How Alex Black and EMI Just Became Friends of the Sample-Based Musician Community, and How they May Have Saved an Important Piece of the Music Industry’s Sample Clearance System
By AMIR SAID (SA'ID)
In September, 2015, EMI, the world’s largest music publisher, announced it’s sample amnesty program. Basically what EMI said to sample-based musicians was this: You have six months to come to us from out of the shadows and turn in your sample-based songs that utilize samples of songs from our Production Music Division’s catalog, in return we will give you a license and we won’t penalize you for unauthorized use. But here’s what EMI is certainly not saying: We recognize that some sample-based works may have made fair use (or de minimis) of our catalogs, and thus you do not necessarily need a license.
In other words, EMI’s amnesty offering, as forward thinking and innovative as it is, is a means to increase revenue form their Production Music Division catalog. First, the program allows EMI to expand their catalog with sample-based songs without having to grapple with adding sample-based songs that would otherwise be unobtainable due to either EMI’s unawareness of their existence or EMI’s unwillingness to mount a wave of copyright infringement lawsuits against musicians that they suspect have used samples from their Production Music Division’s Catalog. Second, and more importantly, EMI’s sample amnesty serves as a way to draw attention to their Production Music Division catalog and to invite sample-based musicians to sample songs from said catalog, which includes songs that they own both the master recording and composition copyrights to; a key point, since owning both rights allows EMI to easily and quickly clear samples.
In the press release that EMI’s sample amnesty program was announced, Alex Black, EMI Production Music Global Director and the main man driving the amnesty, said, “Our vision for this amnesty is to highlight the wealth of possibilities open to producers working with samples.” I take him at his word. Still, in addition to highlighting the possibilities of sampling their Production Music Division catalog, EMI is also interested in corralling perhaps a large swath of uncleared sample-based songs — songs which may have never needed to be cleared in the first place — and then monetize those “new” songs.
But, as I point in my book The Art of Sampling, all samples do not need a license (i.e. need not be cleared), because sampling itself (or all samples) does (do) not constitute copyright infringement. U.S. Copyright law explicitly protects de minimis (small amount) and fair-use usages of all copyrightable material. Thus, can encouraging someone to turn in a song that uses a single drum hit/sound, a small snippet of a sampled drum break, or an “electronic segment looped” — all staples of the art of beatmaking — be seen as EMI’s way of subverting U.S. copyright law? Most music industry lawyers promote the lie that “the law” says even a sample of a stand alone drum sound requires a license, even though some of them silently acknowledge that such usages are either de minimis or fair use. But, more importantly for their purposes, music industry lawyers also know that most people, especially sample-based musicians, are unaware of the de minimis and fair use doctrines.
There is a big difference between “the law” and how the law works. Copyright infringement must be proven in a court of law. Thus, pre-emption, not just a pre-emptive suit (for example, what Pharrell and Robin Thicke did in the “Blurred Lines” case), is often used to circumvent the law. So what do you do if you’re EMI and you want to add many sample-based songs (including those that may have made de minimis or fair use of EMI songs) to your catalog? Offer amnesty. Smart move.
By getting people to come forward and admit use, EMI gets access to the new sample-based songs, and there’s no worry of an artist claiming fair use later on. In essence, once licensed, the maker of the sample-based song has conceded that the song needed to be cleared, and has thus forfeited his right to argue that the song made fair use of a song owned by EMI. This concerns me deeply, as I wonder if de minimis and fair use — mainstays of U.S. copyright law — will continue to be overshadowed by yet another mechanism that further pushes all sampling towards the clearance trail, effectively obscuring the fact that the de mininis and fair use components of copyright law are critical safe harbors for sample-based musicians.
I applaud Alex Black and EMI for engaging with the sampling community in this way. It’s refreshing to see their support for sample-based music, particularly their description of the art of sampling in a creative context — it’s certainly a far cry from recent descriptions of sampling as “piracy”. Further, the fact that EMI will offer a licensing deal at current market rates, and that they will not, however, seek back royalties for any earnings made from songs that feature samples of their catalog is great. But if we put aside the actual implications of the amnesty itself and focus on the “license” component of EMI’s innovative initiative, there remains some serious questions that every sample-based musician considering EMI’s proposal should want to have answered.
First, how will this amnesty actually work on the publishing splits? In exchange for coming forward, will sample-based musicians simply receive a license and no penalty? Or will they also receive a split of the publishing? Better yet, will they have to forfeit 100% of the publishing to EMI? Furthermore, what will EMI’s boilerplate amnesty agreement look like? What sort of stipulations will it contain? Also, if you do come forward with a sample-based song that incorporates a sample of a song from EMI’s Production Music Division catalog, will you be required to submit the song first, offering up details on which songs from EMI’s catalog that you actually sampled? If you change your mind, EMI has the song and, because of you, they know the sample(s) used. Thus, if you disagree to the license and amnesty, does that mean you’ve now voluntarily put yourself in the position to be sued by EMI for copyright infringement?
One way to see this is: EMI has all of the leverage, all of the upside. Another way to see it is: By gaining a license, a sample-based musician now has chance to earn additional revenue by shopping the now-licensed works to artists and outlets that they previously didn’t have access to. Seems to me no matter where you come down on the copyright divide, that’s a good thing for sample-based musicians.
Any way you look at EMI’s amnesty offer, one thing is clear: This innovative program is a strong indication of where the music industry is headed with regards to sampling. The major labels and music publishers have left (and continue to leave) a lot of money on the table by treating sampling as some sort of bandit activity that requires a license in all cases; I think EMI’s move is a recognition of this fact. Moreover, I believe that Alex Black is sincere when he says that EMI’s program “aims to encourage new creative use of the expansive archives of the multiple participating EMI libraries.” But I also believe that Black is aware of the burgeoning realities of sampling and copyright law.
As more people take part in sampling in general (what Lawrence Lessig calls an ever growing “Remix Culture”), they will inevitably learn more about copyright law and aim for making works that are likely de mininis or fair use in nature. Thus, armed with a better understanding of copyright law, as well as the knowledge of recent court cases in which fair use prevailed, these sample-based musicians will be less inclined to seek licenses for their works and less intimidated by threats of lawsuits for copyright infringement. So I believe EMI’s amnesty offer — which I appreciate and support — is also the music industry’s sober acknowledgement of reality. About time.