I watched an interesting documentary last night. Copyright Criminals looks at "sampling" in Hip Hop. I don't know anything about Rap or Hip Hop but I found the legal mess interesting. I'm of two minds (what else is new?) the song that has samples in it is a different song but they use parts of other recordings to make it so some credit (payment?) should go to the original artists.
One of the people in the documentary commented that hip hop artists would have to pay for anything taken from somewhere else even if it was only a second. It is legally necessary to get "sample clearances" for each sample used. James Brown's famous "Huh!" was the example he gave. Someone else said that someone paid $100,000 for two seconds of Marvin Gaye. It's cheaper to cover a song than it is to sample one.
The money doesn't always go to the artists. Clyde Stubblefield, James Brown's drummer in the mid-60s) is supposedly the most sampled musician but he hasn't received a penny because he doesn't own the rights to the music. He was paid for his time in the studio. Sometimes the record's producer has right to the music and money from sampling clearances goes to the producer and not the artist.
A good point on the pro free sampling side is to consider when a photographer takes a picture and then a painter paints a picture from it. The painting is considered a separate work of art.
Writers are allowed to quote small pieces from works by other authors without permission as long as the original author is credited. To use a large (more than 4 lines) piece of another authors work the writer would have to get the author's written permission.
I'm thinking the same thing should work for music. If it's just a few seconds everyone should just let it slide. If the sample is large then money (and credit in the liner notes) should go to the original artist.
There is a difference between a "huh!" on a record and having large parts of another song as the basis of the new song. I can think of two songs that went too far Ice Ice Baby by Vanilla Ice and U Can't Touch This by MC Hammer.
The MC Hammer song sampled the main riff from Rick James' Super Freak
Vanilla Ice took a huge chunk out of Under Pressure by Queen & David Bowie. Anyone who knew the original songs could tell right away that whole chunks were used in the other songs.
So did Hammer and Ice really write new songs? Should there be a percentage of notes that must be original in order to have a song considered a new entity? Or is using old sounds in an original way enough?
I think it will take a long time before this particular problem is figured out. Don't even get me started on mixtapes.