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“You Can’t Sing Without the Bling”: The Toll of Excessive Sample License Fees on Creativity in Hip-Hop Music and the Need for a Compulsory Sound Recording Sample License System  

Norek, Josh, 11 UCLA Ent. L. Rev. 83 (2004)

The current system for clearing samples is time-consuming, as there are presently two licenses that must be obtained: the sound recording and the musical composition. Normally, when an artist covers a song, he obtains a compulsory license, under which he must pay eight cents (or 1.55cents/minute) to the original work’s publisher for every track sold. The general practice in the music industry is that, if a sample is recognizable to the ordinary listener, it must be cleared, regardless of whether it is a de minimis use. For a single use de minimis musical composition sample, a major label-sampling act can expect to turn over 15% of the new work’s musical composition copyright to the sample work’s author. When the sample portion is looped and constitutes a more important part of the new work, that percentage often leaps to 66%. Under the proposed compulsory license system, both qualitatively insignificant samples and single-use qualitatively significant samples that are under three seconds would require no license fees for either the sound recording or the musical composition. Qualitatively significant samples of three seconds or less that are looped would requires a payment of two cents per track to the sampled work’s sound recording copyright holder. Qualitatively significant uses greater than three seconds would continue to require negotiation and clearance of both the sound recording and the musical composition, as per current music industry practice.

The proposed compulsory license would cover only looped, qualitatively significant samples that are less than three seconds in length. Uses of a pre-existing work that exceeded three seconds would continue to be negotiated in accordance with the current practices of the music industry. Authors who felt that a sampler had gone beyond the parameters of the system’s permitted appropriations would be free to take the sampler to court.

The proposed system will greatly expedite the time spent clearing samples, as it will no longer be necessary to obtain a separate clearance for the musical composition, as long as the taken is de minimis or qualitatively insignificant. The door for such a system has already been opened by Newton v. Diamond, in which the defendant licensed the sound recording, but the court held that he did not have to license the musical composition from the plaintiff since the portion sampled was de minimis.

In considering the implementation of a compulsory license system for samples, it is important to weigh the public’s benefit of having creative works against the right of the original copyright holder. Because the system would apply only to samples that appropriate a qualitatively significant portion of three seconds or less of the sound recording, copyright holders stand to lose very little. Today’s sample clearance process is obsolete and incompatible with the prominent role of pastiches and hip-hop contemporary culture. Preventing good songs from being released is contrary to the Constitution’s stated intent. A compulsory sound recording license system will speed up the creative process while still protecting the interests of copyright holders.

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