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The Basics

Most of the discussion of sampling and appropriation in the news and in courtrooms is focused on copyright infringement that’s already happened and the fair-use defense or other defenses that artists raise in court.  For example, the collage artist Shepard Fairey is currently facing a copyright lawsuit from the Associated Press based on the photograph he manipulated to create his iconic Obama Hope poster.  Fair use is an important part of copyright that facilitates the creation of new works, but litigation like this can be quite costly.  Many potential conflicts are avoided if artists work out licensing arrangements for the sampled material beforehand or obtain their material from the public domain or under Creative Commons licenses.

Some cases never make it to court because a copyright holder issues a DMCA Takedown Notice to an Internet or online service provider, and the service provider removes the material (while giving notice to the poster).

In rare cases involving company logos, sampling and appropriation may lead to a suit over trademarks, which have additional protections beyond copyright.

The sampling of music or appropriating photographs and other images raise a range of potential issues.

Copyright Infringement

A copyright holder has to meet two basic requirements to bring an infringement lawsuit against you: 1) she or he has to own the copyright to the work in question, and 2) she or he has to point to a specific instance where you’ve copied or modified the work without permission.

Proving ownership of the copyright is pretty easy in cases where the song has already been recorded or the picture has already been published.

Proving copying is also fairly straightforward – even if you’ve re-recorded the music yourself, re-painted a picture (or cast it in a different medium), or made minor changes, it can still be considered a copy so long as a court determines that your work is “substantially similar” to the original.

The “substantial similarity” requirement offers artists protection, in some cases, for small amounts of copying. However, there is no hard and fast rule on how much is too much, and at least one court has ruled that any digital copying of music, no matter how small, could be copyright infringement.

Fair Use

The fair-use defense is built into copyright law to allow creative people to build on others’ work without having to obtain permission.  This defense is complicated because the court is required to consider four separate factors on a case-by-case basis to decide whether a particular use is fair, meaning that it may be difficult to predict the outcome of a case ahead of time.  One of the factors could weigh strongly toward one side, while the other three weighed mildly on the other, and the court could decide the case either way.

Despite the lack of clear instructions on how to compare these factors, courts usually rely most on the first factor (“the purpose and character of the use”) and the fourth factor (“the effect of the use upon the potential market for or value of the copyright”).

The four factors, and some discussion of how courts evaluate each one, are outlined below:

  • “The purpose and character of the use.”  Copyright law specifically grants more leeway to nonprofit or educational uses, but even commercial uses can be fair. One of the key questions that artists will usually face is whether their work is transformative.  “Transformative” means more than simply taking another piece of work and casting it in a new medium; it requires using it for a different purpose or to view the original in a different light. Parody has often proven to be a successful fair-use defense, and it requires a critique of the specific, original work – use of the work as a more general satire receives less protection under the fair-use test.

  • “The nature of the copyrighted work.”  One factor to consider is whether the work has been previously published: if not, then copying is less likely to be found fair. Additionally, some aspects of a work may be more protected than others.  For example, a photographer’s composition, angles, and lighting may be more protected by copyright than her or his subject.  Finally, a literary or artistic work, compared to a collection of factual information, is likely to be more protected because the creativity at stake is closer to the core concerns of copyright. Use of less protected works or parts of a work is more likely to be permitted.

  • “The amount and substantiality of the portion used in relation to the copyrighted work as a whole.”  This factor is tricky, because in some cases it may be fair to copy the entire copyrighted work.  This question is really about whether the right proportion is used in relation to the purpose and character of the use.  A good parody or critique may require borrowing a substantial portion of the original so that it can conjure up the original in the minds of the audience. For musical sampling, however, even very short samples often fail to be fair under this factor.

  • “The effect of the use upon the potential market for or value of the copyrighted work.”  One question that courts ask is whether the consumer audience will substitute the new work for the original. If not, the use may be fair.  Another that courts will ask is whether this sort of copying harms the original artist’s ability to license the work.  Bear in mind that certain kinds of harm to the market for the original can still be fair, like the reduction in sales that may result from a scathing criticism or parody.

Permission and Licenses

One way to avoid a copyright battle is to obtain permission beforehand, because a licensed use is protected from an infringement suit.  There are several possible difficulties that an artist may face in obtaining a license: licenses usually cost money, copyright owners may be difficult to locate and have no obligation to respond to requests, and copyright ownership for certain works may be ambiguous because of the number of contracts that have been made behind the scenes, like those that musicians often sign with record companies.

