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Posts Tagged ‘hip hop’

Evans chapter on copyright appears in ‘Hip Hop and The Law’ anthology pub’d by Carolina Academic Press

July 26, 2015 Leave a comment

I am excited to announce the official publication of the anthology, Hip Hop & the Law, edited by the late Pamela Bridgewater (formerly a professor at American University School of Law), andré douglas pond cummings (Vice Dean and Professor of Law at Indiana Tech Law School), and Donald F. Tibbs (Associate Professor at the Drexel University School of Law).

I am honored that my contribution,  Sampling, Looping and Mashing … Oh My! How Hip Hop Music is Scratching More Than the Surface of Copyright Law“, appears in this formidable collection of essential reflections by many of today’s leading critical thinkers. From professors, to practitioners, to creatives, Hip Hop and the Law curates a host of diverse voices to analyze and assess the interdisciplinary intersection of American jurisprudence and hip hop music and culture.

bridgewater coverWhat is important to understanding American law? What is important to understanding hip hop? Wide swaths of renowned academics, practitioners, commentators, and performance artists have answered these two questions independently. And although understanding both depends upon the same intellectual enterprise, textual analysis of narrative storytelling, somehow their intersection has escaped critical reflection.

Hip Hop and the Law merges the two cultural giants of law and rap music and demonstrates their relationship at the convergence of Legal Consciousness, Politics, Hip Hop Studies, and American Law.

No matter what your role or level of experience with law or hip hop, this book is a sound resource for learning, discussing, and teaching the nuances of their relationship. Topics include Critical Race Theory, Crime and Justice, Mass Incarceration, Gender, and American Law: including Corporate Law, Intellectual Property, Constitutional Law, and Real Property Law.

About Hip Hop & the Law published by Carolina Academic Press

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Evans’ Copyright & Music Sampling article published by Fordham IPJ

July 21, 2011 Leave a comment

Professor Evans’ article Sampling, Looping & Mashing … OH MY! How Hip-Hop is Scratching More Than the Surface of Copyright Law was recently published by the Fordham Intellectual Property, Media & Entertainment Law Journal. Use the link below to download the PDF.

For decades hip hop producers have relied on the innovative use of existing recordings (most of which are protected by copyright), to create completely new works. Specifically, cuttin’ and scratchin’, digital sampling, looping and (most recently) mashing are all methods of creating music and are all integral parts of the hip hop music aesthetic. Collectively these creative processes are the hallmark of the type of innovation and creativity born out of the hip hop music tradition.

Hip hop artists and producers from Chuck D, Queen Latifah, A Tribe Called Quest and M.C. Lyte to The RZA, Missy Elliott, Dangermouse and Jay Z have employed the sampler more as a musical instrument or palette than a tool of expediency or theft. But when done without the permission of the borrowed work’s copyright holder, sampling is at odds with copyright law. Unfortunately, copyright fails to acknowledge the historical role, informal norms and value of borrowing, cumulative creation and citation in music.

Additionally, different copyright infringement standards are applied to the two types of music copyright (the musical composition and sound recording). Further, and arguably more troubling, different infringement standards are being applied by the circuits to sound recording infringement cases resulting in a split in the circuits. The per se infringement rule articulated in the leading digital sampling case, Bridgeport v. Dimension Films, as compared to a recent decision with analogous facts but an opposite outcome under a traditional infringement analysis in Saregama India Ltd. v.Mosley, is but one stark example.

This article examines the impact of copyright law on music creation both historically and currently. It highlights hip hop music as an example of a genre significantly and negatively impacted by 1) the per se infringement rule applied in some instances to cases involving unauthorized sampling of sound recordings; and 2) traditional (and arguably erroneous) assumptions in copyright law and policy of independent creation and Romantic authorship.

Read the article abstract & download the full article

Article on Hip Hop & Copyright Law Receives Nod from TechDirt.com

November 9, 2010 Leave a comment

On Monday, November 8th, TechDirt.com reviewed my law review article titled Sampling, Looping & Mashing … Oh My! How Hip Hop Music is Scratching More Than the Surface of Copyright Law in its post “Time To Remix Copyright Law: The Hip Hop Case Study,” by TechDirt.com’s Mike Masnik.

In the article, I argue that copyright law is ill-suited when applied to music generally, and genres like hip hop in particular simply because of the way music is created. Outfits like TechDirt.com have been arguing the same thing for decades and is a leader in the “it’s just how music is made” camp to reform copyright laws to optimize benefits for all parties involved.

My article will appear in The Fordham Intellectual Property, Media & Entertainment Law Journal’s Spring 2011 issue. Fordham’s journal is the number one ranked entertainment, arts and sports law journal, and the number sixth ranked intellectual property law journal.  IPLJ articles have been read into the Congressional Record, as well as cited in the Court of Appeals for the Second Circuit and in amicus briefs to the U.S. Supreme Court as well as cited recently by the high court itself in the Bilski decision.

Founded in 1997 by Floor64 founder Mike Masnick and then growing into a group blogging effort, the Techdirt blog uses a proven economic framework to analyze and offer insight into news stories about changes in government policy, technology and legal issues that affect companies ability to innovate and grow.

Article About Music Copyright & Hip Hop Makes SSRN’s Top Ten Download List!

