Sampling Music South Of The Border

A reader writes:

I’m an artist (hip hop), and part of the "tradition" of making good beats is
sampling from other records. Technically, this is illegal without
permission.

Apparently so. I was surprised, thinking that fair use might be a defense for very small bits of music–and it might still be–but

HERE’S A LAWYER SAYING THAT FAIR USE IS NOT A DEFENSE IN SUCH CASES.

Obviously, sometimes the spirit of the law outweighs the letter. For
example, nobody concerns themselves with crossing the street at the
crosswalk, even though it’s illegal not to do so. The spirit of the law is
safety, and so long as you follow it, it’s no sin.

Can I apply this same principle to sampling?

Potentially, but with some significant qualifiers that I’ll get into in a minute.

Theft is defined as the use of someone else’s property against the reasonable will of the owner, and I can imagine uses of short samples of music that would be so insignificant from an economic point of view that they would not be contrary to the reasonable will of the copyright holder (meaning: it would be unreasonable for the copyright holder to object).

For example, if you were making songs purely for your own entertainment and not distributing them, this would likely not be contrary to the reasonable will of the copyright holder any more than it would be for me to make a collage of pictures and passages I had snipped out of books or magazines, provided I don’t start distributing such collages. (There are other examples, but I wanted to pick a clear one, and it’s clearer if you aren’t distributing such works than if you are.)

The spirit of the sampling law
is to protect commercial profit off of someone else’s work.

True.

My music,
however, is done for God and the Church. What money I make from it, I give
to charity or I use it to make more music.

That doesn’t do anything to overturn the copyright holder’s right to remuneration, though. It may mean that you are not making money, but it doesn’t give them the money that they would be paid if you obtained permission to do this legally. They’re still out money that the law says is due to them.

I’m not distributing to millions
of people.

This means that the amount of money that the copyright holder is due will be smaller, but they’re still out money that the law says they’re due if you don’t pay it.

Since it’s not intrinsically immoral to sample, is it morally
licit for me to use small samples in my beats? It would be another matter if
I were making entire songs or records available, but these are just small
samples incorporated into the beat.

Prescing from the question of the prudence of the matter (in which you have to reckon the likelihood of getting sued and having to pay huge sums of money that you may not have) and considering the matter strictly morally, it seems to me that you might be able to morally justify sampling if you were doing it for your own entertainment and performing for others in non-commercial (nobody pays money) venues.

But if you are distributing copies (for money or not) or selling copies (even small numbers of copies or for small fees), I would suggest that you do one of the following things:

  1. Confine your sampling to the kind of uses mentioned above,
  2. Secure permission to use the samples you want to (the guy I linked above says this is often possible to do for free, and it would secure you against being sued),
  3. Lay down some material yourself that you can then sample (this would be real cheap or free if you’ve got the skills),
  4. Hire or call in a favor from some friends to get some material laid down that you can sample (this should be pretty cheap; maybe just free beer or something), or
  5. Move to Canada or another country where they have more liberal sampling laws (probably too much to ask).

Hope this helps!

Author: Jimmy Akin

Jimmy was born in Texas, grew up nominally Protestant, but at age 20 experienced a profound conversion to Christ. Planning on becoming a Protestant seminary professor, he started an intensive study of the Bible. But the more he immersed himself in Scripture the more he found to support the Catholic faith, and in 1992 he entered the Catholic Church. His conversion story, "A Triumph and a Tragedy," is published in Surprised by Truth. Besides being an author, Jimmy is the Senior Apologist at Catholic Answers, a contributing editor to Catholic Answers Magazine, and a weekly guest on "Catholic Answers Live."

7 thoughts on “Sampling Music South Of The Border”

  1. it seems to me that you might be able to morally justify sampling if you were doing it for your own entertainment and performing for others in non-commercial (nobody pays money) venues.
    Like, for instance, the Mass?

  2. I am not a huge hip-hop fan, but I believe part of the point of incorporating samples of music into a song is that the samples are of well known songs. I believe this would make points 3 and 4 moot. You do not get around the law by essentially covering the song yourself and then sampling it.

  3. “Remix” is one of the hot legal and ethical topics with the internet, Lawrence Lessig is probably the most prominent expert. Brazil is specifically tailoring their copyright statutes to allow for “remix”
    http://en.wikipedia.org/wiki/Remix_culture
    http://www.oreillynet.com/pub/a/policy/2005/02/24/lessig.html
    http://www.law.virginia.edu/home2002/html/news/2004_fall/lessig.htm
    “Fair use is what allows copyright to coexist with the 1st ammendment” – to paraphrase a supreme court finding. It would be too easy to censor everything if we could just force the copyright holders not to distribute and withold permission to redistribute.
    What normally complicates things is the digital realm where copies are perfect. Normally there is a threshold for things like quoting, collage, or the traditional remix. However when you have to break a software or hardware lock to access the media (or refill your inkjet cartridge – at least until a recent court decision) you might have fair use rights, but violate the law in accessing the media to use it fairly. I don’t envy the courts. OTOH when you have relativism dominating you have to write out every possibility in excruciating detail, and then revise it when people find holes.
    And this happened before in history – When player pianos and piano rolls came out there was a big controversy (they eventually adopted a $0.50 uniform licensing – note this was in 1900 dollars).

  4. Also note that there are some audio samples under various creative commons licenses (creativecommons.org) if you can find them.
    http://creativecommons.org/audio/
    http://creativecommons.org/weblog/archive/2004/03
    http://ccmixter.org/
    Without getting into the Chesterton/Belloc idea of distributivism, this seems to be a building “third way” between socialsim and market capitalism.
    OTOH, Opensource generally doesn’t support the culture of death like Microsoft does.

  5. That would be an idea to stop liturgical abuse, copyright the novus ordo (to the extent it is not yet copyrighted), and then charge such a high licensing fee that everyone would have to go back to the (public domain) Tridentine rite. Or at least charge for the right to do “derivative works” so everyone would perform the work as written without any adlib-eralism.

  6. For example, nobody concerns themselves with crossing the street at the crosswalk, even though it’s illegal not to do so.
    I do. It is one of the things my friends use to describe me to new people.
    “So what’s he like?”
    “Well, he’s the kind of guy who won’t cross the street unless it says WALK.”

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