A Brief History of Sampling and Legality

A Brief History of Sampling and Legality

by Ted Schmiedeler

When you ask who invented hip hop and where it was invented, you will probably get different answers from different people. Most agree on the South Bronx as the origin of the genre. Few these days will say Queensbridge. Even fewer may argue somewhere else. When asked who is the originator of the genre, who snapped the culture into existence, who sat on the cusp of when there was hip hop and when there was not, you will most commonly hear DJ Kool Herc. Some will argue for Grandmaster Flash, and some for Afrika Bambaataa. Many, like myself, will argue that the genre and broader culture grew out of a variety of converging factors—funk, soul, disco, nightclub/party culture, and urban poverty, among others— making it hard to pinpoint an exact moment when hip hop started. The important thing is that hip hop started as a radical culture, born out of the Black youth of impoverished New York communities, who innovated given the resources available. One element that has been there since the beginning is sampling.

Many early members of the hip hop community found their inspiration in their parents’ record collection. Grandmaster Flash, known for his turntable prowess, spoke of his childhood obsession with watching his father put on a record after he would come home from work. The jazz, soul, funk, and R&B of the 1960s and 1970s would form the basis of this new cultural movement which started in the 1970s and ran full steam ahead into the ‘80s. Grandmaster Flash described an experience at a house party in his youth, watching the crowd lose it during the drum break of each track. DJ Kool Herc had a similar experience. These earlier innovators asked: why can’t we just have a track that is all drum break? That’s the best part. Why not extend it?

Thus, sampling as it pertains to hip hop was born. DJing—effectively live sampling—was born on a two turntable setup. Turn on one, play the drum break. When it’s over, turn to the second turntable, which has the drum break cued up. While the break is playing on turntable two, reset turntable one. Repeat. With this innovation, early DJs took up turntable and record as their instrument. They not only needed technical prowess to seamlessly loop the beat manually, but they also needed an ear for good breaks, not simply good records.

As hip hop spread, so did sampling. And as hip hop moved from an exclusively live genre to a recorded one, DJs entered the recording studio. Records made exclusively of drum breaks were created to allow DJs to enthuse the crowd without having to rotate between so many records. Sampling devices, such as the Fairlight CMI (one of the first-ever samplers), were invented and entered the market throughout the late ‘70s. Samplers allowed artists to record music onto a device and play it back as needed, making sampling for recorded music much easier.

As the popularity of hip hop grew, so did the availability of samplers. Early models could cost upwards of $5,000 in the 1980s and held little memory, so later models aimed to optimize for cost effectiveness and memory length. Hip hop’s two most notable samplers are the Akai MPC series, with the MPC 3000 being seen as the industry standard in the 1990s, and the Emu SP-1200, especially popular among East Coast producers. Certain samples themselves also became popular. Chief among them is James Brown’s “Funky Drummer” drum break sample, which saw drummer Clyde Stubblefield’s work get repurposed thousands of times.

The 1980s was a time of immense innovation in sampling. With DJing, one could only sample one record at a time. With samplers, producers rose in prominence and could save recordings and layer multiple instrumentals and elements. Producers like the Bomb Squad from Public Enemy were known for their bombastic sound, which drew in upwards of five samples per track. At this time, there were no legal guardrails for sampling. Copyright law existed, but had yet to be applied to sampling in hip hop, meaning the precedent for artists up to this point was that any recording they could get their hands on was fair game to be used in their music.

However, this precedent would be rattled to its core in 1989. De La Soul’s innovative debut project 3 Feet High and Rising, produced by Prince Paul, was released, incorporating abundant samples from eclectic sources of jazz, pop, soul, and more. In the middle of this record is a 1:11 interlude track titled “Transmitting Live From Mars” which pulls a 12 second sample from “You Showed Me” by The Turtles, a pop group whose popularity peaked in the 1960s. The Turtles sued De La Soul for $2.5 million in 1991 for using their music, allegedly settling for $1.7 million out of court. The Turtles’ lead man Mark Volman described the suit, saying, “Sampling is just a longer term for theft. Anybody who can honestly say sampling is some sort of creativity has never done anything creative.”

