OK, so copyrights and sampling in 15 minutes flat. No problem, right?
Thank you Ableton for letting me be here and speak about a topic that's really near and dear to my heart.
I'm Abid Hussain. It sounds like a foreign language back there, I can't actually hear.
So I guess, thank you for the introduction. But I'm an attorney,
I've been a practicing attorney, a corporate lawyer for about 13 years.
And I work with early-stage tech and start-up companies.
And as a result of my practice, I work with a lot of copyright, trademark related issues.
I've also been a certified trainer for 7 years.
And I teach a lot of students where I have to answer copyright and sampling questions.
And oftentimes I have to disappoint them, and I might be disappointing a lot of you with my answers
because I have to speak as a lawyer and I have to speak as an artist.
I've also been an alt-rock and EDM producer for 25 years, I know you're thinking that means I must've started
at the age of 4, I did. Just kidding, let's move on here.
So, I've been an audio nerd for a long time and as a result of my intersection between music and law
I've actually been an expert in some copyright cases, so I'm gonna take through some of those issues.
So what are we gonna do today? Well, I have tension. I have tension as an artist and as a lawyer.
And I wanna speak through some of those issues, but I'm also gonna talk about what's going on
with federal courts in the United States. And I'm only gonna speak about copyright law in the US
because I'd imagine the issues are similar in Europe or across the world, but right now, in the US
we have tension in the courts as well.
I'm gonna demo a piece of music that is both blatant infringement, as well as possibly protected.
And I hope that you will walk away both informed and confused, because that's where we are right now
with the state of copyright law.
So let's jump right into it. I'm gonna keep things pretty high-level so if there's another lawyer in the room
or if somebody knows more about this than I do, that's totally cool, we can talk about it afterwards.
But for the sake of time, because this could easily be a 5-hour lecture, we'll keep things pretty high-level.
So let's talk through the baseline. 2005, Sixth Circuit case, Bridgeport versus Dimension Films that says:
Sampling is never allowed, OK. So at that point the law of the land was, and still is,
that if you sample somebody else's work and you take it and put it into your own work
it is not allowed, OK? So...
you know, we get common questions like: Is it OK to sample one bar? No it's not. Is it OK to sample...
8 seconds or less? No it's not. I don't know where all those things came from.
The law of the land is that sampling is never allowed. If you do sample and somebody sues you
and it's not authorized sampling, then what could happen is that there'd be a federal lawsuit,
they would be a Discovery Request, they could then seize your hard drive, they could then do forensic...
analysis on your files and probably find infringement, and then hit you with a large fine or large judgment.
So this what I have to do to scare people into saying "don't sample!" right?
Because that's me being a lawyer. Case closed, right? Well, not exactly.
What happens when you don't exactly sample but you copy something, or copy something a little bit or...
you pay homage to something, or you're taking a style? Well, that's a pretty murky place right now, right?
Because the standard is called Substantial Similarity,
is a side-by-side comparison between the original and the copy,
and it is placed at the hands of ordinary people. So what happens is that a court will get a lawsuit,
and they will assemble a jury of ordinary people, and then ordinary people will sit around and look at the two
pieces of work, or music, in this case, and they're gonna judge whether there is Substantial Similarity.
Now I'm being overly simplifying for the sake of time, but there are plenty of other tests that go into it
for example there's a pattern test, this is typically where experts come in
and they discuss and argue their case. The case that I was hired on as an expert
I was actually representing the plaintiff, who was suing a very well-known hip-hop artist.
And my job was to take the pieces of music that my client thought was infringing, put it into Live,
extract the midi out of the song, and then create a pattern, and make the argument that it was an infringement.
So what are the factors that ordinary people will look at and the court will direct a jury to do?
Things like: the hook, the phrasing, the rhythm, pitch, a shift in cadence, a verse/chorus analysis, the ending,
those are all factors that go into whether something is substantially similar.
So, we all know where this is going right, because the law of the land is the Blurred Lines case, right.
And it's pretty funny that the Blurred Lines case blurred the lines even more.
Because as a result of Substantial Similarity Robin Thicke and Pharrell
both got hit with a $7.4 million judgment against them.
Now, I personally think this has a pretty chilling effect on music as a whole. If you listen to the song
and what it apparently infringed, it creates a precedent which actually lowers the barrier.
And I think that's a very difficult place for us as musicians and artists.
So is there hope? Well there is, because in 2013 the second circuit, that's the same year
that the Blurred Lines judgment came out, in 2013 the second circuit heard this case called:
Cariou versus Prince. And this decision actually expanded "Fair Use."
So, "Fair Use," for those of you that don't know is a concept under derivative works
where certain things are allowed to be copied. So things like:
criticism, comment, news reporting, teaching, scholarship, research, those kinds of things
are it's OK to copy them for those purposes and you're not infringing on copyright laws.
