Interestingly, new research suggests that this shouldn’t necessarily be the case as the use of samples may actually boost sales of the original tracks.

These findings come from an article titled “Fair Use, Girl Talk, and Digital Sampling: An Empirical Study of Music Sampling’s Effect on the Market for Copyrighted Works,” of which a draft version was published a few days ago.

At the center of the study is Girl Talk‘s album All Day. Girl Talk is the stage name of Gregg Gillis, who is renowned for sampling the works of hundreds of other artists without obtaining licenses.

As a result, many music platforms refuse to carry Girl Talk’s music, even though Gillis argues that his sampling is fair use. Whether the fair use argument holds up has yet to be seen, as none of the sampled artists has taken Girl Talk to court.

In the new study, patent attorney Mike Schuster examines the effect Girl Talk’s sampling has on actual sales. With 374 sampled songs, All Day is an interesting example to assess whether the samples help or hurt sales, and the results are quite clear.

“This study found that within the bounds of Girl Talk’s All Day, the unlicensed sampling actually benefited sales of the sampled songs,” Schuster writes.

The findings are valid at a 92.5% degree of statistical significance and appear to be unrelated to factors such as sample length and previous success. While Schuster recognizes that his research is just an initial step, he hopes that it will make courts recognize the positive effects of sampling.

“Beyond supporting the premise that digital sampling may constitute fair use, the results of this study raise several notable issues and subjects for future study. One such issue is that courts only address an alleged fair use’s effect on the market for the original as a binary system, wherein the only options are harm to the market (disfavoring fair use) or no harm to the market (favoring fair use).”

The study notes that in this case both the original artists and Girl Talk would benefit from considering the samples as fair use. This is something the courts should take into account.

“There is no accepted rule on how to treat a market benefit. The failure to address this issue is questionable because a market benefit actually furthers the utilitarian goal of copyright by incentivizing the creation of new works through economic gain,” Schuster writes.

Whether the major record labels will agree with this stance has yet to be seen. For now, Girl Talk will continue his trademark use of samples and his new album is expected to drop soon on Illegal Art.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

Earlier this year, the Australian rock band Men at Work were ordered to hand over 5% of royalties for their most famous song ‘Down Under’ after a judge ruled that the flute riff in the song was based on 1934 composition ‘Kookaburra’.

Of course, the infringement was so great that no-one noticed until a TV music quiz show brought the idea into peoples heads – 28 years after the song was published. If it really was a large infringement, then it should really have been noticed 28 years and hundreds of thousands of copies earlier – or at the very least when it was performed at the closing ceremony of the Sydney 2000 Olympic Games. But all that time, nobody noticed.

These belated lawsuits are happening more often nowadays, and not just down under. In the US, a company called ‘Drive in Music Company’ (DIM) has been adopting the same sorts of tactics over the last few months. The company sued a slew of people over a Super Bowl advert for Kia, with The Hollywood Reporter listing targets for that one advert alone as “Kia, CBS, the NFL, ad agency David & Goliath, Ninja Tune Records and various other parties”.

While that particular suit was filed in a timely fashion, the same outfit has now started on a case that has a strong resemblance to that built against Men at Work. DIM is now claiming infringement on a song that’s old enough to vote.

Cyprus Hill’s ‘How I Could Just Kill a Man’ was released in 1991 as part of a double single as well as their debut album. As with most of their albums, the band uses samples from a number of songs in their own tracks. One of these samples comes from the song ‘Come on In’ by Music Machine that was released in 1966, and that’s the subject of the lawsuit brought on by Drive in Music Company.

All existing copies of Cyprus Hill’s self-titled (double platinum) album will be impounded and sales halted if DIM gets its way, and in addition the company wants damages for the losses they suffered.

The reason for the complaint? According to ContactMusic, DIM bosses were alerted to the alleged sampling after seeing copies of the song for sale on Apple’s iTunes. The case against Cypress Hill is not the only suit they’ve filed; a week earlier they filed against Leaders of the New School and Busta Rhymes over samples on another 1991 album, Future Without a Past.

After almost 20 years the only reason for DIM to want to sue now is because it’s potentially profitable. The longer they waited, the better. The Kookaburra precedent (albeit in Australia) helps make their case.

However, leaving the infringement for so long without action may constitute de-facto acceptance and licensing. Especially as, unlike Kookaburra, Cyprus’ use was obvious (so obvious, it’s been referenced on the album’s wiki page for at least 4 years). That said, it is doubtful that this will matter much in a US court where copyrights are treated with a near holy reverence, and infringement of such is treated as a cardinal sin, racking up penalties equivalent to major crimes.

Unless Cyprus can provide a licensing agreement, DIM may get what they want. When the writers of the US Constitution see how the progress clause has been abused, the least they’re likely to say, is “D’oh!”

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.