The Music Industry’s Policy On Sample Clearance Is Prior Restraint, and the RIAA Must End It
With regards to sampling, the Constitution already protects our right to the freedom of speech. The public is also shielded from what is legally known as prior restraint. According to the definition by Cornell Law School’s Legal Institute, “[i]n First Amendment law, prior restraint is government action that prohibits speech or other expression before the speech happens.”[1]
For instance, when a music lawyer or sample-clearance agent says that sampling or the use of samples is prohibited without a license, that is prior restraint because they are attempting to act as the government and prohibit expression — in this case sampling and the use of samples — before publication or proof that the use is in fact actionable (i.e. copyright infringement).
Right now, prior restraint is of major concern to sample-based musicians because the sample-clearance agenda is invested in the criminalization of sampling by way of convincing the public that sampling — or more specifically the use of samples — without a license is illegal. This is simply not true. Thus, as a class of music artists, sample-based beatmakers (producers) would benefit from access to informed legal guidance, not legal guidance that attempts to erase the de minimis and fair use doctrines, copyright law’s primary safe harbors for permissive borrowing.
Next, in copyright infringement cases, the courts also look at whether potential market harm might exist beyond that of direct substitution. When it comes to sampling, some commentators believe that this points to the potential existence of a licensing market for any sample. But this is a grave misreading of the fourth factor and of copyright itself. A digital sample does not inherently require a license no more than a word taken from a book or dance move taken from a piece of choreography or sequence of notes taken from a composition. Any directive that stipulates otherwise amounts to prior restraint of sampling itself, i.e. censorship or the prohibition of free speech or other expression before it can take place. To require someone to get a permit or a license before they sample something is prior restraint. In the United States, The First Amendment forbids prior restraint, i.e. the banning of expression of ideas prior to their publication.
Some commentators have argued — perhaps prompted by Bridgeport’s bizarre legal reasoning — that a sample is an “actual” piece of a work, and therefore, a sample without a license is copyright infringement. Again, this is flawed legal reasoning. Such illogic ignores the fact that some samples may be de minimis or fair use. Moreover, no “sort of copying” is presumptively an infringement; likewise, no copied material is presumptively infringement. The nature and form of a copyrighted work does not make it immune to de minimis or fair use. To insist otherwise is an example of prior restraint — censorship imposed on expression before the expression actually takes place. And while some appropriations — be they in literature, music, photography, etc. — may likely be an infringement, the actual determination of infringement must be made in a court of law on a case by case basis.
The “actual taking” double-talk also stems from an improper interpretation of the substantial similarity test. In determining substantial similarity in a copyright infringemen case, the secondary work is considered “substantially similar” only when it is nearly indistinguishable from the original “as a whole.” Some commentators have twisted the meaning of this principle and have pushed the idea that a sample is an exact taking — i.e. an actual taking — because it is an “exact copy” of a piece of a sound recording. This argument is ridiculous. Again, it’s like saying that words appropriated from a book are not an “exact copy” because the pages from which the words came were not “physically taken.” That the Sixth Circuit subscribed to this legal double-talk is astonishing.
The Music Industry’s Policy On Sample Clearance Is Prior Restraint, and the RIAA Must End It
Copyright law promotes the fact that originality, authorship, and creativity are inextricably linked. From this, we understand that copyright law recognizes two important facts. First, the fact that originality and authorship cannot exist without borrowing. Second, the fact that the practice of borrowing from existing works to create new works is vital to the advancement of society. In this way, copyright law underscores the reality that communication itself always involves borrowing. Thus, the art of sampling — like the art of writing or the art of painting — is not only an art form, it’s also a form of communication.
So assuming that the biggest threat to public discourse is the silencing of the individual speaker by the state, we can understand how prior restraint enters the equation when an organization like the RIAA tries to criminalize sampling by allowing the labels under its watch to maintain that any sample that’s not cleared is “illegal.” Thus, we must recognize then that sampling is also a free speech issue. Sampling — the activity, the art form, the music process, the kind of borrowing — is not prohibited by copyright law. And no digital sample is copyright infringement per se. Yet the sleight-of-hand-language that the RIAA condones implies that sampling done without clearance is prohibited and that any sample not cleared is “illegal.” Consequently, the RIAA’s insistance that all samples are illegal before they’ve even been published is a violation of free speech, because it imposes a restraint on a publication — in this case a digital sample — before it is published and without there first being a judicial determination that the digital sample does not qualify for First Amendment protection. Hence, the other major problem with sample clearance, specifically as its portrayed by the music industry, is that it’s really a form of de facto regulation, suppression of free speech, and prior restraint.
