By Brett Manchel
Trivia question: what do Cardi B and Barbra Streisand have in common? Besides both being successful women in the music industry in their own right, you might think not much. But how’s this for a history lesson:
Start with the song The Way We Were (from the 1973 movie of the same name), written by EGOT-winner Marvin Hamlisch and succesful songwriting pair Alan and Marilyn Bergman. The song was famously performed by Streisand and incredibly successful.
Fast forward about 20 years, to 1994, when the Wu-Tang Clan released their last single from their album Enter the Wu-Tang (36 Chambers): Can It Be All So Simple. You might recognize that lyric and snippet from Babs’ song. Yes – Wu-Tang sampled a Barbra Streisand song. That’s amazing.
Jump another 5 years to 1998 and take a listen to track 3 from Lauryn Hill’s widely-acclaimed album The Miseducation of Lauryn Hill, called Ex-Factor. That song samples Can It All Be So Simple, the part which samples The Way We Were.
And now, return to the present, 2018, and stream Be Careful, the third single from Cardi B’s debut album. It may not be obvious, but if you listen to these songs in order you can hear how the sample is used and how it has progressed. If you look at the songwriters listed on Be Careful, you’ll see the Bergman’s, Hamlisch, all of Wu-Tang Clan, and Hill are credited as songwriters. How’s that for some music history?
The life of TWWW show music transcending eras and genres, and also provides a great example of how hip-hop and rap music developed and evolved around (legal) sampling. But not everything is that easy. There’s a whole Wikipedia page for “Legal issues surrounding sampling.” So what does this mean for today’s aspiring artist or producer who may be incorporating samples into new songs? Here are some basics:
- Legally, what are we talking about? We’re talking about copyright infringement. For a song, we’re talking about taking (sampling) a portion of someone else’s song and using it in yours.
- Do you have to literally copy a part of a song or can you re-create it? It doesn’t matter whether you lift the sample directly from the source or replicate it on your own, you still have to worry about copyright infringement.
- How much of another’s work can you use? This question deserves a lawyer’s favorite answer: it depends. Practically speaking, a snare drum hit on its own is not going to be copyrightable, but a guitar lick that’s central to the musical composition, or feel of the song, might be copyrightable on its own and subject to protection. In a precedent-setting case, one federal court held that three notes were subject to copyright protection and went so far as to say, “get a license or do not sample.” In another case, though, a different court held that the Beastie Boys’ use of three notes of the song “Choir” by James W. Netwon in their song, “Pass the Mic,” was not infringement.
- What if you can’t tell what song I’m sampling? The degree of recognizability of the sample is important, but it doesn’t need to be obvious to be infringing. Look at the recent case of the song Blurred Lines, which was found to infringe on Marvin Gaye’s Got To Give It Up, even though the songs were in different keys, among other differences (there were similarities, as well).
- What’s fair use? Fair use is a defense to a claim of copyright infringement. It is a powerful defense and usually determined on a case-by-case basis. The argument is that the use is legal because it is for an allowed purpose, such as to comment upon, criticize, or parody a copyrighted work, or that the use is “transformative,” which is legalese for a use that is “completely new or unexpected.” Before getting to deep, if you’re talking about fair use, you’ve already waded into murky legal waters, and most labels and distributors don’t like that because it presents serious risks. A legal dispute involving fair use gets expensive and time consuming, and there’s always the chance that you lose (and set a bad precedent for other creators). That’s not worth it to the labels, so they would rather just pay the money to license the samples or replace them with original work.
- At the end of the day, if you’re using a sample, or your song sounds a lot like someone else’s, what should you do? Samples involve the copyright to both the composition and the sound recording, so you would need a license from both the song’s publisher (who controls the rights to the composition) and the record label (which controls the rights to the sound recording). It is helpful to discuss use of samples with a lawyer who can help find rights holders, negotiate licenses, and evaluate any legal issues with your use of a sample.