Glossed over in the video, and in the discussion here so far, is that even when a court rules a derivative work to infringe a copyright, there's no need to obtain a license so long as the derivative work is "creative enough" to qualify as fair use under US copyright law (and similarly in many other jurisdictions). So while it's true that the Sixth Circuit ruled in 2005 [1] that unlicensed samples of any duration constitute copyright infringement, what's left unsaid is that samples still may be used without bothering about licenses so long as they're used as part of a sufficiently creative new song.

But what's "creative enough"? Ah, there's the rub.

The real story here is how copyright owners are able to abuse a quirk of the law in order to strong-arm musicians into paying licensing fees, even when everybody knows full well there's probably no legal obligation to pay them. "Sample trolls" exist precisely because fair use is only a defense to litigation, which means it can only be invoked in the course of a lawsuit. So there's no sure way to know whether you need to license your use of a sample until you get sued, you claim fair use, and a judge tells you whether you should have (past tense) bought a license or not. It's much cheaper, of course, just to pay for a license up front and be done with it.

Unfortunately, its hard to imagine a way to resolve this conundrum if copyright holders are still to be granted monopolies over derivative works [2]. Consider the canonical law-school example of a derivative work, Marcel Duchamp's goteed Mona Lisa (LHOOQ) [3]. If Leonardo had been around to defend his copyright, would Marcel have been able successfully to invoke the fair-use defense? It all depends on how creative the judge thinks it is to give old Lisa a mustache. Reasonable judges may disagree.

And then consider Andy Warhol's colorful posterized Mona Lisa silkscreens, or Kazimir Malevich's collage-cum-painting Composition with Mona Lisa, which incorporates a small copy of Leonardo's painting. Even if you thought Marcel's work was a blatant rip-off, you might think Andy's or Kazimir's is fair use. (Then there's Salvador Dali's Self Portrait as Mona Lisa.) Point is, it's impossible to draw a bright line on fair use, even for a particular work.

But that's not to say there's no bright line anywhere. When it comes to recorded music, one such line is whether a work actually incorporates a copy of the recording. If it's not a sample, but a new recording that happens to sound the same, there's no issue. (A ruling that duplicating any portion of a musical composition constitutes infringement is nigh unimaginable.) So just go record your own version of the beat you want to use and there's no issue.

1: See http://en.wikipedia.org/wiki/Bridgeport_Music,_Inc._v._Dimen... ; a good write-up on the case is at http://www.ivanhoffman.com/fairusemusic.html .

2: And maybe they shouldn't be. But then the debate would probably turn back to what constitutes a derivative work.

3: This and other riffs on the Mona Lisa are shown at http://www.aiwaz.net/gallery/mona-lisa-as-modern-lisa/gc234 .

By the way, for those of you who doubt the ubiquity and permutivity of the Amen Break in today's hip-hop, here are a few tracks I picked out in a quick once-over of two albums by The Roots. From almost-a-sample to you-gotta-be-paying-attention, these all use the Amen Break:

- "Rolling with Heat" (slowed down, but otherwise almost unchanged)

- "Thought @ Work" (syncopated by dropping a beat)

- "Duck Down!" (very slow, syncopated)

- "I Don't Care" (syncopated)

- "Web" (very syncopated)

- "Boom!" (very syncopated)

If you can hear the signature "bum bum BAH, buh-DUM buh-DUM" in those last few, you can see why people call it the most ubiquitous break. It truly is all over the place, albeit often in heavily manipulated form.