Gospel, Gold Diggers, and Gum Trees: How Sampling Litigation Changes the Tune
November 5, 2009 by Ren BucholzRen Bucholz is a JD candidate at Osgoode Hall and is taking the Intellectual Property Theory course.
Copyright holders, like musicians, have a knack for riffing on ideas from the past. Consider the many variations of the copyright infringement lawsuit. Every year brings more examples of a rights-holder who hears some element of their song, no matter how brief, followed by the sound of an opening cash register. Surely some lawsuits are aimed at scofflaws who just don’t want to pay for the soundtrack to their infomercial. Thankfully, copyright law provides no shelter to those who use an entire song, unchanged, to sell Slankets.
But some variations on the infringement suit are more speculative, both legally and ethically. While the experiments of musicians are at the heart of musical evolution, the creative endeavours of copyright litigants may actually silence creativity. In Jamie Boyle’s new book, “The Public Domain,” he devotes one chapter to how an infringement suit could have changed a genre, a hit, and a protest that were built by borrowing. According to Boyle, Ray Charles’ 1954 song “I Got a Woman” was both a milestone in the birth of soul music and a clear infringement of a contemporaneous gospel tune. No surprise there: “I Got a Woman” and other early soul songs took their melody, structure, and even some lyrics from spirituals. Yet gospel artists who disliked this practice typically appealed to the borrower’s sense of piety, not their fear of legal liability. Had gospel artists instead decided to sue their pop progeny, soul music’s development would have been very different.
Kanye West engaged in a similar act of borrowing 50 years later. His 2005 hit, “Gold Digger,” is based on overt samples and reworked elements from “I Got a Woman.” West didn’t have to worry about the legal consequences of his homage, however, because he paid for a license to use Charles’ material. Without a license, West’s hit would likely have sparked a lawsuit. Times had changed since Ray Charles started adapting gospel tracks, and licensing musical samples had grown into big business.
A lack of money (and perhaps time and inclination) led yet another borrower to eschew a license for Charles’ and West’s work. Just weeks after it was released, the Legendary K.O. retooled “Gold Digger” and its embedded musical precedents without permission. But they were not selling Slankets. They were responding to the plight of New Orleans residents in the wake of Hurricane Katrina. After seeing Kanye West’s live, unscripted declaration that “George Bush doesn’t care about black people,” the Legendary K.O. recorded a song by the same name. Their lyrics were angry, political, and profane, and they struck a chord in an American public appalled by their government’s response to disaster. Millions of people listened to the song online and watched fan-made videos cobbled together out of (unlicensed) news footage. Boyle asserts that fears litigation kept the song off of main stream media, where it could have reached even more people. Actual lawsuits forced the authors of the videos to modify their work. Ironically, this third use is the one that was most impacted by the spectre of an infringement suit.
Boyle’s secret history suggests inflection points where acts of cultural production were permitted, controlled, and frustrated by the perceived likelihood of an infringement suit. Defensive approaches to using copyrighted work–i.e. license every use or leave it out, regardless of the fairness of that use–are a consequence of aggressive infringement lawsuits. The frequency and character of these suits will, therefore, have an impact on how music develops.
A recent Australian lawsuit demonstrates just how speculative these claims have become. The group Men at Work are best known for their 1983 pop hit “Down Under,” with its buoyant melody and lyrics about Vegemite sammies. It’s an Australian anthem, appearing everywhere from the closing ceremonies of the 2000 Olympics in Sydney to Qantas Airlines’ new television commercials. But in 2007, the rights-holder of the 1934 children’s song “Kookaburra Sits in the Old Gum Tree” became convinced that it had been infringed by “Down Under.” He claims that the latter song’s flute part reproduces two of “Kookaburra’s” four bars of music, despite the fact that the key, harmony, structure, and rhythm are different.
