Often "samples" consist of one part of a song, such as a break, used in another, for instance the use of the drum introduction from Led Zeppelin's "When the Levee Breaks" in songs by the Beastie Boys, Dr. Dre, Eminem, Mike Oldfield, Rob Dougan, Depeche Mode and Erasure, and the guitar riffs from Foreigner's "Hot Blooded" in Tone-Loc's "Funky Cold Medina". "Samples" in this sense occur often in industrial music, often using spoken words from movies and TV shows, as well as electronic music (which developed out of the musique concrète style, based almost entirely on samples and sample-like parts), hip hop, developed from DJs repeating the breaks from songs (Schloss 2004, p.36), and Contemporary R&B, but are becoming more common in other music as well.
In 2005, music blog Library of Vinyl Experience compiled sample frequency data obtained from the sample database The Sample FAQ. The goal was to determine what year was "The Funkiest Year Ever" by counting the number of times samples from a particular year were used in hip hop songs. The bulk of the samples used in hip hop were from the years 1970-1975, the most being 872 different songs from 1973, making it "The Funkiest Year Ever". Some of 1973s most sampled songs include: The Incredible Bongo Band's "Apache", Barry White's "I'm Gonna Love You Just a Little More, Babe", Kool and the Gang's "Jungle Boogie", and The Honey Drippers' "Impeach the President".
Sampling has been an area of contention from a legal perspective. Early sampling artists simply used portions of other artists' recordings, without permission; once rap and other music incorporating samples began to make significant money, the original artists began to take legal action, claiming copyright infringement. Some sampling artists fought back, claiming their samples were fair use (a legal doctrine in the USA that is not universal). International sampling is governed by agreements such as the Berne Convention for the Protection of Literary and Artistic Works and the WIPO Copyright and Performances and Phonograms Treaties Implementation Act.
Conventional wisdom would hold that the first popular rap single to feature sampling was "Rapper's Delight" by Sugar Hill Gang on their own independent Sugar Hill Label in 1979. However, instead of 'sampling' the existing record "Good Times" by Chic, Sugar Hill employed a house band, called "Positive Force" to record a copy of "Good Times" which was then rapped over. Doug Wimbish and other session musicians were called upon to play live music on many classic Sugar Hill records. Those sounds are not samples but live musicians.
Early examples of this practice include the West Street Mob's - Break Dance (Electric Boogie) (1983) (which used the "Apache" break by the Incredible Bongo Bong Band), Brother D and the Collective Effort's "How We Gonna Make The Black Nation Rise" (1984) (which sampled the beat and bass line from Cheryl Lynn's 1978 hit "Got to be Real") and UTFO's "Roxanne Roxanne" (1984). Bill Holt's Dreamies (1974) is often cited as one of the earliest examples of sampling in popular music. Another early example of sampling was Big Audio Dynamite and their 1985 album This Is Big Audio Dynamite and the single E=MC² which Mick Jones (the band's main creative force, formerly of The Clash) sampled snippets of audio from various films including works by Nicolas Roeg which make up the Roeg homage E=MC². The 1981 album by David Byrne and Brian Eno, My Life in the Bush of Ghosts, used sampling extensively for the songs' vocals.
One of the first major legal cases regarding sampling was with UK dance act M/A/R/R/S "Pump Up the Volume". As the record reached the UK top ten, producers Stock Aitken Waterman obtained an injunction against the record due to the unauthorized use of a sample from their hit single "Roadblock". The dispute was settled out of court, with the injunction being lifted in return for an undertaking that overseas releases would not contain the "Roadblock" sample, and the disc went on to top the UK singles chart. Ironically, the sample in question had been so distorted as to be virtually unrecognizable, and SAW didn't realize their record had been used until they heard co-producer Dave Dorrell mention it in a radio interview.
2 Live Crew, a hip-hop group familiar with controversy, was often in the spotlight for their 'obscene' and sexually explicit lyrics. They sparked many debates about censorship in the music industry. However, it was their 1989 album As Clean as They Wanna Be (a re-tooling of As Nasty As They Wanna Be) that began the prolonged legal debate over sampling. The album contained a track entitled "Pretty Woman," based on the well known Roy Orbison song of the same name. 2 Live Crew's version sampled the guitar, bass, and drums from the original, without permission. While the opening lines are the same, the two songs split ways immediately following.
Roy Orbison's version – "Pretty woman, walking down the street/ Pretty woman, the kind I'd like to meet."In addition to this, while the music is identifiable as the Orbison song, there were changes implemented by the group. The new version contained interposed scraper notes, overlays of solos in different keys, and an altered drum beat.