October 23, 2010 Leave a comment

Sampling, Looping, and Mashing … Oh My!: How Hip Hop Music is Scratching More Than the Surface of Copyright Law

September 7, 2010 Leave a comment

Just posted my latest article at BePress titled Sampling, Looping, and Mashing … Oh My!: How Hip Hop Music is Scratching More Than the Surface of Copyright Law.

Abstract

This article examines the deleterious impact of copyright law on music creation. It highlights hip hop music as an example of a genre significantly and negatively impacted by 1) the per se infringement rule applied in some instances to cases involving unauthorized sampling of sound recordings; and 2) traditional (and arguably erroneous) assumptions in copyright law and policy of independent creation and Romantic authorship.

For decades hip hop producers have relied on the innovative use of existing recordings (most of which are protected by copyright), to create completely new works. Specifically, cuttin’ and scratchin’, digital sampling, looping and (most recently) mashing are all methods of creating music and are all integral parts of the hip hop music aesthetic. Collectively these creative processes are the hallmark of the type of innovation and creativity born out of the hip hop music tradition. And hip hop artists and producers from Chuck D, Queen Latifah, A Tribe Called Quest and M.C. Lyte to The RZA, Missy Elliott, Dangermouse and Jay Z have employed the sampler more as a musical instrument or palette than a tool of expediency or theft. But when done without the permission of the borrowed work’s copyright holder, sampling is at odds with copyright law. Unfortunately, copyright fails to acknowledge the historical role, informal norms and value of borrowing, cumulative creation and citation in music.

Additionally, different copyright infringement standards are applied to the two types of music copyright (the musical composition and sound recording). Further, and arguably more troubling, different infringement standards are being applied by the circuits to sound recording infringement cases resulting in a split in the circuits. The per se infringement rule articulated in the leading digital sampling case, Bridgeport v. Dimension Films (410 F.3d 792), as compared to a recent decision with analogous facts but an opposite outcome under a traditional infringement analysis in Saregama India Ltd. v.Mosley (687 F. Supp. 2d 1325), is but one poignant example.

Courts in the Sixth Circuit apply a per se infringement standard when a defendant copies any part of a sound recording. By contrast, courts in the Eleventh Circuit consider substantial similarity and the de minimis defense traditionally applied in all infringement cases. These differences, in turn, have lead to unclear judicial definitions, distinctions and interpretations for the role of substantial similarity and what constitutes a de minimis use, a fair use, and a derivative work. The resulting incongruent decisions reflect an inconsistent application of federal law. This inconsistency threatens to diminish both the quality and quantity of second-generation cumulative musical works. Accordingly, copyright law’s fragmented application is proving troublesome for the music industry, generally, and for music genres like hip hop in particular.

Ultimately, this article suggests that music copyright reform is needed and, perhaps, inevitable as technology continues to outpace and stress the law just as the law continues to stress and under-perform in balancing the rights/access continuum. To that end, this article posits that any fix should sample patent to remix copyright. By this I mean music copyright reform should consider and incorporate policies supporting reverse engineering in the patent context, which encourages and values cumulative creation to bolster innovation.

Intellectual property should be most narrowly tailored when innovation in the field tends to be highly cumulative. Such is the case in the creation of music. The need for narrowly-tailored intellectual property laws is especially valid in light of the essential role to both of access to first-generation works and a firmly established custom of borrowing in the creative process.

Therefore, copyright law must be remixed to achieve an optimal balance between a copyright holder’s exclusive rights and the legal space a second generation innovator needs to build upon existing works in order to create new ones in cumulative creative genres like music.

Download the draft of Sampling, Looping, and Mashing … Oh My!: How Hip Hop Music is Scratching More Than the Surface of Copyright Law by Tonya M. Evans

Categories: Article, Copyright Tags: , ,

Professor Evans to Present at Berkeley IP Conference

July 13, 2010 Leave a comment

Recently Professor Tonya Evans accepted an invitation to present her work-in-progress, Sampling, Looping and Mashing … Oh My!: How Hip hop Music is Scratching More Than the Surface of Copyright Law, at the Intellectual Property Scholars Conference to be held at the UC Berkeley School of Law on August 12th and 13th, 2010.

In her article, Professor Evans notes that although the United States Constitution directs Congress to regulate copyright and patent laws ultimately to serve human values and social ends by promoting innovation and creativity, copyright law as currently applied to the medium of music, both the performance embodied in a sound recording and the underlying musical composition itself, fails to meet that constitutional directive. This point, argues Professor Evans, is illustrated quite clearly in the case of a musical genre like “hip hop” that for decades has relied on the innovative use of existing recordings (most of which are protected by copyright), to create completely new works.

The annual conference is co-sponsored by the Berkeley Center for Law and Technology, Berkeley Law School; the Intellectual Property Program, Benjamin N. Cardozo School of Law at Yeshiva University; the Center for Intellectual Property Law and Information Technology, DePaul University College of Law; and the Stanford Program in Law, Science & Technology, Stanford Law School.

The IP Scholars Conference brings together intellectual property scholars to present their works-in-progress and to listen and discuss others’ works. The format of the conference is designed to facilitate open discussion and to help scholars hone their ideas.

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