The second blow to sampling would come in 1991 with the court case Grand Upright Music, Limited vs Warner Bros. This case saw Biz Markie’s track “Along Again” sample Donnie O’Sullivan’s track “Alone Again (Naturally).” O’Sullivan’s Grand Upright Music won the case. Judge Kevin Thomas Duffy, who opened his decision by citing the Ten Commandments, ruled that sampling without express permission from the owner of the copyright was copyright infringement and thus unconstitutional. Markie would recover, with his next album titled All Samples Cleared, but permanent changes followed.

This case marked a watershed moment in hip hop and in the history of sampling, stifling the creative juices of the practice at its peak. Following the decision, labels and artists alike panicked and reworked albums in progress. Free sampling was banned. All samples now had to be cleared by the labels of the music getting sampled and in many cases royalties had to be paid. Some artists supported sampling and gave their work for free to be reworked. Most sought royalties, especially groups who were seeing their music rediscovered by crate diggers and producers who breathed new life into five second loops previously long forgotten.

Many got greedy. Lou Reed of the Velvet Underground, perhaps the best instance of this greed, clashed with an up and coming A Tribe Called Quest over a sample. Q-Tip from A Tribe Called Quest sampled the bassline in the track “Walk on the Wild Side” by Lou Reed on Tribe’s soon-to-be smash hit “Can I Kick It?” Reed affirmed that the only way Tribe could sample the song was if they paid all royalties from the track to him. To complicate matters, the portion sampled by Tribe was not written or played by Lou Reed. It was written and played by session musician Herbie Flowers, who was paid for his studio time and made no royalties on “Walk on the Wild Side.” Thus, Lou Reed was using a bassline he did not write or play in his own track to take all the money from a different track that reworked that same bassline he did not write or play. Further, A Tribe Called Quest knew they had a hit on their hands that would help launch the group’s career, so they accepted the deal despite how poor it was for them.

Sampling in the 1990s would be restricted from what it was in the ‘80s. In the ‘90s, groups focused on using one to three samples per track. Adding more samples would drive up production costs for an album. Only the biggest artists could sample the most expensive music because of sample clearance fees. Warner Bros. v. Grand Upright Music, Limited created a pay-to-play system where the richest producers could stay on top because they could afford the best samples to produce the best music. Smaller artists were at the whim of record labels and any independent artists had a hard time navigating the sample clearance landscape without a record label to be their intermediary, giving more power to the labels. The story, however, is a bit more complicated, as dedicated hip hop disciples continued to seek out rare, eclectic, affordable sound bites to sample. For some people, restriction only forced them to get more creative. A dedicated underground would persist. However, as the ‘90s waned and the golden era of hip hop passed, sampling became increasingly less common in the early 2000s and in mainstream hip hop.

Another development in sampling’s legal history would take place in 2000. Jazz flutist James Newton would file a complaint against the Beastie Boys for their use of a three-note six-second sample in one of their tracks from the 1990s. However, in a big win for sampling, a judge would rule that this specific use of the sample was “de minimis,” or so small that it did not require a sample clearance. This set the precedent that artists could use samples in small doses and would not have to go through the financial and logistical hurdles of clearing them. However, this small win would be rolled back in 2005 with the case Bridgeport Music, Inc. v. Dimension Films. In this case, NWA was sued for their use of a two second sample of a Funkadelic track in their 1990 “100 Miles and Runnin.” The judge overturned the de minimis precedent and ruled that all samples, no matter their length, required a license. He stated, “Get a license or do not sample. We do not see this as stifling creativity in any significant way.”

Claire McIeish, 2023.