If this kind of glancing reference to copyrighted work is enough to incur liability, what will happen to music? Professor Jill McKeough, dean of law at the University of Technology, Sydney and an expert in intellectual property says, “It does create uncertainty about how people can reference other songs … It means you can never have a thought or write a song without looking over your shoulder. Musicians would have to start retro-fitting their songs with some kind of analysis.”
Another Australian musician, Martin Armiger, asked, “What purpose is served by insisting on the rights of a dead composer against quotation, one who in her lifetime wasn’t at all protective of her copyrights, who gave her intellectual assets away for no charge and showed no inclination to profit materially from her inventions?”
It’s easy to see why musicians would be leery of this practice. In some countries, copyright lasts for over a hundred years. Is every musician supposed to listen to a century of music, searching for similarities–however tenuous–before they release a song? Music lovers should agree that this riff on the infringement lawsuit doesn’t sound good.
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Tamsin Thomas is a JD candidate at Osgoode Hall and is taking the Intellectual Property Theory course.
In a nutshell, Ren’s post focuses on the potential chilling effect that copyright infringement litigation (legitimate or otherwise) has on the development of music. I am not a romantic individual and I tend to be a bit cynical. Our society is driven by money and I have difficulty imagining that will ever change. For better or for worse, we have created an intellectual property regime which emphasizes monetary incentives. This is true for whatever industry you can think of-so why should the world of intellectual property be any different? Aren’t we all just trying to provide for our families? Of course, there are other motivations to create such as the desire to contribute to the development of culture. Some are also likely driven simply by the desire to see their name in lights. Unfortunately, one cannot buy food with ego and self-satisfaction. Unless we decide that all forms of culture should be free and that we should get “day jobs” to pay for the necessities of life, we need to accept that speculative infringement claims will occur.
I also don’t see anything inherently wrong with altering the development of music. Yes, history might have been different but when it comes to sampling, especially with the motive of commercial gain, the original creator should receive compensation and I don’t think fair dealing or fair use should apply in such cases. I will, however, admit that cases such as the Australian “Down Under” case are troubling. In the online article cited by Ren, Larrikin Music Publishing claims that “[Men at Work’s song] was a clear exploitation – conscious or otherwise – of two out of four bars[.]” I have not read the case but it is clear from that statement that the doctrine of subconscious copying likely came up in argument. While I might be somewhat cynical with my views above about society and the desire (and need) for monetary rewards, the doctrine of subconscious copying seems more problematic than fair dealing/use provisions that do not do enough to protect the development of music.
As I recall from my limited copyright experience, to prove subconscious copying, the claimant must establish that a substantial portion of her work was taken, that the second work was substantially similar to the claimant’s work and that the alleged copier had access to the work. Importantly, there is no requirement of intention and of course how can someone form a subconscious intent to copy? One problem I have with subconscious copying is that it seems rather difficult to defend, especially in a world where many, many works are available on the internet. In an article of Cardozo Law Review, Carissa Alden argues that modern technologies make access easier to prove than ever and that the number of subconscious copying claims will increase (http://www.cardozolawreview.com/content/29-4/29.4_alden.pdf). I also wonder about the applicability of fair dealing/use in the context of a finding of subconscious copying. Can you deal fairly with something you have subconsciously copied? Can and should a finding of subconscious copying impact the fair dealing analysis or the amount of damages?
Admittedly, as Carissa Alden documents, cases of subconscious copying are not common and is perhaps less important than amending fair dealing provisions. I do know we are bombarded with information on a daily basis. This is true more today than it was when the doctrine was developed. We check our email, our social networking sites, the news, and then perhaps listen to music while writing an essay while watching TV. This information is not organized as a filing cabinet. We are not likely to remember the source of information which led to the resulting thoughts, ideas and melodies that circle around in our heads that might eventually make it onto paper, airwaves or a computer chip. Does it really matter that part of the resulting work was subconsciously copied from a previous work? Perhaps it is naïve, given my gravely limited knowledge in this area, but this seems to be one doctrine we could do without if we are truly interested in protecting the balance between rewarding creators and maximizing the production of cultural works.