The day before Beastie Boy Adam Yauch’s untimely death from cancer, a lawsuit was filed in New York accusing him and his bandmates of illegal sampling. What’s unusual about this case is that the samples in question supposedly appeared on the 1989 album Paul’s Boutique. An obvious question is why almost 25 years went by before anyone decided to sue.
The reason? The alleged samples can’t actually be heard by the ordinary listener. Which raises a kind of existential question about intellectual property. If no one can tell that something is copied, is it still illegal to copy it? And if so, why?
Let’s assume for the sake of argument that the samples in question exist. They are snippets of songs by Trouble Funk, a 80s era go-go band. Trouble Funk’s complaint declares that the way the Beastie Boys sampled the tracks “effectively concealed to the casual listener” the fact that they are samples at all. And it was “only after conducting a careful audio analysis” that Trouble Funk even knew for sure that they had been sampled.
Trouble Funk does not seem to think this matters. But our legal system restrains copying for a very specific economic reason: because copying is thought to undercut the market for the original and, as a result, destroy the incentive to create. Concern for the originator’s incentive to create is the justification both for copyright law’s ban on unauthorized exact copying and its prohibition on unauthorized inexact copies made in the production of what copyright refers to as “derivative works” – that is, works that use bits and pieces of a copyrighted work in some way, but often don’t copy it wholesale. A lot of sampling falls into this second category.
You might question whether any brief sample incorporated into a very different song could have this economic effect. But that is a broader question for another post. For the moment, let’s assume that samples are generally harmful to originators, and therefore require a license to use. But can the same be said about samples that no one can hear? No. If it took Trouble Funk 23 years and a sophisticated analysis to even figure out that they were copied, then it is hard to see how that copy in any way caused them economic harm.