“Culture is impossible without a rich public domain – culture grows by accretion, with new forms building off the old,” is the compelling mantra of Nate Harrison in his modest-but-powerful video posted on You Tube about the ownership of sound samples.
Harrison casts light on the issues and implications of copyright in music (specifically, musical samples) through the history of the “Amen Break,” a six-second drum sample from the B-side of a chart-topping single from 1969. This sample was used extensively in early hip hop and sample-based music, and became the basis for drum n bass and jungle music… a six-second clip that “spawned several entire subcultures.”
The original creators of the Amen Break have never sought legal action to claim ownership of this notable six-seconds of sound. It seems that by the overall amount of its appropriation by producers and Dj’s after the advent of sampling technology in the early 1980s the break had entered into the public domain. Harrison notes, “to trace the history of the Amen Break is to trace the history of a brief period of time when it seemed digital tools offered a potentially unlimited amount of new forms of expression; where cultural production at least musically was full of possibility by virtue of being able to freely appropriate from the musical past, to make new combinations and thus new meanings.”
There are two copyrights involved in the Amen Break. The first is the copyright in the sound recording: if the owners of the masters could prove copying of their recording, then this could be the basis for an infringement claim. However, it appears most uses have been re-recorded (e.g. the drum tab on Wikipedia is readily available, and certainly electronic kits would involve a re-recording – not only to ‘clean up’ the sound quality, but also to chop it up, space out the individual beats and create a new sound conducive to drum n bass).
The second copyright is in the musical composition. This is the interesting part. When the original recording was first released, the break was not what would at the time have been classified as a hook. It was a break, which by the standards of the day, I would argue, was not unique enough to attract copyright protection. Since then the break has been sampled and used to the point where it has attracted an independent identity (with the help of advancements in sampling, recording, and production technology). The interesting part is, who owns the new identity? Does a new identity accrue back to the original copyright holder? Is it something that one of the early appropriators could claim copyright in? Is it a public domain identity? Seems it’s the latter, in that its use is ubiquitous and no one person can step forward as being the original user of the same four bar beat used in a manner that now by more contemporary standards is unique.