But it is. Digital sampling-making new music from pieces of old-has become a common practice, driving such albums as Vanilla Ice’s “To The Extreme” (10 million copies) and Janet Jackson’s “Rhythm Nation” (7.5 million). But sampling had never been tested in court. Until now. “It’s going to have some fierce impact,” said Prince Paul, a rap producer who uses a lot of sampling. Most rap, and much pop, uses samples. Performers routinely seek clearance for samples-1/2r not, depending on the length of sample or disposition of the performer. A cottage industry has sprung up to clear samples, and publishing houses now embrace sampling as a source of revenue. The largest, EMI Music Publishing, has a staff of six just to listen to records for samples the company can collect on. “Especially these old rock geezers,” said Monica Lynch, president of the rap-oriented Tommy Boy label, “they’re all looking for some bucks.” For them, Duffy’s ruling is a boon.
For rappers, though, it is a nightmare. “People who have had one or two words sampled,” said Andy Tavel of the law firm Loeb & Loeb, which represents many rappers, “are now coming out of the woodwork and saying, ‘Look at this case, pay me.’ Now, record companies are going to insist that every single sample be cleared. It’s greatly going to increase the cost. It’s going to put more lawyers in the creative process, which isn’t good.”
According to Russell Smith, who will represent Biz Markie’s label in a liability-and-damages trial scheduled for March 19, Duffy’s decision “hasn’t resolved any of the issues that everybody’s been waiting for,” like fair use, parody, or the use of an indistinct sample. Sampling may have its day in court yet. Or maybe it’s just time for rappers to move on. “I’m doing a session now,” Prince Paul said. “I have a trumpet player, a guitar player, bass. No samples.”
An unnatural ad: Markie rapped for ‘sampling’
