Paul’s Boutique, Sampling, and the Law

I did a column in honor of MCA about how the shifting legal landscape since the release of Paul’s Boutique would likely make it impossible to commercially release such a sample-heavy record today. I wanted to follow up on a couple of points people have raised in response since there’s some nuance that ends up left out when you’re looking for a digestable column.

For starters, many people have raised the point that “most” of the samples in Paul’s Boutique were in fact cleared with the original recorders. Two issues with this. One is that this is not a horseshoes and hand grenades situation. If your album has 300 samples and “only” 15 of them get you sued and you “only” lose five of them, then yes “most” of your samples have cleared. But your business model is still shot. The second is that it was much cheaper to license samples at a time when the legal landscape was murkier. The litigation of the early 1990s made the whole process much more expensive than it was earlier.

Another issue raised in comments is the idea that a “fair use” by definition can’t be commercial. I was glad to see someone raise this point if only because I do wish we could re-inject more life into the commerce/non-commercial distinction for broad copyright purposes. But my goal would be to use the distinction to raise the scope of tolerated non-commercial copying, not to narrow the scope of allowable commerce. Commerce is a legitimate and important human undertaking, and the goal of copyright law should be to facilitate useful commerce. That includes preventing large-scale commercialized digital copying, but I think also means allowing commercialized sampling, quoting, and repurposing of existing material.

Someone on Twitter argued that the analogy to quotations of text doesn’t hold because we’re not talking about quoting for a review here and I (allegedly) wouldn’t be allowed to write a mash-up book. But I’m not sure that’s true. Suppose I were able to compose a coherent novella consisting entirely of precisely reproduced complete sentences lifted from literary classics. That might be impossible to pull off. But if I could tell a story that way, I don’t think it would or should be illegal. I think we would say that, among other things, there’s a strong free speech interest in not blocking the publication of books. Or to offer a less grandiose idea, if someone did a listicle of “the ten best opening lines in literary history” that quoted the lines wouldn’t that be a kind of text mashup? Just yesterday, I read a funny Gawker post titled “The 6 Best Pages of Henry Blodget’s 6-Page Article About Zuckerberg” that involved literally reproducing 100 percent of the text of an article from New York. Under ordinary circumstances, you wouldn’t be allowed to do that but in the specific context of the post the reproduction is essential to making a substantive argument.