However, I would argue that it did stifle creativity, and that legal restrictions do continue to restrict sampling. Sampling declined following the Grand Upright Limited case, according to a study produced on the topic by Claire McIeish and published by the Cambridge University Press. This study outlines a decline in sampling in the immediate years following the case. Many had to adjust their style. Public Enemy’s wall of sound philosophy could not survive hundreds of sample clearances, leading to a scale-back in their 1991 release Fear of a Black Planet, which came out months after the Grand Upright case. Artists had to adjust their style, contorting their vision into restrictive legal frameworks if they could not afford to pay for every sample they sought to use. The rich could stay on top, as an infinitely large budget could clear almost any sample, while the upand-coming had less access to sampleable music due to financial constraints.

Further, in this current system, fewer samples are used per track, meaning the prominence of each sample in the track (when they are used) often increases. This makes tracks more derivative of what they sample. If a track samples three main songs and seven more songs in a minor way, the track will be more unique than if a song only samples one song. The current system incentivizes the latter over the former, because it is easier and cheaper to secure clearance for just a single song. By putting an effective cap on the number of samples used in a track, through the addition of restrictions and red tape, the court system and record labels have only produced the very thing they sought to destroy: hip hop tracks that are purely derivative of what they sample.

If courts give producers free rein to make whatever they want, they will find creative ways to make new music. We saw this before the Grand Upright case. When given the choice between creating something new and something purely derivative of source material, good producers will create something new. There may be producers ripping off existing music, but they will not be able to compete with producers creating transformative works. On the contrary, give a Drake album a listen; I am sure you can find a song that is extremely derivative of what it samples, to the point where it sounds more like a remix than a new song, such as “Circo Loco” or “Nice For What.” This type of sampling is exactly the type of thing early court cases tried to prevent. Instead, the cases have just created a way to mainstream such music to the benefit of record labels, who can cash in on sample clearance fees and creatively shallow big hits.

But the current system does not necessarily serve the artists getting their music sampled, either. The holder of the recording license has ultimate say in a sample clearance, giving labels immense power in this process. Labels set prices and negotiate from a place of immense strength, as producers looking to sample have more to lose from their song getting denied because they cannot pay a clearance fee. Additionally, session musicians suffer immensely. Clyde Stubblefield, the drummer whose “Funky Drummer” drum break has been sampled literally thousands of times, struggled to make ends meet playing local shows in Madison, Wisconsin for much of his life and had to crowdsource money to cover medical bills when he fell ill. His label— or rather, James Brown’s label—made millions off his drum break.

Of course, in my view, musicians should get paid and should have to consent when their music is sampled. However, the current system fails to treat both the sampler and the samplee as equals. It tilts the playing field against producers in favor of labels who can cash in big on clearance fees. It produces an environment where the big artists have more creative freedom, making it harder for the upand-coming to climb to the top. Understanding this history and identifying the current system’s shortcomings is crucial to building a less exploitative, more equitable one for future artists.

Works Cited

“An Overview of Sampling.” IP Law 422 001, iplaw.allard.ubc.ca/2023/02/23/an-overviewof-sampling/. Accessed 23 Dec. 2024.

Washington Journal of Law, Technology & Arts. “The State of Sampling: The Landscape of Sampling and Copyright Law in 2023.” Washington Journal of Law, Technology & Arts, 14 Apr. 2023, wjlta.com/2023/04/14/ the-state-of-sampling-the-landscape-ofsampling-and-copyright-law-in-2023/.

“Classic Copyright Cases – De La Soul.” Briffa Legal, 6 June 2023, www.briffa.com/blog/ classic-copyright-cases-de-la-soul/.

Mcleish CEA. Hip-hop sampling aesthetics and the legacy of Grand Upright v. Warner. Popular Music. 2023;42(1):79-103. doi:10.1017/S0261143023000090

Ted is a regular host of Extended Technique, Thursdays 3-6pm. If this article has whetted your appetite for innovative hip hop samples, check out his Free Samples series on WKCR’s Soundcloud, for all your hip hop sampling needs!