As a music enthusiast who has been listening hip-hop, pop, techno and R&B for years, I have realized that I love songs with samples. Whether I recognize the sample or not, there is something special about songs that contain older recordings. Vocal samples are typically very catchy and add soul to a record. Instrumental samples stand out as riffs in new records.
As a music producer though, I avoid sampling at all cost. I do not want to risk having injunctions filed against any project I work on or receive emails requesting royalties from a song I produce. Bridgeport Music v. Dimension Films set the stage for the feeling. The Court of the Appeals for the 6th Circuit was direct when it said, “Get a license or do not sample.” Even using a few notes of a song without a license could make me liable for copyright infringement.
But just for this class and this blog post, I’ll step outside my comfort box. Here is our case study:
One of the top songs from 2008, was Usher’s “Love in this Club.” The song was very success due in part to its smooth synth backdrop and euro-inspired melody. According to the song’s entry on Wikipedia, the song’s producer, Polow da Don, was inspired to create a beat during his weekend stay in Las Vegas for the MTV Video Music Awards. He said of the song, “If you listen to the beat, the synths and everything has a [Las] Vegas feel to it. Making love in the club, people in [Las] Vegas are kinda wild” (Wikipedia). The song toped the billboard charts and has sold over 2.4 million units according to Nielsen Soundscan.
Take a listen. Play close attention to the instrumental.
Ok, now remember I do not sample from other records. Last night I went into the recording studio and made this:
I think this raises some interesting questions. It turns out that “Love in this Club” is based on pre-made loops found in Apple’s music Jampack software that can be accessed through Logic or Garageband. Would I be liable for copyright infringement to the copyright owner of “Love in this Club” because I took “riffs” of the song? It is likely my version would pass the “de minimis” standard the District Circuit applied and my usage would likely to “rise to the level of a legally cognizable appropriation.”
Yet, I probably would argue that Apple created these loops “royalty-free.” Users do not have to acquire an additional license or pay royalties to Apple when they use the loops. Additionally, users should not be able to win a lawsuit against other users for merely using the same loop since they are not user’s “original” creations. I may be liable for copyright infringement though if my arrangement exactly mimics the arrangement in “Love in this Club.” It would be interesting to see the reaction from the owners of “Love in this Club” if a major artist uses these loops and produces a hit record.
Here is some proof you can find these loops in Garageband. A few other recognizable sounds from pop music, like the drums from Rihanna’s “Umbrella” seem to be part of the same software bundle.