Part 18 (1/2)

Some readers will find that this song and these videos capture their own political perspectives perfectly. They will love the bitterly ironic and obscene outrage at the government's failure, the double standards of the press, and the disproportionate and callously disregarded impact on the poor and black. Others will find both song and films to be stupid, insulting, and reductionist--an attempt to find racial prejudice in a situation that, at worst, was an example of good old-fas.h.i.+oned governmental incompetence. Still others will find the language just too off-putting to even think about the message. Whatever your feelings about the content, I urge you to set them aside for a moment. For better or worse, Mr. Bush just happened to be president at the moment when the Internet was coming into its own as a method of distributing digitally remixed political commentary, which itself has recently become something that amateurs can do for pennies rather than an expensive activity reserved to professionals. The point is that whatever rules we apply to deal with ”George Bush Doesn't Care About Black People”

will also apply to the next video that alleges corruption in a Democratic administration or that attacks the sacred cows of the left rather than the right. How should we think about this kind of activity, this taking the songs and films and photos of others and remixing them to express political, satirical, parodic, or simply funny points of view?

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SAMPLING 86

Let us begin with the music. Unlike the other songs I have discussed here, with the possible exception of Mr. West's, ”George Bush Doesn't Care About Black People” makes use of digital samples of the work of others. In other words, this is not merely about copying the tune or the lyrics. The reason that Mr. Nickerson and Mr. Randle could make and distribute this song so fast (and so cheaply) is that they took fragments from the recording of ”Gold Digger” and looped them to form the background to their own rap. That was also part of the reason for the positive public reaction. Kanye West (and Ray Charles and Clara Ward) are very talented musicians. West's song was already all over the airwaves. The Legendary K.O. capitalized on that, just as Benjamin Franklin capitalized on the familiarity of the songs he reworded. But where Franklin could only take the tune, The Legendary K.O. could take the actual ones and zeros of the digital sound file.

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As I mentioned earlier, there are two types of copyright protection over music. There is the copyright over the musical composition and, a much more recent phenomenon, the copyright over the actual recording. This song potentially infringes both of them.

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Readers who came of age in the 1980s might remember the music of Public Enemy and N.W.A.--a dense wall of sound on which rap lyrics were overlaid. That wall of sound was in fact made up of samples, sometimes hundreds of tiny samples in a single track.

Rap and hip-hop musicians proceeded under the a.s.sumption that taking a fragment of someone else's recording was as acceptable legally (and aesthetically) as a jazz musician quoting a fragment of another tune during a solo. In both cases, the use of ”quotation” is a defining part of the genre, a harmless or even complimentary homage. Or so they thought.

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In a 1991 case called Grand Upright, that idea was squashed.19 The rap artist Biz Markie had extensively sampled Gilbert O'Sullivan's song ”Alone Again (Naturally)” for his own song ”Alone Again.” The court could have applied the rules described earlier in this chapter, decided whether or not this was a large enough usage to make the second song substantially similar to the original, discussed whether or not it counted as a fair use, whether Markie's use was transformative or parodic, whether it was going to have a negative impact on the market for the original, weighed the issues, and ruled either way. In doing so, there would have been some nice points to discuss about whether or not the breadth of fair use depends in part on the practice in the relevant artistic community, how to understand parodic reference, or the relevant markets for the work. (Biz Markie's lawyers had asked for permission to use the sample, but the Supreme Court has made clear that seeking permission does not weigh against a defense of fair use.) There were also some tricky issues about the breadth of legal rights over recordings--the right was of relatively recent creation and had some interesting limitations. Underlying it all was a more fundamental question: how do we interpret the rules of copyright so as to encourage musical creativity? After all, as this chapter has shown, borrowing and reference are a fundamental part of musical practice. We ought to think twice before concluding they are illegal. Are we to criminalize jazz? Condemn Charles Ives? And if not, what is the carefully crafted line we draw that allows some of those uses but condemns this one?

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Judge Duffy, however, was uninterested in any of these subtleties.

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”Thou shalt not steal” has been an admonition followed since the dawn of civilization. Unfortunately, in the modern world of business this admonition is not always followed. Indeed, the defendants in this action for copyright infringement would have this court believe that stealing is rampant in the music business and, for that reason, their conduct here should be excused. The conduct of the defendants herein, however, violates not only the Seventh Commandment, but also the copyright laws of this country.20 92

If this were a law school exam, it would get a ”D.” (Maybe a C given grade inflation.) Duffy makes all of the errors Jefferson warned us against. Tangible property is the same as intellectual property. Songs are the same as sheep and the same rules can apply to both. Theft is theft. The prior injunctions of the framers and the courts notwithstanding, we do not need to think carefully about the precise boundaries of intellectual property rights or worry that interpreting them too broadly is as bad as making them too narrow. So far as Judge Duffy is concerned, the tablets on Mount Sinai were inscribed with an absolute injunction against digital sampling. (The font must have been small.) But to say all this is merely to scratch the surface of how regrettable a decision it is. In the narrowest and most formalistic legal terms it is also very poor.

