Supreme Court has ruled that
6710-416: The album until the song was removed. The journalist Dan Charnas criticized the ruling, saying it was difficult to apply conventional copyright laws to sampling and that the American legal system did not have "the cultural capacity to understand this culture and how kids relate to it". In 2005, the writer Nelson George described it as the "most damaging example of anti-hip hop vindictiveness", which "sent
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#17327825239626820-570: The artist) into American copyright law as "bizarre and contradictory" because it sometimes grants greater protection to works that were created for private purposes that have little to do with the public goals of copyright law, than to those works that copyright was initially conceived to protect. This is not to claim that unpublished works, or, more specifically, works not intended for publication, do not deserve legal protection, but that any such protection should come from laws about privacy, rather than laws about copyright. The statutory fair use provision
6930-434: The availability of copyright protection should not depend on the artistic quality or merit of a work, fair use analyses consider certain aspects of the work to be relevant, such as whether it is fictional or non-fictional. To prevent the private ownership of work that rightfully belongs in the public domain, facts and ideas are not protected by copyright —only their particular expression or fixation merits such protection. On
7040-564: The bestselling single of 1989 in the UK. The orchestra hit originated as a sound on the Fairlight, sampled from Stravinsky's 1910 orchestral work Firebird Suite , and became a hip hop cliché. MusicRadar cited the Zero-G Datafiles sample libraries as a major influence on 90s dance music, becoming the "de facto source of breakbeats, bass and vocal samples". To legally use a sample, an artist must acquire legal permission from
7150-429: The case matter was narrowed down to whether Google's use of the definition and SSO of Oracle's Java APIs (determined to be copyrightable) was within fair use. The Federal Circuit Court of Appeals has ruled against Google, stating that while Google could defend its use in the nature of the copyrighted work, its use was not transformative, and more significantly, it commercially harmed Oracle as they were also seeking entry to
7260-401: The copyright holder, a potentially lengthy and complex process known as clearance. Sampling without permission can breach the copyright of the original sound recording, of the composition and lyrics, and of the performances, such as a rhythm or guitar riff. The moral rights of the original artist may also be breached if they are not credited or object to the sampling. In some cases, sampling
7370-406: The court clarified that this is not a "hard evidentiary presumption" and that even the tendency that commercial purpose will "weigh against a finding of fair use ... will vary with the context." The Campbell court held that hip-hop group 2 Live Crew 's parody of the song " Oh, Pretty Woman " was fair use, even though the parody was sold for profit. Thus, having a commercial purpose does not preclude
7480-457: The creation of the thumbnails. To the contrary, the thumbnail searches could increase the exposure of the originals. In looking at all these factors as a whole, the court found that the thumbnails were fair use and remanded the case to the lower court for trial after issuing a revised opinion on July 7, 2003. The remaining issues were resolved with a default judgment after Arriba Soft had experienced significant financial problems and failed to reach
7590-454: The defendant's right to freedom of speech , and that possibility has prompted some jurisdictions to pass anti-SLAPP legislation that raises the plaintiff's burdens and risk. Although fair use ostensibly permits certain uses without liability, many content creators and publishers try to avoid a potential court battle by seeking a legally unnecessary license from copyright owners for any use of non-public domain material, even in situations where
7700-474: The defendant's specific use of the work has significantly harmed the copyright owner's market, but also whether such uses in general, if widespread, would harm the potential market of the original. The burden of proof here rests on the copyright owner, who must demonstrate the impact of the infringement on commercial use of the work. For example, in Sony Corp v. Universal City Studios , the copyright owner, Universal , failed to provide any empirical evidence that
7810-450: The entertainment industry. This prompted him to invoke the fair use doctrine, which permits limited use of copyrighted material to provide analysis and criticism of published works. In 2009, fair use appeared as a defense in lawsuits against filesharing . Charles Nesson argued that file-sharing qualifies as fair use in his defense of alleged filesharer Joel Tenenbaum . Kiwi Camara , defending alleged filesharer Jammie Thomas , announced
7920-669: The fact that it is a non-profit and did not sell the work, the service profited from its unauthorized publication of the Official Code of Georgia Annotated because of "the attention, recognition, and contributions" it received in association with the work. Another factor is whether the use fulfills any of the preamble purposes, also mentioned in the legislation above, as these have been interpreted as "illustrative" of transformative use. In determining that Prince's appropriation art could constitute fair use and that many of his works were transformative fair uses of Cariou's photographs,
