No such thing as a free sample  

I guess it's to be expected in a post-pomo world, but the paranoia over intellectual property rights is really getting out of hand. According to the latest federal appeals court ruling, uncredited musical sampling is illegal, even when the source of a sample is unrecognizable. Lifting snippets of music from older recordings for new music -- a note here, a chord there -- is now legally cognizable appropriation. The effects are obvious for rap and hip-hop artists, who often rhyme over samples of music taken from older recordings, but there are implications for all purveyors of creative content.

The ruling is pretty dubious from a policy standpoint. Assigning property rights might be strictly a legal question, but mapping out so much territory for those who already own the songs as a whole will have reverberations through the industry, stifling creativity in a significant way. And since a recording artist who acknowledges sampling may be liable even when the source of a sample is unrecognizable, the ruling creates incentives simply to stop acknowledging sampled pieces (especially when they're minor, unrecognizable snippets of music).

I can't speak to whether the ruling will stand or not, but I'm really surprised this kind of sampling isn't already considered fair use. After all, pastiche and parody are taken to be legitimate -- aren't these kinds of transformations along the same theoretical lines? Samples provide the basic vocabluary for hip-hop and related forms, and implicit in the relationship between sampler and samplee is an aesthetic and political statement. There's a long tradition here: early jazz players coopted and transfigured showtunes of the day, and when the lawyers came after them, they kept the charts and changed the melodies.

By the way, the choice of the word vocabulary above (among others) was deliberate. Language, like music, squeezes meaning out of successively larger structural chunks -- phonemes, morphemes/words, sentence, paragraphs, oeuvres. Depending on the level of discourse, different chunks become more or less relevant to meaning -- so, phonetic relationships are essential to the poet, largely ignored by the journalist. But the law doesn't distinguish between poetry and journalism on these questions -- just like it doesn't recognize that samples may be the phonemes of one music and the paragraphs of another.