2 Live Crew's version – "Big hairy woman, all that hair ain't legit,/ Cause you look like Cousin Itt.
The group was sued by the song's copyright owners Acuff-Rose. The company claimed that 2 Live Crew's unauthorized use of the samples devalued the original, and was thus a case of copyright infringement. The group claimed they were protected under the fair use doctrine. The case of Campbell v. Acuff-Rose Music came to the Supreme Court in 1994.
In reviewing the case, the Supreme Court didn't consider previous ruling in which any commercial use (and economic gain) was considered copyright infringement. Instead they re-evaluated the original frame of copyright as set forth in the Constitution. The opinion that resulted from Emerson v. Davies played a major role in the decision.
"[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." Emerson v. Davies,8 F.Cas. 615, 619 (No. 4,436) (CCD Mass. 1845)Perhaps what played a larger role was the result from the Folsom v. Marsh case:
"look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work." Folsom v. Marsh, 9 F.Cas. 342, 348 (No. 4,901) (CCD Mass. 1841)The court ruled that any financial gain 2 Live Crew received from their version did not infringe upon Acuff-Rose because the two songs were targeted at very different audiences. 2 Live Crew's use of copyrighted material was protected under the fair use doctrine, as a parody, even though it was released commercially.
However, the case was appealed to the United States Supreme Court where the decision was reversed with Justice David Souter writing that the lower court was wrong in its determination that parody alone was a sufficient reason to determine copyright infringement.
More dramatically, Biz Markie's album I Need a Haircut was withdrawn in 1992 following a US federal court ruling, that his use of a sample from Gilbert O'Sullivan's "Alone Again (Naturally)" was willful infringement. This case had a powerful effect on the record industry, with record companies becoming very much concerned with the legalities of sampling, and demanding that artists make full declarations of all samples used in their work. On the other hand, the ruling also made it more attractive to artists and record labels to allow others to sample their work, knowing that they would be paid—often handsomely—for their contribution.
A notable case in the early 1990s involved the dispute between the group Negativland and Casey Kasem over the band's use of un-aired vocal snippets from Kasem's radio program America's Top 40 on the Negativland single "U2".
Another notable case involved British dance music act Shut Up And Dance. Shut Up And Dance were a fairly successful Breakbeat Hardcore and rave scene outfit who like their contemporaries had liberally used samples in the creation of their music - without clearance from the individuals concerned. Although frowned upon the British music industry usually turned a blind eye to this mainly underground scene, however with rave at it's commercial peak in the UK, Shut Up And Dance released the single "Raving I'm Raving" a upbeat breakbeat hardcore record which shot to #2 on the UK Singles Chart. in May 1992. At the core of "Raving" were significant samples of Marc Cohn's hit single "Walking in Memphis" with some of the lyrical content changed and sung by Peter Bouncer. Shut Up And Dance hadn't sought clearance from Marc Cohn for the samples they used in "Raving" and Marc Cohn took legal action against Shut Up And Dance for breach of copyright. An out of court settlement was eventually reached between Shut Up And Dance and Cohn which saw "Raving" in its current form banned and the proceeds from the single given to charity. Ironically Shut Up and Dance were later commissioned to produce remixes for Cher's 1995 cover version of "Walking In Memphis" and were allowed by Cohn to use parts from the deleted "Raving I'm Raving" for this remix.
The Shut Up And Dance case had major ramifications on the use of samples in the UK and most artists and record labels now seek clearance for samples they use. However there are still cases which involve UK artists using uncleared samples. In the late 1990s, The Verve was forced to pay 100% of their royalties from their hit "Bitter Sweet Symphony" for the use of an unlicensed sample from an orchestral cover version of The Rolling Stones' hit "The Last Time". The Rolling Stones' catalogue is one of the most litigiously protected in the world of popular music—to some extent the case mirrored the legal difficulties encountered by Carter the Unstoppable Sex Machine when they quoted from the song "Ruby Tuesday" in their song "After the Watershed" some years earlier. In both cases, the issue at stake was not the use of the recording, but the use of the song itself—the section from "The Last Time" used by the Verve was not even part of the original composition, but because it derived from a cover version of it, Mick Jagger and Keith Richards were still entitled to royalties and credit on the derivative work. This illustrates an important legal point: even if a sample is used legally, it may open the artist up to other problems.
Public Enemy recorded a track entitled "Psycho of Greed" (2002) for their album Revolverlution that contained a continuous looping sample from The Beatles' track "Tomorrow Never Knows". However, the clearance fee demanded by Capitol Records and the surviving Beatles was so high that the group decided to pull the track from the album.