8030-498: The factors to be considered shall include: The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. The four factors of analysis for fair use set forth above derive from the opinion of Joseph Story in Folsom v. Marsh , in which the defendant had copied 353 pages from the plaintiff's 12-volume biography of George Washington in order to produce
8140-532: The fair use doctrine since the 1980s, the most recent being in the 2021 decision Google LLC v. Oracle America, Inc. The 1710 Statute of Anne, an act of the Parliament of Great Britain, created copyright law to replace a system of private ordering enforced by the Stationers' Company . The Statute of Anne did not provide for legal unauthorized use of material protected by copyright. In Gyles v Wilcox ,
8250-404: The fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use
8360-830: The film in a history book on the subject in Time Inc v. Bernard Geis Associates . In the decisions of the Second Circuit in Salinger v. Random House and in New Era Publications Int'l v. Henry Holt & Co , the aspect of whether the copied work has been previously published was considered crucial, assuming the right of the original author to control the circumstances of the publication of his work or preference not to publish at all. However, Judge Pierre N. Leval views this importation of certain aspects of France's droit moral d'artiste ( moral rights of
8470-503: The film's use of their footage, specifically footage of the firefighters discussing the collapse of the World Trade Center . With the help of an intellectual property lawyer, the creators of Loose Change successfully argued that a majority of the footage used was for historical purposes and was significantly transformed in the context of the film. They agreed to remove a few shots that were used as B-roll and served no purpose to
8580-552: The first album created entirely from samples. The E-mu SP-1200 , released in 1987, had a ten-second sample length and a distinctive "gritty" sound, and was used extensively by East Coast producers during the golden age of hip hop of the late 1980s and early 90s. Commonly sampled elements include strings, basslines, drum loops, vocal hooks or entire bars of music, especially from soul records. Samples may be layered, equalized , sped up or slowed down, repitched, looped or otherwise manipulated. A seven-second drum break in
8690-402: The first fair use factor. The Campbell case also addressed the subfactor mentioned in the quotation above, "whether such use is of a commercial nature or is for nonprofit educational purposes." In an earlier case, Sony Corp. of America v. Universal City Studios, Inc. , the Supreme Court had stated that "every commercial use of copyrighted material is presumptively ... unfair." In Campbell ,
8800-458: The four statutory factors. The first factor is "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes." To justify the use as fair, one must demonstrate how it either advances knowledge or the progress of the arts through the addition of something new. In the 1841 copyright case Folsom v. Marsh , Justice Joseph Story wrote: "[A] reviewer may fairly cite largely from
8910-419: The greater discussion. The case was settled and a potential multimillion-dollar lawsuit was avoided. This Film Is Not Yet Rated also relied on fair use to feature several clips from copyrighted Hollywood productions. The director had originally planned to license these clips from their studio owners but discovered that studio licensing agreements would have prohibited him from using this material to criticize
9020-464: The hip hop group N.W.A . were successfully sued for their use of a two-second sample of a Funkadelic song in the 1990 track " 100 Miles and Runnin' ". The United States Court of Appeals for the Sixth Circuit ruled that all samples, no matter how short, required a license. A judge wrote: "Get a license or do not sample. We do not see this as stifling creativity in any significant way." As
9130-525: The importance of the guitar in rock. In August 2022, the Guardian noted that half of the singles in the UK Top 10 that week used samples. Sampling is a fundamental element of remix culture . Using the Fairlight, the "first truly world-changing sampler", the English producer Trevor Horn became the "key architect" in incorporating sampling into pop music in the 1980s. Other users of the Fairlight included Kate Bush , Peter Gabriel and Thomas Dolby . In
9240-509: The jazz flautist James Newton filed a claim against the Beastie Boys' 1992 single " Pass the Mic ", which samples his composition "Choir". The judge found that the sample, comprising six seconds and three notes, was de minimis (small enough to be trivial) and did not require clearance. Newton lost appeals in 2003 and 2004. In the 2005 case Bridgeport Music, Inc. v. Dimension Films ,
9350-422: The legal, unlicensed citation or incorporation of copyrighted material in another author's work under a four-factor test . The U.S. Supreme Court has traditionally characterized fair use as an affirmative defense , but in Lenz v. Universal Music Corp. (2015) (the "dancing baby" case), the U.S. Court of Appeals for the Ninth Circuit concluded that fair use was not merely a defense to an infringement claim, but
