In the beginning, artists had free range to use whatever samples they felt like. People dipped into the nearly endless library of recorded sounds and created beautiful and complex works of art. Rap music’s roots, after all, go back to Jamaica, where singles in the sixties often had an instrumental track on the b-side and performers rapped over songs, and producers mashed tracks up to make new shit. With the evolution of DJing and the advent of cheap sampling technology, hip-hop artists sculpted soundscapes from music that inspired them.  

Then the recording industry realized that there was some money to be made in it all, and started demanding that fees be paid for using samples. These fees started out around $1,500, and then crept higher and higher until people were paying $7,000 for the “right” to sample a few seconds of sound from another recording. Many hip hop artists ignored these rules and kept sampling freely, prompting record company lawyers to start seeking out songs that had uncleared samples in them.

Chuck D of Public Enemy: “All the rap artists were on the big six record companies, so you might have some lawyers from Sony looking at some lawyers from BMG and some lawyers from BMG saying, ‘Your artist is doing this,’ so it was a tit for tat that usually made money for the lawyers, garnering money for the company. Very little went to the original artist or the publishing company.”

A legal precedent was set when former members of the pop band the Turtles sued De La Soul for using a sample from one of their songs without permission. They won, and ever since it has been much trickier to get away with putting a sample on an album without paying royalties. This affected the sound of hip-hop. The days of creating intricate sound collages without fear were over, for the most part, and many artists began to make beats from one longer sample instead of many smaller ones. This was pragmatic—instead of having to pay for hundreds of samples—which the Beastie Boys did with Paul’s Boutique—artists would only have to pay for one. Look at the songs that Dr. Dre produced in the nineties. Lots of them were based around a single sample, looped endlessly. Soon, this became the formula for commercial rap.
   
An interesting moment in hip-hop history occurred when 2 Live Crew were sued for using a sample from Roy Orbison’s Pretty Woman. The song’s copyright owners, Acuff-Rose, sued 2 Live Crew not only for copyright infringement, but also claimed that their use of the sample “devalued the original.” The case went to the Supreme Court in 1994, and they ruled that any financial gain 2 Live Crew had from their song did not infringe on Acuff-Rose’s rights because the two songs were targeted at different audiences. They also ruled that 2 Live Crew’s use of the sample was protected as a parody of the original under the fair use doctrine, which allows limited use of copyrighted material without requiring permission from the rights holders.

Something influencing the court to rule in favor of 2 Live Crew was an opinion that resulted from a case called Emerson vs. Davies, which seems like a good way to close this piece: “[In] truth, in literature, in science and in art, there are, and can be, few, if any, things, which in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrow, and use much which was well known and used before.”

-M