A few seconds on a hit record can add up to a few years in a courtroom. Just ask TuffAmerica, a New York label that on Feb. 7 sued Universal Music Group over a sample used on Frank Ocean’s “Super Rich Kids.”
After more than three decades of litigation, music lawyers know that even the smallest lift of a previously released song typically requires licenses from the owner. They also know that artists often press their luck without a license, hoping the sample is minuscule enough to qualify as “fair use.”
TuffAmerica found itself in a situation that illustrates the difficulty of applying copyright law to sampling. It owns rights to one song (The Honeydrippers’ “Impeach the President”) that wound up on another (Audio Two’s “Top Billin’ ”) that was sampled by a third (Mary J. Blige’s “Real Love”) that was allegedly included in a fourth, “Super Rich Kids.” After a series of past agreements -- likely stemming from prior legal disputes -- TuffAmerica now claims to own 3.15% of the Blige song, which it says is enough to claim infringement by Ocean’s label.
TuffAmerica’s library includes albums made purely of breakbeats. It has brought so many lawsuits -- flagging the likes of LL Cool J, the Beastie Boys and Jay Z -- it has been called a “sample troll.” But its lawyer Kelly Talcott says a proactive stance can be a result of fans scrutinizing music more closely than ever. “Some have a real interest in figuring out where samples came from,” says Talcott. “They will reach out to an artist and say, ‘Hey, your song was sampled in this new album.’ That happens a lot.”
Indeed, websites like WhoSampled.com exist purely to sniff out the source of new releases. And samples are now easier to confirm thanks to fingerprinting technology. “Sometimes, there might be distortion of the original or a ramping up of the pitch,” says Talcott. “Technology allows us to re-create it -- to show the jury, ‘Yes, the pitch might be up a few tones, but it’s still there.’”
This raises an issue that has flummoxed some courts: If a piece of music is distorted, might that be transformative and thus a fair use? Without Supreme Court guidance, judges have come to different conclusions, and the confusion has prompted most lawsuits to settle.
The same week the Ocean suit was filed, a congressional committee heard testimony about a proposed compulsory license system that would make sampling rather permissive and would harmonize fees, which now range from a few hundred to several hundred thousand dollars, depending on the sampled recording and the use. But in a joint letter, artists including Don Henley, Dr. Dre, Sting, Deadmau5 and Britney Spears argued against change. “For those of us who would prefer to keep their music in its original form, or who would rather that certain individuals not remix or sample their tracks, no dollar amount can change our minds,” they wrote.
Though artists like Spears are free to refuse a requested sample, copyright law also provides that in situations of song co-ownership, each owner is allowed to license without the other’s permission. The only condition is that co-owners must share the money. So if the other owners of Blige’s song authorized the Ocean sample, TuffAmerica might have to settle for a royalty share. How much? The 3.15% could become an even lesser fraction of “Super Rich Kids,” but that’s a matter of sampling math where every second counts.