by LUKE BAUMGARTEN & r & & r & Upper Management & r & & r & Slate.com ran an essay by Anthony Falzone (Stanford Law lecturer, executive director of the university's Fair Use Project) asking why hip-hop mogul Sean "Diddy" Combs hasn't used his extraordinary wealth and numerous run-ins with copyright law to mount a serious defense of sampling in hip-hop. Falzone thinks rappers might only be a court ruling or two away from not only avoiding the lawsuits that come from not paying royalties to artists you sample, but not needing to pay royalties at all.
There's this doctrine in copyright law that says, briefly (and simplistically -- it's incredibly complicated stuff) that someone can use bits and pieces of existing art to create new art for free so long as: the pieces aren't wholesale copies of big, easily recognizable chunks of the original works and the new work doesn't compete against or devalue the old work. It's called Fair Use. Media outlets employ it, for example, to quote dialogue in movie reviews.
The reason no judge has ever ruled that rap samples -- often only four or five notes of a single horn or bass part -- are fair use is that no high-powered rap lawyer has ever made the argument.
Diddy's to blame for that, says Falzone, along with all the other rapper/moguls who have tons of money and have been sued for a hunk of that cheese from artists they've sampled. The question, then, he asks, is why Diddy isn't fighting the good fight.
Falzone's gotta know the answer to that, though. Diddy's Bad Boy Entertainment is owned by Warner Music. 50 was given his label by Interscope. Since Def Jam bought half of Roc-A-Fella, Jay-Z's been steadily climbing the corporate ladder. Point is, though they're the biggest names in the rap world, they're still upper management in these massive companies that have a huge stake in the revenue generated by sampling. Until an independent rapper with a lot of money to spend on a long-shot legal cause comes around, don't expect to hear sampling and fair use in the same sentence.
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