Who’s sampling what? When is sampling stealing? Who’s stolen sampled samples, and was the sampling stolen stealing? Is anyone actually playing live? Does anyone know what the law is? Does anyone care?

Yes, it’s been a lively November so far for massive, complicated legal battles, PR battles, who-said-who-sampled-what battles, and general sampling messiness. Here’s a quick round-up for those of you who haven’t been able to keep up (understandably).

And we’re going to play a game. I’m going to start talking, and you can see at what point your head starts to spin and you need to go lie down.

Ready?

Here’s the executive summary:

• Justice steal samples and talk about it, because you can’t recognize them.
• US courts said long ago “nowhere to run, nowhere to hide,” to the dismay of even the RIAA.
• German courts, disagreeing with the US and with other German courts, say it don’t mean a thing if you can’t hum along.
• FL Studio turns “Faxing Berlin” Deadmau5 demo content into “Berlin” mostly-the-same demo content and a bunch of people start screaming obscenities at each other and most of us lose interest.
• Justice can’t keep their USB cables from falling out, may have to pirate samples of themselves.
• The Killers (or MTV, more to the point) plagiarize an entire stage.
• My head hurts already.

1. Justice admits they steal samples. French duo Justice admitted to borrowing the likes of 50 Cent without clearance because “they are such short samples no one can recognize them.” (See Beatportal story.)

Of course, the fact that they’re non-recognizable is kind of defeated if you talk about them. In a sane legal world, a completely unrecognizable sample warped until it might as well have come from a field recording of tree frogs wouldn’t be litigation bait. But this is the United States. As I covered way back in early 2005 for Keyboard Magazine, the standing circuit court decision in the US says all sampling is illegal, whether it’s recognizable or not. The elimination of what lawyers call a de minimis (plain English: common sense minimum) standard actually got the RIAA and the plaintiffs concerned about over-litigation. (Yes, you read that right: the ruling was so stupid, the plaintiffs appealed a case they themselves had just won.)

Don’t like it? Move to Germany. No, really.

2. German court says sampling is fine, unless you can whistle the sample. Kraftwerk suffered a legal defeat that made it (via Associated Press) all the way to the front page of CNN.com. It seems a court in Hamburg said what US courts did – no matter how small, sampling is illegal. The highest civil court in Germany says the opposite, but then goes on to be explicit about what constitutes illegal sampling (if un-cleared):

The civil court ruling, however, forbids sampling of a song melody and insists that the sample must be part of a completely new musical work bearing no resemblance to the original.

What’s interesting about this: the length and nature of the sample of Kraftwerk (two seconds of rhythm from “Metal on Metal,” as used un-cleared by Sabrina Setlur) is the same as the sample in the US civil case (two seconds of Funkadelic’s “Get Off Your Ass and Jam” as used in N.W.A.’s “100 Miles and Runnin.”) That’s neither here nor there, except to say if you sample anything in a recognized track, some court somewhere will probably make your life miserable, especially with no international framework to smooth out the difficulties. (Case in point: the US samples had been cleared by N.W.A. – the movie studio No Limit simply forgot to clear the samples in the song for sync rights when they used it in a film.)

3. FL Studio user uses demo loops, meets irate Deadmau5. Thanks to reader Scott Metzger for tipping us off on this one. FL Studio 8 ships, as do many programs, with included loops. It also comes with demo content. An FL 8 user released a track that uses some of that demo content almost wholesale. Now, some people are defending the FL user, because Image-Line says its loops are released royalty free. (They claim they never said that explicitly about demo content, causing confusion.) Image-Line clearly should have been more explicit about this, or this might not have happened. But royalty-free sampling is one thing – plagiarism is another. The user in this case released a track that basically was Deadmau5’s Faxing Berlin. He even copied the name, calling his track “Berlin.” (Smooth.) It’s almost not different enough to count as a remix. I could make some general criticism, except that he’s already been roundly flamed in especially colorful terms by the FL forum users.

I’m still looking for ways of getting a laugh from fellow nerdsters by sneaking some of the roundly-despised Ableton demo track into a set. But, in case your eyes haven’t already glazed over, here are more of the gruesome details of this story.

FL Studio user faces legal action for using built-in samples [MusicRadar, who have more patience for digging through this story than I do]

Don’t use FL Studio loops! [FutureMusic, inadvertently giving users some good advice]

Lesson: software developers, label your loops. (And in all seriousness, it does sound as though Image-Line has lost some of their credibility on this one.) Users, don’t … do this, okay? Just don’t. We can hear you. We can hear those stupid Garage Band loops, too, for crying out loud. Or, alternative names, how about “IMing Hamburg” or “Skyping Munich” or “Snail Mailing Frankfurt”? Maybe change your name to L1v3M0us3 or Deadr4t. I’ll stop. We’re not even done with this damned round-up yet. There’s more.

4. Justice, the Milli Vanilli of Our Time? In case Justice weren’t in trouble enough already telling MTV they’re sampling illegally, they’ve got MPDgate to contend with. Beatportal showed an image of them grooving away with an MPD24 that was, rather inconveniently unplugged. (Their answer: the cable fell out.) Don’t worry, though, Justice fans — Resident Advisor springs into action with a series of photos that would do Oliver Stone’s JFK proud. (There it is – a loose USB cable on the grassy knoll! The screen gone blank, then on again in the Book Depository! Again! Change the angle!)

I’m inclined to give Justice the benefit of the doubt, especially because I care less about this one gig than I do about this outrageous comment by Beatportal’s Terry Church:

Anyone with a shred of understanding of how the music is made knows that it’s near impossible to play electronic music 100% live, unless you have the talent of somebody like The Bays.

Of course, if it were 100% live, it wouldn’t be electronic music. (You could get really literal and claim that you have to be Bobby McFerrin and not even use instruments.) But taking this as I think Terry meant it, uh, Terry, the entire readership of this site has something they’d like to discuss with you.

He also didn’t say “play electronic music 100% live well,” which means for each time one of us has screwed up catastrophically onstage by getting overcomplicated with live sets, we’ve done our bit to demonstrate that we’re not faking it. Unless the USB jack fell out, in which case, no photos!

But yes, I think we can safely say Justice are performing clips they stole from 50 Cent completely live.

5. Killers Plagiarize / Sample an Entire Stage. Okay, forget about two-second samples or even FL Studio demo songs. How about if you showed up in motorcycle helmets and a giant pyramid that looked exactly like Daft Punk? Erm, not in a tongue-in-cheek, parody sort of way.

Etienne de Crecy did a live stage show in France with giant projections mapped to a big cube, as produced by the talented Exyzt crew in Paris. Then, US band The Killers does … exactly the same thing?

Exyzt installation Ripped off by “the Killers”

In fact, the two were so much alike that over at Create Digital Motion, we just assumed it was another Exyzt install job. (Apparently, that isn’t so; even if it were, uh, novelty wears off a bit when you do exactly the same thing with another artist.)

Originality. Try it. It’s amazing.

You know what, by contrast have at those two seconds of rhythm that no one can recognize anyway.

(In fairness, as Wallace points out, MTV is likely to blame here. The Killers were just playing in the cubes and, most likely, were not directly responsible for the stage design.)

How’d you score?

How far did you get before you had to lie down, or strum an original tune on a ukulele? (Wait, damnit, that sounds just like “All the Things You Are.”) Let us know in comments.