Updated: May 22, 2019
The articles “The Ethics of Digital Audio-Sampling: Engineers’ Discourse” by Thomas Porcello and “Sound Sampling Protection and Infringement in Today’s Music Industry” by Molly McGraw look into the ethical question of whether or not a sound can be owned and what kind of responsibilities a user of a sound has to the original creator. Porcello’s article takes into account the views of the engineers of sampled music and discusses the circumstances in which sounds can be owned. McGraw’s article dissects the laws in place to prevent and prosecute copyright infringement, as well as the effect sampling has on the creativity of music. The ethical question in relation to digital sampling boils down to the ownership of a creative piece and their compensation when it is being replicated beyond the original intended use. The answer is not one that is cut and dry - it relies on factors such as the knowledge of use, payment agreements, and the modification of the original piece to reflect considerable creativity in recreating the sample for a new purpose.
To understand the laws of copyrighting, one must understand the difference between sound recordings and digital sound samples. According to McGraw, “Sound recordings are defined as ‘works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work, regardless of the nature of the material objects…” (153); a digital sound sample takes a piece of a an analog sound recording and converts it into a digital representation that assigns a numerical value to the voltages throughout the sample (148). This base sound can then be electronically altered to represent the sound the engineer is looking for (McGraw 150). Copyright laws protect the financial aspects of the creative works of authors, but they also aim to facilitate the creative process and the ability to publish its products (McGraw 153).
One of the requirements to copyright a piece of work is establishing “originality”, however this originality is defined as being expressive enough to show a unique or identifiable personality that can distinguish someone’s authorship (McGraw 157). In order to prove infringement on a copyright, one must prove that their work has been copied. To establish that a work has been copied, it has to have “substantial similarity” to the original piece, however imitating the sounds of the original piece do not warrant infringement (McGraw 160-161). According to McGraw, samples are copyright infringement because they “directly or indirectly recapture the actual sounds fixed in the recording”, therefore they are literal copies of the original copyrighted work (160-161). Despite these legalities and definitions, there is a slight exception : fragmented literal similarity. A suit for copyright infringement can still be upheld if the sample includes the portion of the original work that makes it substantially appealing to its audience and is a large contributor to the success of the subsequent sample (McGraw 163). This plays into ethics in regards to where credit and royalties are due in the event of the subsequent recording.
One example used in both articles is David Earl Johnson’s conga performance which was knowingly recorded as a sample, but later used in the recording of Miami Vice’s soundtrack by Jan Hammer (McGraw 151; Porcello 70). In this case, due to the recognizable importance of this sample to the resulting recording and the fact that Johnson would have been compensated if he had studio time for the soundtrack recording, it would be likely that copyright infringement repercussions would occur (McGraw 164; Porcello 70). In the article “The Ethics of Digital Audio-Sampling: Engineers’ Discourse”, Porcello looks at the ownership of a sound based on its origin: for example if a lyrical passage is sampled it would be copyright infringement because it is essential a copy-and-pasting effect, however a sample of a instrument sound is not as explicitly infringement because of the ability to emulate it (72). Porcello’s position on the credit given to a musician for their vocal samples comes from their breakdown of the music industry hierarchy where in most cases the musician is seen as an interchangeable wage-working unit in the production of a sound recording. It is argued though, the musician is not interchangeable if the sampling is produced because of their unique sound, therefore they should be credited and compensated. It is assumed that the sound from the musician cannot easily be recreated, therefore it can be owned by that musician, whereas the sound produced by an instrument in an original recording can be reproduced therefore there is no real ownership available (Porcello 77-78,81).
I believe digital-sampling can be ethical as long as the work is credited where it is due. In the case of using sampled instruments, if the rhythm is not distinguishable to a particular musician after the manipulations done, this should be allowed because it expands on the creative realm of music. When the sampling is recognizable, there should be compensation to the original producer/musician as they would have been compensated for a studio-session - as the sound was maintained for its uniqueness. Samples are generally used as a base sound which engineers use a starting ground until they distort and configure the digital representation to better represent the sound they were looking for (Porcello 74). The usage of digital sampling can be beneficial and ethical when both parties are consenting , as is usually the case in lower-levels of the music industry. The root of the ethical questions seems to be the financial compensation for the sounds that are being used; in the event that the musician is seen to be interchangeable, engineers have argued a flat rate to use the sampling however they please - without the musician holding any right thereon after. However, if the musician is not seen to be interchangeable it is expected that they receive continual compensation (Porcello 74).
Digital sampling is a complex legal and ethical issue in the sound production world. The question of the ownership of a sound relies on multiple factors, as well as the rights the owner has to that sound. Both articles “The Ethics of Digital Audio-Sampling: Engineers’ Discourse” by Thomas Porcello and “Sound Sampling Protection and Infringement in Today’s Music Industry” by Molly McGraw explore these ideas. Digital sampling can be a more ethical practice as long as the original author is compensated in the appropriate way if their ownership has been established or their contribution was significant.
McGraw, Molly. “Sound Sampling Protection and Infringement in Today’s Music Industry” Berkeley Technology Law Journal, vol. 4, no. 1 spring, 1989, p. 147.
Porcello, Thomas. “The Ethics of Digital Audio-Sampling: Engineers’ Discourse” Popular Music, vol. 10, no. 1, 1998, pp.69-84