9460-480: The mobile market. However, the U.S. Supreme Court reversed this decision, deciding that Google's actions satisfy all four tests for fair use, and that granting Oracle exclusive rights to use Java APIs on mobile markets "would interfere with, not further, copyright's basic creativity objectives." In April 2006, the filmmakers of the Loose Change series were served with a lawsuit by Jules and Gédéon Naudet over
9570-548: The most popular artists on the label is Girl Talk (Gregg Gillis), who in 2006 released his third album, Night Ripper , to critical acclaim on the label, earning a Wired magazine Rave Award a year later. Illegal Art also released the Steinski Retrospective , spanning his work from 1983 to 2006. It includes the legendary "Lessons", which have been described as "one of the most desirable and prized bootleg recordings in hip hop" (Antidote). It also contains
9680-438: The most sampled artists. The first album created entirely from samples, Endtroducing by DJ Shadow , was released in 1996. Sampling without permission can infringe copyright or may be fair use . Clearance , the process of acquiring permission to use a sample, can be complex and costly; samples from well-known sources may be prohibitively expensive. Courts have taken different positions on whether sampling without permission
9790-578: The music company had acted in bad faith by ordering removal of a video that represented fair use of the song. On appeal, the Court of Appeals for the Ninth Circuit ruled that a copyright owner must affirmatively consider whether the complained of conduct constituted fair use before sending a takedown notice under the Digital Millennium Copyright Act, rather than waiting for the alleged infringer to assert fair use. 801 F.3d 1126 (9th Cir. 2015). "Even if, as Universal urges, fair use
9900-438: The original artwork was. Second, the photographs had already been published, diminishing the significance of their nature as creative works. Third, although normally making a "full" replication of a copyrighted work may appear to violate copyright, here it was found to be reasonable and necessary in light of the intended use. Lastly, the court found that the market for the original photographs would not be substantially diminished by
10010-464: The original author, would be copyright infringement but not plagiarism. The U.S. Supreme Court described fair use as an affirmative defense in Campbell v. Acuff-Rose Music, Inc. This means that in litigation on copyright infringement, the defendant bears the burden of raising and proving that the use was fair and not an infringement. Thus, fair use need not even be raised as a defense unless
10120-422: The original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism. On the other hand, it is as clear, that if he thus cites the most important parts of the work, with a view, not to criticise, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy ." A key consideration in later fair use cases
10230-403: The other hand, the social usefulness of freely available information can weigh against the appropriateness of copyright for certain fixations. The Zapruder film of the assassination of President Kennedy , for example, was purchased and copyrighted by Time magazine. Yet its copyright was not upheld, in the name of the public interest, when Time tried to enjoin the reproduction of stills from
10340-482: The plaintiff first shows (or the defendant concedes) a prima facie case of copyright infringement. If the work was not copyrightable, the term had expired, or the defendant's work borrowed only a small amount , for instance, then the plaintiff cannot make out a prima facie case of infringement, and the defendant need not even raise the fair use defense. In addition, fair use is only one of many limitations, exceptions, and defenses to copyright infringement. Thus,
10450-482: The possibilities for manipulation have grown. Samples are distributed in sample libraries, also known as sample packs. In the 1990s, sample libraries from companies such as Zero-G and Spectrasonics had a major influence on contemporary music. In the 2000s, Apple introduced "Jam Packs" sample libraries for its DAW GarageBand . In the 2010s, producers began releasing sample packs on online platforms such as Splice . The Kingsway Music Library, created in 2015 by
10560-442: The results weighed together, in light of the purposes of copyright" has helped modulate this emphasis in interpretation. In evaluating the fourth factor, courts often consider two kinds of harm to the potential market for the original work. Courts recognize that certain kinds of market harm do not negate fair use, such as when a parody or negative review impairs the market of the original work. Copyright considerations may not shield
10670-456: The sperm bank and unknowingly sires hundreds of children". Clyde Stubblefield , the performer of the widely sampled drum break from " Funky Drummer ", also received no royalties. DJ Shadow said that artists tended to either see sampling as a mark of respect and a means to introduce their music to new audiences, or to be protective of their legacy and see no benefit. He described the difficulty of arranging compensation for each artist sampled in