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Judge Duffy gives not a single citation to the provisions of the Copyright Act. He ignores issues of de minimis copying, substantial similarity, fair use, and the differences between the right over the recording and that over the composition. In fact, he quotes the Bible more, and more accurately, than he does t.i.tle 17 of the U.S. Code--the Copyright Act. The one mention he makes of actual copyright law is at the end of the opinion, when he refers the case for criminal prosecution! When I first read this case, I seriously wondered for a moment if it were a crude parody of a legal opinion written by someone who had never been to law school.

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Is the result in this case wrong? Personally, I do not think so.

It is possible, even probable, that a conscientious judge who bothered to read the law could go through a careful a.n.a.lysis and find that Markie's use went beyond de minimis copying, that it was neither creative, parodic, nor short enough to count as a fair use. The judge might have presumed a negative effect on the market for Mr. O'Sullivan's song and thus could have ruled that it was a copyright infringement. In doing so, the judge would have to give some guidance to future courts about digital sampling. The most likely guidance would be ”the sample here is so extensive and so unchanged, that this case says little about the wider musical practice of sampling.” Judge Duffy's opinion was poor not because of the result he reached, but because he reached it in an overly broad and judicially inappropriate way that became a guideline for future cultural creation. Worse still, the industry listened to him.

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In excellent books on this issue, Kembrew McLeod and Siva Vaidhyanathan each argue that Grand Upright was a disaster for rap music.21 The industry's practice turned full circle almost overnight. Now every sample, no matter how tiny, had to be ”cleared”--licensed from the owners of the recording. As they tell the story, this ”legal” change caused an aesthetic change.

The number of samples in an average song dropped precipitously.

The engaging complexity of the Public Enemy ”wall of sound” gave way to the simplistic thumping beat and unimaginative synthesizer lines of modern rap. I must admit to sharing McLeod's and Vaidhyanathan's musical prejudices. The causal claim is harder to substantiate, but industry lawyers and musicians both agree that changes in the industry's understanding of the law had a major role in transforming the practice of sampling.

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If we disregard the Jefferson Warning and a.s.sume the recording artist has absolute property rights over his work, then we could ignore the idea that forcing people to pay for stuff they take might have a negative effect on future art and culture. Theft is theft. I might be able to make art much more easily if I did not have to pay for the paint and canvas, but that is not commonly held to excuse shoplifting from art stores. But if we take the Jefferson Warning seriously, then intellectual property's job is to balance the need to provide incentives for production and distribution with the need to leave future creators free to build upon the past. Reasonable minds will differ on where this line is to be drawn, but the process of drawing it is very different from the process Judge Duffy had in mind.

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For fifteen years, critics of the decision waited for an appeals court to fix the law in this area. When the case of Bridgeport Music, Inc. v. Dimension Films came up, they thought they had what they wanted. The band NWA had used a tiny fragment (less than two seconds) consisting of three notes of a guitar solo from the George Clinton song ”Get Off Your a.s.s and Jam.” The fragment was an arpeggiated chord, which simply means that you strike the notes of the chord individually and in sequence. It was, in fact, a pretty standard ”deedly” sound, familiar from many guitar solos. NWA then heavily distorted this fragment and looped it so that it played in the background of one part of the song--so faintly that it is almost impossible to hear and completely impossible to recognize. (With the distortion it sounds like a very faint and distant police siren.) A company called Bridgeport Music owned the sound recording copyright over the Clinton song. They sued. NWA's response was predictable--this was cla.s.sic de minimis copying, which the law did not touch. One did not even have to get to the issue of fair use (though this surely would be one).

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The appeals court did not waste any time attempting to dignify Judge Duffy's decision in Grand Upright.

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Although Grand Upright applied a bright-line test in a sampling case, we have not cited it as precedent for several reasons. First, it is a district court opinion and as such has no binding precedential value. Second, although it appears to have involved claims for both sound recording and musical composition copyright infringement, the trial judge does not distinguish which he is talking about in his ruling, and appears to be addressing primarily the musical composition copyright.

Third, and perhaps most important, there is no a.n.a.lysis set forth to indicate how the judge arrived at his ruling, which has resulted in the case being criticized by commentators.22 100

They did like one thing about the decision, however: its bright- line rule, ”Thou Shalt Not Steal.” (Lawyers use the term ”bright-line rule” to refer to a rule that is very easy to apply to the facts. A 55 mph speed limit is a bright-line rule.) The Bridgeport court rejected the idea that sound recording copyrights and music composition copyrights should be a.n.a.lyzed in the same way. They wanted to set a clear rule defining how much of a sound recording one could use without permission. How much? Nothing. To be precise, the court suggests in a footnote that taking a single note might be acceptable since the copyright protection only covers a ”series.” Anything more, however, is clearly off limits.