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.
Yale Law Tech 
A rose by any other name… It’s possible that DJs that release successful remixes as promotional pieces (think DJ Earworm, Hood Internet) actually benefit from the brand name of the samples. People recognize and correctly associate sampled tracks, but if you credited “Apple Logic” I don’t think people would be as excited about it. Mashups often aren’t remarkable stand-alone songs, but are impressive because of the self-imposed limitations. Pulling your samples from their original software source might be more permissible, but would also hurt your mashup branding. Hilarious.
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Many DJs produce mashups as free promotional pieces. DJ Earworm’s billboard-top-hits mashups or Hood Internet yearly compilations are free, but are also clearly designed to stand on the brands that these big-name artists have. To my ears, many of these mashups aren’t really better or more amazing than non-sampled music, but I appreciate and am impressed by the self-imposed limitations that DJs or people like Pogo place upon themselves. The art’s beauty stems from the fact they aren’t just pulling loops from Apple Logic (even if that’s what the original artists are doing!).
So, there’s probably not a copyright issue if everyone’s just using Apple loops. However, it ruins attribution and it ruins the spirit of the mashup for me. In the same way that Daft Punk might be diminished when we know they just use other people’s melodies, my love of mashup would be diminished by knowing that pop music really is a plug-and-play affair of studio loops.
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