10780-476: The tracks " South Bronx ", " Eric B. is President " and " It's a Demo " sampled the funk and soul tracks of James Brown , particularly a drum break from " Funky Drummer " (1970), helping popularize the technique. The advent of affordable samplers such as the Akai MPC (1988) made looping easier. Guinness World Records cites DJ Shadow 's acclaimed hip hop album Endtroducing (1996), made on an MPC60, as
10890-466: The use of Betamax had either reduced their viewership or negatively impacted their business. In Harper & Row, the case regarding President Ford's memoirs, the Supreme Court labeled the fourth factor "the single most important element of fair use" and it has enjoyed some level of primacy in fair use analyses ever since. Yet the Supreme Court's more recent announcement in Campbell v. Acuff-Rose Music Inc that "all [four factors] are to be explored, and
11000-597: The use of application programming interfaces (APIs) used to define functionality of the Java programming language, created by Sun Microsystems and now owned by Oracle Corporation. Google used the APIs' definition and their structure, sequence and organization (SSO) in creating the Android operating system to support the mobile device market. Oracle had sued Google in 2010 over both patent and copyright violations, but after two cycles,
11110-425: The use of the original work, and substitute the review for it, such a use will be deemed in law a piracy ... In short, we must often ... look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work. The statutory fair use factors quoted above come from
11220-635: The video on YouTube . Four months later, Universal Music , the owner of the copyright to the song, ordered YouTube to remove the video under the Digital Millennium Copyright Act . Lenz notified YouTube immediately that her video was within the scope of fair use, and she demanded that it be restored. YouTube complied after six weeks, rather than the two weeks required by the Digital Millennium Copyright Act. Lenz then sued Universal Music in California for her legal costs, claiming
11330-408: The words of Greg Milner, author of Perfecting Sound Forever , musicians "didn't just want the sound of John Bonham's kick drum, they wanted to loop and repeat the whole of ' When the Levee Breaks '." Linn said: "It was a very pleasant surprise. After 60 years of recording, there are so many prerecorded examples to sample from. Why reinvent the wheel?" Stevie Wonder's 1979 album Journey Through
11440-453: Was amended in response to these concerns by adding a final sentence: "The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors." The third factor assesses the amount and substantiality of the copyrighted work that has been used. In general, the less that is used in relation to the whole, the more likely the use will be considered fair. Using most or all of
11550-429: Was an expressly authorized right, and an exception to the exclusive rights granted to the author of a creative work by copyright law: "Fair use is therefore distinct from affirmative defenses where a use infringes a copyright, but there is no liability due to a valid excuse, e.g., misuse of a copyright." Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A ,
11660-600: Was found not to be fair use. That decision was appealed and contested by Internet rights activists such as the Electronic Frontier Foundation , who argued that it was fair use. On appeal, the Ninth Circuit Court of Appeals found in favor of the defendant, Arriba Soft. In reaching its decision, the court utilized the statutory four-factor analysis. First, it found the purpose of creating the thumbnail images as previews to be sufficiently transformative, noting that they were not meant to be viewed at high resolution as
11770-561: Was not new, the Fairlight's design and built-in sequencer simplified the process. The Fairlight inspired competition, improving sampling technology and driving down prices. Early competitors included the E-mu Emulator and the Akai S950 . Drum machines such as the Oberheim DMX and Linn LM-1 incorporated samples of drum kits and percussion rather than generating sounds from circuits. Early samplers could store samples of only
11880-521: Was owed an estimated "six-to-seven-figure sum" based on streams. In 1989, the Turtles sued De La Soul for using an unlicensed sample on their album 3 Feet High and Rising . The Turtles singer Mark Volman told the Los Angeles Times : "Sampling is just a longer term for theft. Anybody who can honestly say sampling is some sort of creativity has never done anything creative." The case
11990-496: Was popularised in the 60s with the Mellotron . In 1969, the English engineer Peter Zinovieff developed the first digital sampler, the EMS Musys . The term sample was coined by Kim Ryrie and Peter Vogel to describe a feature of their Fairlight CMI synthesizer, launched in 1979. While developing the Fairlight, Vogel recorded around a second of piano performance from a radio broadcast and discovered that he could imitate
12100-502: Was settled out of court and set a legal precedent that had a chilling effect on sampling in hip hop. In 1991, the songwriter Gilbert O'Sullivan sued the rapper Biz Markie after Markie sampled O'Sullivan's " Alone Again (Naturally) " on the album I Need a Haircut . In Grand Upright Music, Ltd. v. Warner Bros. Records Inc , the court ruled that sampling without permission infringed copyright. Instead of asking for royalties, O'Sullivan forced Markie's label Warner Bros . to recall
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