The difficulty of obtaining permission will depend on who you’re dealing with and what you plan to do with your work: obtaining permission to sample a local artist’s song for your own local performances will be easier than obtaining permission to copy a professional photographer’s prints in a painting that you intend to sell for thousands of dollars.

When you’re working out a license, it’s also important to pay attention to the terms of the agreement, because a copyright holder can allow certain forms of copying or adaptation while refusing others.  You need to have permission to do the specific kind of work you plan to do.

A particular complication that sampling artists may run into is that many musical works have two separate copyrights, one held by the composer of the score and another by the studio that distributes the recording.

Public Domain and Creative Commons

Some works are pre-licensed for artists to use in sampling and appropriation.  Anything published before 1923 is in the public domain – and thus free to use – as is any work created by the U.S. government.  Artists can also specifically release their content into the public domain, or offer special licenses such as those drafted by Creative Commons, to allow others to freely copy or use their work under certain specified conditions.

DMCA Takedown Notice

Congress passed the Digital Millennium Copyright Act (DMCA) in 1998 to make a number of changes to copyright law, including a new set of "notice and takedown" procedures that give copyright holders a quicker means of removing unauthorized content from the Internet than an infringement lawsuit.

Under the DMCA, copyright holders who believe their work is being infringed online can send a notice to a service provider (like YouTube or deviantART) with information on the asserted unauthorized use of their materials.  The service provider must then either take down the material (and notify the poster) or risk a lawsuit. Since service providers don’t want to be sued, they usually comply right away.  While having the material taken down often satisfies the copyright holder, the copyright holder still has the legal right to sue the individual who posted the material.

Even if a copyright owner requests that your work be taken down under the DMCA, you can provide a counter notification requesting that it be put back up if you believe you have the right to post it. In order to qualify, your counter notification must contain four parts:

  • Your physical or electronic signature;

  • Identification of the materials that were removed or disabled, and their location;

  • A statement under penalty of perjury that you have a good faith belief “that the material was removed or disabled as a result of mistake or misidentification”;

  • Your name, address, phone number, and consent to the jurisdiction of the Federal Court for the area where your address is located (or, if the address is outside the United States, consent to the jurisdiction of any judicial district in which the service provider to whom you’re writing can be found), and consent to accept service of process from the copyright owner.

The language of the DMCA, requiring “a statement under penalty of perjury,” and its particular requirement of “mistake or misidentification,” sounds intimidating. However, the Electronic Frontier Foundation (EFF) and other free speech advocates have persuasively argued that a copyright holder is “mistaken” if she or he fails to consider fair use.  For example, in the recent “dancing baby” case involving a Prince song, the court agreed with EFF and explicitly stated that “[a] good faith consideration of whether a particular use is fair is consistent with the purpose of the statute,” meaning that it is a mistake for a copyright owner to issue a takedown notice when there is a strong fair-use claim.

If you have a strong enough fair-use claim or other right to post the material, you may even be able to bring a suit against the copyright holder for misrepresenting that your material was infringing.

However, be aware that filing counter notice ups the ante, as the next step required of the copyright holder, if she or he insists that the work should be taken down, is to go to court to seek a restraining order against posting the material.  The copyright holder might also be more inclined to file an infringement suit once someone has stepped forward to oppose the takedown.

Trademark Infringement

Trademark law may also interfere with sampling and appropriation.  Trademark law has special provisions to protect against “dilution” of the brand.  While parody can be a strong defense against copyright suit, and while a fair-use exception for parody is built into trademark law, case law does not specify how far these protections extend to parody of a trademarked name or logo.  A corporate jingle might receive similar protection in the context of sampling.

Issues Particular to Sampling Music

Sampling is complicated by the existence of two layers of copyright over each song.  One is over the composition itself, and artists often retain these copyrights. Another is over the recording that the studio distributes, and studios or license clearinghouses usually hold these.  To be safe from infringement suits, you would want to obtain a license from both copyright holders before sampling a given recording.  Alternatively, you could re-record the music yourself, in which case you would only need to obtain a license from whomever owned the copyright over the composition.

Artists could also run into trouble with the anti-circumvention provisions of the DMCA.  If a song was protected from certain forms of copying by technical safeguards, you could face additional claims under the DMCA.

Issues Particular to Appropriating Images

The legal questions around appropriating images have less to do with whether a literal copy was made – in two different cases involving the same artist, literal copying of a photograph has been found “fair” while translating a photograph into a sculpture has been found “unfair" – and more to do with the purpose and character of the use.  Casting an image in a different light is more likely to be protected as fair use than simply casting it in a different medium.