How Litigation Changed Hip Hop Sampling

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By Casey C. Sullivan, Esq. on July 28, 2015 1:58 PM

If you were flipping through Seattle radio stations last Friday, you may have happened upon KEXP's deconstruction of the Beastie Boys' album Paul's Boutique. To celebrate the 26th anniversary of that album's release, the independent radio station played every track of Paul's Boutique, along with every track that was sampled on the album. It took them 12 hours.

Paul's Boutique, like many hip hop albums at the time, was packed with samples, references, and riffs off other artists' work. Within three years of its release, that style of music would have largely disappeared, a victim of litigation as much as changing tastes.

Sampling's "Golden Age"

Borrowing and reworking other music has been central to hip hop from its inception, with early rappers freestyling over disco. As hip hop became more popular, the sample-heavy style of music began to boom. Between 1987 and 1992, hip hop artists released dozens of classic albums that were full of creative use of other music, while also flying under the radar of most rights holders and corporate legal departments.

This was the "Golden Age" of sampling, allowing artists to "run wild with this new technology and make music in whatever way they wanted without worrying about a lawyer looking over their shoulder," according to Kembrew McLeod, co-author of "Creative License: The Law and Culture of Digital Sampling." That age didn't last for long, of course.

Bring in the Lawyers

Artists, record companies, and rights holders began to catch on to the often-unlicensed use of their work in hip hop music. (In fact, one of the earliest hip hop hits, Rapper's Delight, faced informal threats of litigation over sampling.) By the nineties, many parties were taking legal action over unlicensed samples.

One of the highest profile cases pitted soft-rocker Gilbert O'Sullivan against rapper Biz Markie. O'Sullivan won and artists began to move away from permissive sampling. One might expect samplers to argue fair use. After all, sampling seems like just the type of transformative quotation that fair use is designed for. That issue has never been successfully litigated, however, according to McLeod.

As a result, making sample-heavy music has become much more difficult -- and expensive. Artists are required to license each sampled track with both the owner of the recording and the song's publisher. 

Ironically, Paul's Boutique is the exception that proves the rule. The Dust Brothers, producers and creators of Paul's Boutique, actually did get licenses for each of the 105 songs sampled on that album. At the time, it cost them around $250,000. Even with that, they still got sued. Today, McLeod estimates that those samples would cost over $20 million, for an album that went on to sell just over 2 million copies.

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