By insisting that “all samples must be cleared,” the RIAA-backed labels are not merely taking a prudent, “better-safe-than-sorry” stance, they are deliberately saying that any sample that is not cleared is “illegal.” In effect, then, the RIAA is not only undermining a fundamental right of the public, it’s also attempting to regulate which speech or expression can be publicly released. In other words, as Negativland first noted in 1998,[2] the RIAA-approved “all-samples must be cleared” stance is actually a form prior restraint. And it’s prior restraint that should alarm us the most.
By definition, prior restraint is a type of censorship that restricts speech and expression and unlawfully places a restraint on that speech and expression before it’s published. Under prior restraint, a government or authority — like the RIAA — controls what speech or expression can be publicly released. The First Amendment of the United States Constitution protects speech (expression) and freedom of the press. Prior restraint, which is deemed unconstitutional, is not limited to speech. It can impact all forms of expression including writing, art, and media. “It legally takes the form of licenses, gag orders, and injunctions.” What happens is, the government or authority prevents distribution of the writing, art, or media, either outright or by placing conditions that make it difficult for the distribution to occur.[3] This is exactly how sample clearance is being used by the music industry today.
Although the RIAA represents record labels and distributors, it describes itself as a trade organization that “supports and promotes the creative and financial vitality of the major music companies.” The RIAA further claims that its members, which it says comprise the “most vibrant record industry in the world,” invests “in great artists to help them reach their potential.”[4] If we take the RIAA at its word — that it supports and promotes the creative vitality of music companies, and that it backs the idea that record companies invest in artists to help them reach their potential — then the RIAA should be an advocate for the facts about copyright law and an ally to sample-based musicians. This means that, with regards to the digital samples of sound recordings, the RIAA should take the lead in educating the music industry about permissive borrowing and the objectives of copyright law.
Again, the false-crisis narrative is an invented problem. The reality is that there is no crisis. As such, the RIAA could announce that it takes copyright law seriously for all stakeholders — the public, which include artists who create music using digital samples sound recordings, and music rights holders. The RIAA could also openly acknowledge that de minimis and fair use applies to sound recordings; and, as such, the RIAA could formally announce a directive that instructs its member companies to recognize that some samples may be de minimis or fair use. Abiding by this default directive and recognition, the RIAA could create its own “industry standard” guidelines for what it considers to be clear cases of de minimis or fair use samples. Under such clearly defined guidelines — which still could never supersede the statutory limitations and execptions already codified in the Copyright Act — the RIAA could assert specific guidelines that detail when a sample does not need clearance. The RIAA could share these guidelines with recording artists and musc rights holders alike.
With regards to the recognition that some samples are fair use, there’s already precedent for this. In 1998, the RIAA formally recognized fair use with regards to sampling. In announcing an amendment to its CD Plant Guidelines, the RIAA had this to say:
These guidelines are intended to address piracy. Some recordings presented for manufacture may contain — as part of an artist’s work — identifiable “samples” or small pieces of other artists’ wellknown songs. In some instances this sampling may qualify as “fair use” under copyright law, and in other instances it may constitute copyright infringement. There are no hard and fast rules in this area and judgments on both “fair use” and indemnification must be made on a case-by-case basis. [emphasis mine][5]
Does the RIAA still stand by its statement that, in some instances, some samples may qualify as fair use under copyright law? If so, the “all samples must be cleared” stance runs counter to the RIAA’s 1998 statement. Consequently, I think it’s time for the RIAA to reaffirm the statement it made in 1998 when it was under threat of a lawsuit for prior restraint. Otherwise, the RIAA may soon find itself once again facing the threat of a lawsuit for prior restraint. Only this time, given developments since 1998, the case against the RIAA is much stronger.
Notes:
1: Cornell Law School Legal Institute https://www.law.cornell.edu/wex/prior_restraint.
2: “DO WE REALLY HAVE TO SUE THE RIAA????” http://www.negativland.com/ archives/014riaa/, (Accessed March, 2012) Negativland first recognized this more than 25 years ago!
3: “What Is Prior Restraint? Definition and Examples,” Thought Company https:// www.thoughtco.com/prior-restraint-definition-4688890#:~:text=Prior%20restraint%20 is%20a%20type,oppression%20in%20the%20United%20States.][FN: “What Is Prior Restraint? Definition and Examples,” Thought Company https://www.thoughtco. com/prior-restraint-definition-4688890#:~:text=Prior%20restraint%20is%20a%20 type,oppression%20in%20the%20United%20States.
4: RIAA website: https://www.riaa.com/about-riaa/ accessed December 15, 2021.
5: “RIAA RESPONDS POSITIVELY TO NEGATIVLAND” http://www.negativland. com/ archives/014riaa/positiv.html, (Accessed March, 2012); see also: “Statement By the Recording Industry of America” http://www.negativland.com/ archives/014riaa/ riaa_statement_082298.html, (Accessed March, 2012).