So what they did was in that case they looked at... the defendant was taking the plaintiff's photographs,
the plaintiff had photographed Rastafarians, and the defendant took those photographs
and created collages and other artwork. And when the plaintiff sued, the second circuit said that the
derivative work was so transformed that it was completely different from the original work.
So what are the standards they used? They looked at presentation, composition, scale, color palette,
was the media fundamentally different and new? And if they had created a fundamentally different aesthetic,
and here's the kicker: the artwork did not usurp the market of the original, then it's fundamentally transformed.
OK, so, let's recap real quick, high-level. 1) Don't ever do it. That's 2005.
Then in 2013, right, if you're substantially similar, meaning it has the feel,
and you have a terrible client like Robin Thicke who gets on stand and says:
"Yeah, we were listening to Marvin Gaye's music and we thought we'd write that."
OK, right so... if you have that situation and it's substantially similar...
then you're in trouble, you gotta get it cleared. Or if you fundamentally change something completely,
create something totally new and original that doesn't usurp the old market, right,
then it's considered transformed and protected.
Everybody confused? OK, so, let me play you a couple of pieces, OK?
So, I'm gonna play you this pieces, it's a pretty short song. And I can guarantee you that it is an infringement because
every sound in this song came from a very well-known song.
If you guys figure out what it is, shout out. Let me see if you actually recognize it.
Anybody figure it out?
Any guesses? Madonna? OK, interesting. Alright.
OK, let's go through it. I'm gonna kinda break it down for you, and let's see if we can figure it out.
So I'm gonna start with Robert Henke's awesome Granulator, because of course you can tell what a sample is
when it's been brained, right? No, you can't tell what it is. So that's the easy one for me.
How about if I go into this pulse sound.
This is gonna be pretty evident I think.
Any ideas?
Alright, let me see if I can expand out the sample a bit.
Come on, everybody knows what this is, right? Come on. No?
Alright, let me go to the bass sound, because that's the first note in the song.
Right, no? Turn the filter off. Right, come on. No?
Is everybody getting it? OK, so... let me actually go ahead and play it for you. Oops, sorry, I will turn the filter back on.
And... I will play the song for you. Maybe you'll get it.
And I'll even go to the spot where I took a lot of the samples from. Obviously the bass was from that first note.
OK, again.
So I took that "Ooh" part, and I turned it into this.
Kick was from that song, the snare was from that song, the hats, the "oohs," the bassline, all of it...
came from this one song. So, has there been a transformation?
I argue absolutely there's transformation. Did anybody recognize it? We're all music nerds in here,
we all think we have a pretty good idea about music, we have good ears. So, if you didn't recognize it...
I think it's pretty well transformed, right? But where does that leave us?
I'm not quite sure, so let me play you one more song.
This one might be a little bit easier.
OK, guesses? Anyone?
What's that?
OK. - - A track from Trainspotting?
No it is not. I will play it for you in 2 seconds. Here's the snare, that'll tell it.
So, from that...
to... let's go right to the part.
So, where does that leave us? Well, it leaves us 3 choices right?
So the first choice is what I tell everybody: Abstain! Don't do it, don't sample ever, right?
OK, that's ridiculous, right? Cos we're all artists here and none of us are abstaining,
we're all practicing unsafe sampling right, nobody's abstaining in this room.
So we are in a, as Mark Ronson put it, a "post-sampling world," we're all gonna do it.
So what does that do? That leaves us 2 not-so-great choices.
On one hand we've got a 2013 case that says that you've gotta clear the sample, you gotta get it licensed
because if you're substantially similar, you're gonna get sued and there's gonna be a massive judgment against you
And that bar for Substantial Similarity, as of that Blurred Lines case, is lower, it's easier to get there.
So that's problematic for us as artists, right. And on the other hand, you transform it. Now...
let's talk about that for 2 seconds, I'm not a... I don't do hip-hop music, I don't sample on a regular basis
for the purpose of sampling, but as I understand the art form to be,
sampling is kind of a homage to whatever you're taking from, you kind of wanna have a nod to it,
you kinda wanna be able to recognize it, right. So there's tension there. If I transform it to the point I just did
what's the point of sampling at all? Cos it doesn't sound anything like it. So...
you know, I'm gonna kind of end this with the same tension. I feel there's tension between...
two courts in the United States, with the laws of the land also kind of tense, you can sort of do it, but you can't.
There's tension I have as an artist, because I wanna be able to take samples from YouTube and simply
put it into a piece of music and put that out there without any repercussions, right?
And I can tell you that, you know, there's no way the 2 songs that I played you usurps the market for
anybody, certainly not Pharrell, certainly not Beyonce. No one's gonna listen to these and go:
Oh, I wanna get those instead of the original. But the point is it leaves me in a place of this tension.
And that's kinda where I have to leave all of you because that's the law of the land at this point.
So, thank you for that, I appreciate it.