Danger Mouse with the release of The Grey Album in 2004, which is a remix of The Beatles' 'White Album' and rapper Jay-Z's The Black Album has been embroiled in a similar situation with the record label EMI issuing cease and desist orders over uncleared Beatles samples.
On March 19, 2006, a judge ordered that sales of The Notorious B.I.G.'s album Ready to Die be halted because the title track sampled a 1992 song by the Ohio Players, "Singing in the Morning", without permission.
There has been a second important US case on music sampling involving the Beastie Boys who sampled the sound recording of a flute track by James Newton in their song "Pass the Mic." The Beastie Boys properly obtained a license to use the sound recording but did not clear the use of the song (the composition on which the recording is based including any music and lyrics). In Newton v. Diamond and Others 349 F.3d 591 (9th Cir. 2003) the US Appeals Court held that the use of the looped sample of a flute did not constitute copyright infringement as the core of the song itself had not been used. It seems that the position in law now is that with use of the sound recording any use without permission will constitute an infringement; however with the composition there must be some substantial use—the 'heart' of the song itself must be at least recognizable. This extends to both the music and the lyrics; a June 2006 case involving Ludacris and Kanye West held that their use of the phrases "like that" and "straight like that" which had been used on an earlier hip-hop track by another artist was not infringing use.
The New Orleans–based company Cash Money Records and former rapper Juvenile were taken to court by local performer DJ Jubilee (signed to Take Fo' Record Label) for using chants from his song titled Back That Ass Up. Both artist had used the same chant in each song, but Juvenile won the case because of the title's name change to Back That Azz Up, which sold 2 million copies. Because of the name change, Jubilee lacked evidence that Juvenile had stolen from him, and Jubilee could not earn Juvenile's income from his song.
Today, most mainstream acts obtain prior authorization to use samples, a process known as "clearing" (gaining permission to use the sample and, usually, paying an up-front fee and/or a cut of the royalties to the original artist). Independent bands, lacking the funds and legal assistance to clear samples, are at a disadvantage - unless they seek the services of a professional sample replay company or producer.
Recently, a movement — started mainly by Lawrence Lessig — of free culture has prompted many audio works to be licensed under a Creative Commons license that allows for legal sampling of the work provided the resulting work(s) are licensed under the same terms.
Once recorded, samples can be edited, played back, or looped (i.e. played back continuously). Types of samples include:
Possibly the earliest equipment used to sample recorded instrument sounds are the Chamberlin, which was developed in the 1940s, and its more well-known cousin, the Mellotron, marketed in England in the 1960s. Both are tape replay keyboards, in which each key pressed triggers a prerecorded tape loop of a single note.
Musicians can reproduce the same samples of break beats like the "Amen" break which was composed, produced and mastered by the Winston Brothers in 1960s. Producers in the early 90's have used the whole 5.66 second sample; but music workstations like the Korg Electribe Series (EM-1, ES-1; EMX-1 and the ESX-1) have used the "Amen" kick, hi hat and snare in their sound wave libraries for free use. Sampler production companies have managed to use these samples for pitch, attack and decay and DSP effects to each drum sound. These features allow producers to manipulate samples to match other parts of the composition.
Most sample sets consist of multiple samples at different pitches. These are combined into keymaps, that associate each sample with a particular pitch or pitch range. Often, these sample maps may have different layers as well, so that different velocities can trigger a different sample.
Samples used in musical instruments sometimes have a looped component. An instrument with indefinite sustain, such as a pipe organ, does not need to be represented by a very long sample because the sustained portion of the timbre is looped. The sampler (or other sample playback instrument) plays the attack and decay portion of the sample followed by the looped sustain portion for as long as the note is held, then plays the release portion of the sample.
A common standard format for generating such sample sets is the soundfont protocol.
These types of clearance companies can be a very cost effective way to properly clear samples. This is due to the fact that it costs much more to hire an entertainment attorney to perform the same service. Remember that sample clearance is a very important part of making an album containing samples a legally viable product. "Without proper clearance, the owners of the original work you sampled can sue for large sums of money or prevent distribution of your album. It is important to recognize that "one sample may consist of 2 clearances (ie one master clearance & one publishing clearance). Often, sample clearance services are run by people with extensive experience in the music publishing industry or business affairs departments at record labels. Their prior experiences allows them to efficiently navigate the system and obtain proper sample licenses. However, an entertainment attorney can be helpful in tackling deeper issues that the creator of the "new work" may have never anticipated.