Yesterday, a judge in the 6th Circuit Court of Appeals ruled that all music sampling, no matter how minimal the sample, no matter how unrecognizably transformed, is illegal without permission from the sample-ee.
Lessig explains how the court got there and what it means:
Sampling, we're told, is piracy. But be certain to see the 19 footnotes in this relatively brief opinion, or the 28 separate quotes the opinion includes from other peoples work. I assume the court got a license for those.
Now that's not quite fair. The court's decision turns upon its "literal" reading of the sound recording statute. The sound recording statute has no de minimus exceptions, the court held. So while you are free to copy three notes from a musical composition, you can't copy the same three notes from a recording. So copying (so long as de minimus) is fine; cut & paste is not. It is a "bright-line" rule the Court has crafted: Ask permission first. (And don't worry, they might have added. It's simple.)
So once again: life in the analog world is freer than life in the digital world. You can do it, just don't use technology to do it — unless, of course, your lawyer has spoken to their lawyer.
