Contextsconsideration that might be helpful for artists to understand in which environment and
field of pressures they are operating.
Public domaini claim that any artistic creation or performance belongs to the public domain. it is
derived from the commons, based on the works of predecessors and contemporaries
and, therefore, from its moment of conception it takes its place in the public domain.
let us consider an example that clearly shows how damaging copyright can be for
the freedom of expression. in the early 1990s copyright scholar siva Vaidyanathan
noticed that rap music was changing: the underlying body of samples was thinning out,
becoming more predictable, more obvious and less playful.
i had heard that there had been some copyright conflicts in 1990 and 1991. so
i suspected that lawsuits had chilled playful and transgressive sampling. i was
right. The courts had stolen the soul. and rap music is poorer for it.
(story and halbert 2006: 19)siva Vaidyanathan’s observation was based on a 1991 court decision in the united
states that ruled against rapper Biz markie’s appropriation of a gilbert and sullivan
song in the case grand upright v. Warner. This decision changed practice dramatically.
at first, the Bridgeport music inc. v. dimension Films ruling stipulated that samples
which rise ‘to a level of legally cognizable appropriation’ must be licensed, but that de
minimis sampling was still considered fair use. however, this decision was reversed in
the appeal to this case, where the court ruled that even the three- note sample was
unfair use and that musicians should ‘get a license or do not sample’. The consequence
is that musicians now have to clear the rights with the owner of the sound recording
and the publisher and negotiate a licence fee before using the sample. Rapper Chuck
d argues that narrowing the infringement exception means that the ‘whole collage
element is out of the window’. To make things even worse, ‘for music, clearance is
required for the performance and for the composition ...’ (gowers 2006: 67).
The 2006 British Gowers Report on intellectual property rights reminds us that hip-
hop
is not the first genre to ‘sample’ music: composers from Beethoven to mozart
to Bartok to Charles ives have regularly recycled themes, motifs, and segments
of prior works. under the current copyright regime, these creators would need
to clear permission and negotiate licenses to avoid infringement suites. The
barriers that new musicians have to overcome are extremely high, and the
homogenization of hip hop music is, critics argue, a direct response to the costs
of clearance rights.
(gowers 2006: 67)We should be clear that the fact that one should have the right to make from the
work of another artist something that is different, is the same right that another artist
has on your own work. For many artists this may mean a complete break in how they