How Copyright Works: Courts and the Circuit Split Regarding Sampling without a License

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In this video, Berklee Online instructor E. Michael Harrington discusses the music of George Clinton, specifically his song “Get Off Your Ass and Jam.” He argues that if there is a part of a song that sounds as if it was copyrighted from another song, it is not copyright infringement if one cannot recognize the similarities between the two songs. The song has been sampled by artists like Public Enemy, Tone Lōc, A Tribe Called Quest, and Tupac Shakur, but it was most notably sampled by N.W.A. in the song “100 Miles and Runnin’,” which led to a lawsuit. The law then became, as ruled by the Supreme Court, that if an artist wants to sample part of another person’s work, they must obtain a license. In contrast, Madonna sampled a horn hit from Salsoul Orchestra’s song “Love Break,” in her song “Vogue,” without asking permission, and was sued. The court in this case ruled the horn hit was not original, therefore, Madonna’s use of it was justified in the eyes of the law. The fact that certain court circuits have different views regarding the need for a license when sampling is referred to as the “circuit split.” And whether or not you can use a sample without permission depends on what state you record the song in, and how the courts view it there.
About E. Michael Harrington:
Dr. E. Michael Harrington is a professor in music copyright and intellectual property matters. He has lectured at many law schools, organizations, and music conferences throughout North America, including Harvard Law, George Washington University Law, Hollywood Bar Association, Texas Bar, Minnesota Bar, Houston Law Center, Brooklyn Law, BC Law, Loyola Law, NYU, McGill, Eastman, Emory, the Experience Music Project, Future of Music Coalition, Pop Montreal, and others. He has worked as a consultant and expert witness in hundreds of music copyright matters including efforts to return "We Shall Overcome" and "This Land Is Your Land" to the public domain, and has worked with director Steven Spielberg, producer Mark Burnett, the Dixie Chicks, Steve Perry, Busta Rhymes, Samsung, Keith Urban, HBO, T-Pain, T. I., Snoop Dogg, Collin Raye, Tupac Shakur, Lady Gaga, George Clinton, Mariah Carey, and others. He sits on the editorial board of the Journal of Popular Culture, advisory board of the Future of Music Coalition and the Creators Freedom Project, and is a member of Leadership Music. Michael has been interviewed by the New York Times, CNN, Bloomberg Law, Wall Street Journal, Time, Huffington Post, Billboard, USA Today, Rolling Stone, Money Magazine, Investor's Business Daily, People Magazine, Life Magazine, and Washington Post, in addition to BRAVO, PBS, ABC News, NBC's "Today Show," the Biography Channel, NPR, CBC and others. He teaches Music Business Capstone and Music Licensing courses at Berklee Online, and is the course author and instructor for Music Business Law, part of the curriculum for Berklee Online’s Master of Art in Music Business degree.
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Copyright Law | E. Michael Harrington | Sampling | Copyright Infringement | Circuit Split | Madonna | Salsoul Orchestra | Parliament | Funkadelic | George Clinton | N.W.A. | Public Enemy | Tone Lōc | A Tribe Called Quest | Tupac Shakur | Sound | Composition | Songwriter | Songwriting | Technique | Sound Recording | Songwriters | Berklee Online | Berklee College of Music

[@MuhammadDiditPrasodjo]

Thank you sir for giving us this lecture for free. This lecture is valuable especially for me as amateur music producer so that I could make original music and fair use music as it should.

[@muzikmystro]

Is it possible that Madonna may have paid-off the court in order for a ruling in her favour? Was it the first significant case of its kind in California? That’s an incredibly wide set of parameters for fair use. If you take ‘Down under’ by UB40, that tiny snippet costed the flautist a lot of money in the court case.

[@JayPluss]

I never knew location would affect sampling. Wow

[@ProJumpJones]

Good info

[@spoddie]

I understand the legal issue as explained. But as a musician I have to wonder, surely Madonna's producer can put a single horn stab in one of her songs without the effort of sampling someone else's work, something that would take me less than than a minute to record.

[@ralfnolte174]

Dear Dr. Harrington, once again a BIG thank you for these great Videos! I formulated a question in the comments of your last video. It would be vey nice if you could comment on that. Many thanks in advance, Ralf Nolte

[@dwolivas]

George Clinton came up with a creative, original musical idea. NWA took that idea and changed it a bit. But it was still George Clinton's original idea. How is that not stealing??? They did NOT come up with that creative idea themselves, they took it from another composer and made money from it. Seems like they should be required to get a license and pay royalties

[@rosiemwhit]

Does anyone think that these laws and rulings are racist? Comparing the NWA ruling to the Madonna ruling.