Here's an interesting interview regarding the early days of sampling for Hip Hop, and how copyright laws have changed everything.
The most interesting thing to me is that it's now cheaper to rip off a single longer loop than it is to sample a bunch of little hits, process them and make a new sound in which the original can't be recognized. So much for creativity...
They made some great points about the law not dealing with the creative aspect and how that has significantly changed the sound of the music....which is one of the most frustrating things. Of course, anyone can still make Hip-Hop like that and release it, but you can't make a business or a profit like that. The profits from those early records were eaten up by license fees too. It is more about the viability of sampling records and making a profitable record and livelihood from it....not the creative freedom aspect. It's worth noting that no one ever went to jail sampling something illegally.
However, there were some incorrect things they said too.
The length of a sample and its significance does play a major part in how much it costs to license. So it's usually far MORE expensive to sample a longer loop or phrase and build your track around it. The examples they sited may have only had one person to deal with, but often those types of "full musical loop" samples cost a fortune and often the artist has to give away everything to the person sampled.
Famous case in point: Puff Daddy had to give one HUNDRED percent of his royalties to Sting for sampling Every Breath You Take for his Biggie Tribute hit. That's a stiff price to pay indeed!
Tiny samples are often very inexpensive to license....especially if they are from obscure records.
A lot of artists are doing heavily creative sampling of records still....but they are more on the British/European end on the music world. Hip-Hop itself is such a big business now, that record companies make their Rap artists sign contracts that they must get every single noise cleared....so it affects a group like Public Enemy more than it would someone like Squarepusher....who probably pays nothing to license his samples....even though they work in similar ways.
Also, Rap artists and labels kind of shot themselves in the foot by being so careless about their clearing of samples in the beginning of Hip-Hop.
Hip-Hop artists need to acknowledge the reality that the copyright laws never changed....they were always in violation of the SR law that came into effect in 1974 (far before the hip-hop sampling craze of the late 80's/90's) and it just took a while for the original copyright owners to realize what was happening and to take action. There were some really egregious examples of sampling that had been done with no compensation or credit to the original artists/copyright owners too.
Like I've said before, it may not be justice on a moral/creative level, but the law is a simple one: if you use someone's copyrighted recording in your own and reproduce/distribute it -you'll likely have trouble if you get caught.
If the law had to be based on some standard of creativity, it would never really work...since creativity is such a subjective thing. People would argue over what was and was not allowable creatively forever. It would be a failure in the same ways that the Hayes Code was or the current Movie Ratings system often is....except the concequences would be far more severe.
Ultimately, the record companies should have known better, since that's really their business after all. It's more the fault of the labels that it is the artists they let it get so out of hand and stupid. Guys like Shocklee are really genius in what they do....hopefully some day the laws will catch up to the concept of sampling as an art form....but it might be awhile because not everyone is a Hank Schocklee, and many more are simple needledroppers looking for a fast way to make a hit by sampling someone else's creativity.
A complex and interesting subject for sure....there's many sides to it.