BY DOUGLAS DONESON
So, this conversation isn’t new, in fact it’s quite old. But hip hop fans have observed in real time and in hindsight the evolution on sentiments of “biting;” one rapper taking another rapper’s beat, verse, or line and using it in a song as his own. Originally, it was taboo in the hip hop culture to bite. This inviolable rule makes sense; hip hop artists did not want others to fake the funk or profit off of their creativity. Then in the late 1990’s there was a surge in what was once categorized as biting, except this time it wasn’t biting per se, instead it was considered paying homage. Jay Z explained this concept as, “I am a writer not a biter/ for myself and for others/ I say a B.I.G. verse, I ‘m only biggin’ up my brother.”
A biting discussion through an intellectual property lens quickly turns into a copyright infringement discussion. For example, in 2004 NamCo America filed a $10 million dollar lawsuit again Lil’ Flip and Sony, alleging that Flip illegally used copyrighted sounds form the video games “Pac-Man” and “Ms. Pac-Man.” This case settled. But it is clear that an artist may want to pay for a license before sampling another artist’s work.
Now take this hypothetical for example. Let’s say Rapper A is on Music Label 1 and releases a song and on that song the beginning of the verse begins with “just trying to make it, represent for my block…” The song becomes an instant classic. Music Label 1 owns half the copyrights in the song while Rapper A owns the other half of the copyrights. But Rapper A leaves Music Label 1 and goes to Music Label 2. Rapper A creates a new single for a new album but he wants to start his new song with his famous words “just trying to make it, represent for my block…” Would Rapper A have to get a license and pay Music Label 1 in order to use a sample from his old song? Depending on the artist’s relationship with his former label, the artist may have to pay licensing fees if he does not own the rights to his song.
In order to get permission or “clearance” to sample another musician’s work, or in this case the musicians own work, the musician may have to first find the current publishers contact information on ASCAP, BMI, SESAC or Limelight by Rightsflow search indexes. Next, the artist will probably be charged a fee by the master owner (of the artist’s song). And finally, the publisher may insist on owning a piece of the copyright, song royalties, and publishing income. In effect rapper A will have to pay someone else to legally sample one of his own older songs. While understanding the importance of intellectual property law, it is strange how copyright laws can get twisted into marginalizing an artist from their own work.
 JAY-Z, What More Can I Say, on THE BLACK ALBUM (Roc-a-Fella/Def Jam 2003).
 Simon Carless—GAMASUTRA, http://www.gamasutra.com/php-bin/news_index.php?story=6353 (last visited October 6, 2011).
 Namco Limited et al v. Weston et al, 1:04cv5164 (S.D.N.Y. June 30, 2004).
 Keith Hatcheck, Sampling Safely—A Primer to Avoiding Lawsuits, http://blog.discmakers.com/2010/08/sampling-safely-a-primer-to-avoiding-lawsuits/ (last visited October 6, 2011).