Owning the Intangible/Music Sampling

The Exploration of a Solution to Music Sampling That Contributes to the Musical Culture
by Claire Tseng

Introduction

The bass line loops. You feel the reverberations emanating from the stereo. You’re thinking, “Wow, Public Enemy has amazing beats.” But you never stop to consider, did Clyde Stubblefield – “The Funky Drummer” who played with James Brown from 1965 to 1970 – ever get any credit for coming up with this “fat” beat that so many contemporary artists sample? (Frazen & McLeod, 2009) In reality, the average listener would not even consider this question – “[Stubblefield’s] name never appears on any of those compositional credits, his name is not part of the legal legacy of all of those great tunes he played on, he doesn’t get royalties.” (Jeff Chang, Frazen & McLeod, 2009)

Is this right? What with all the propaganda and litigations going on, more of the credit and money must be going to the author-creators. However, the American copyright laws have, for the longest time, been negligent of these original creators:

Copyright law in the United States is primarily concerned with protecting the pecuniary interests of copyright owners rather than the moral rights of author-creators. (Reilly, 2008)

With this kind of legal background – what are we protecting exactly? Not the rights of the original creator, apparently. As a result, neither are we focusing on the ethics of protecting these creative works. In fact, copyright laws are laws concerned with the economic factors; they are in existence to give an economic benefit those who own the copyright (Patry, 2009). This is further seen in the exploitation of the legal system, even in other areas of the entertainment industry, where corporations come down hard on people and pressure them into settling outside of court to avoid the hassle of going to court. ("Law professor fires," 2008)

What we need is a system that gives due credit to those author-artists who put the effort into creating something and releasing it to the public domain; a system that lets the Clyde Stubblefields be known; a system that operates based on more than the economic gains. And this will call for a revolution.

Current Approaches

Section 1101 in United States Copyright Laws, that currently prohibits music sampling, begins with:

(a) Anyone who, without the consent of the performer or performers involved

This section highlights the original intentions of the Copyright Laws – note that courses of actions are to be taken if the “performer or performers involved” feel as if their copyright had been infringed upon.

In the 1991 case Grand Upright Music, Ltd. v Warner Bros. Records Inc, Biz Markie, under Warner Bros. Records, was sued by Grand Upright Music Ltd and Gilbert O’Sullivan for sampling the latter without permission. Gilbert O’Sullivan served as a witness for this case and showed significant emotional distress for his work being used in such a way that does not comply with the context in which he wanted people to see his music. At the end of the case, Judge Kevin Duffy began his opinion with, “Thou shalt not steal.” (“Grand upright v. warner,” N.D.) and proceeded on to condemn sampling without license as theft. This was the landmark case that mandated artists and publishers to clear all their samples before any publications.

Fast forward fourteen years, in 2005, Bridgeport Music, Inc. v Dimension Films is the case in question. In this case, N.W.A sampled a two second guitar chord from Funkadelic (Bridgeport), lowered the pitch and looped it five times. The first ruling stated that this was not in violation of any copyright laws. However, on appeal, a very dissimilar ruling was passed. This time the judge, Ralph Guy, began his opinion with, “Get a license or do not sample. We do not see this as stifling creativity in any significant way.” (“Bridgeport music v. dimension films, et al,” N.D.)

But it is stifling creativity in unnecessary ways.

The Copyright Laws were passed at first to ensure that author-artists were protected enough so that they would share their creations and expressions of particular ideas with the public (Patry, 2009). This ensures the public good as more author-artists would then share their original representations and the people would then benefit from seeing a wide variety of expressions, perhaps through such exposure becomes, in turn, inspired to create and to add to the public domain as well. Such a cycle not only adds to the public library of resources, but also the culture of the nation or the age.

However, our economic copyright laws have evolved (or devolved, depending on your perspective) to put the originally protected “Little Guys,” referring to the author-artists, in a position of less importance than their “Big Daddies,” or their record labels (Gaylor, Cross, Thwin, Din, & Brochner, 2008). Interestingly enough, record labels only began hounding cases of music sampling in the hip-hop genre after the genre received more exposure, and thus more monetary gains (Frazen & McLeod, 2009).

The Copyright Laws are no longer relevant enough to carry out its original intentions. In fact, it can almost be said that the section is open to abuse, no longer built to protect the creative author-artists.

Our current copyright laws are not enough to encourage our rapidly growing culture to flourish, especially not at its current pace with the technological booms, and it is difficult for such a revolution to come by as to completely alter the current laws for the better. But, at the very least, our laws must not stifle the probable future changes that our culture will inevitably experience. Otherwise, the laws are counterproductive and thus rendered invalid.

Perspectives – Sampling and Sampled Artists

When we talk about sampling, we must discuss the hip-hop genre in greater detail – after all, their musical culture fueled the beginnings of the controversy. We must also explore the hip-hop genre’s perspective to fully understand the basis of their actions before we deem them wrong:

Sampling is a way of paying homage to older artists; it is also a kind of musical archeology, an archaeology that is significant when it is applied to black music which, as a result of music industry fostered conditions, has a notoriously short shelf life. (McLeod, 2001)

From the self-evident tone, we can see that there is obviously an unsaid agreement that binds the hip-hop genre and its artists together. They understand that the purpose of sampling is to further individual work, and in turn the entire genre’s sound, and not to take what is not theirs for themselves.

Furthermore, one of the arguments against sampling is that the sampling artist seems to be simply taking what another artist has perfected and adding nothing to it. Theft. However, the sampling artists offer a different perspective A single sample may take hours upon hours of listening to find, and that sample may just be a three second section that’s put into a new song that gives the listeners a different perspective on the sampled section (Frazen & McLeod, 2009). Sampling is not as simple as some may think and in no way is it uncreative. The multitudes of author-artists adding on to a single sample with their own music should really be seen as a great cultural collaboration.

The current copyright laws that limit samples by mandating the clearing and licensing of any samples on any given track of a CD about to be published not only restricts the creativity of author-artists, but also stifles the growth of our culture and hinders our potential.

Yes, we have evolved under the suffocating pressure with different outlets such as distorting the samples so much, the record labels no longer can recognize the sound, as best described by Q-bert, a member of the turntablist crew Invisibl Skratch Piklz, “if you can make it not theirs, it’s yours.” (McLeod, 2001) Or live instrumentalists were hired to recreate the sounds that were unable to be cleared. But should these actions be necessary?

In Stubblefield’s interview on Copyright Criminals, the DVD released in 2009, he stated that he was not paid a dime and said that he was surprised when he was informed that he was the world’s most sampled drummer. However, he was extremely clear that he was not in the business for the money. He was flattered that people liked his drum riffs so much, but he was the most visibly emotional when he spoke about never getting thanked, “not once!” (Clyde Stubblefield, Frazen & McLeod, 2009)

Now it seems that the real problem lies not in the money the corporation brings in via litigation, but with due credit giving. Therefore, yes, there had to be a time where the law cracked down on sampling. There needed to be a time where people published their work containing samples by distorting the sample, recreating the sample with live instruments, clearing the samples or risking a lawsuit. People needed to learn the basic lesson that paying homage to an artist is a good thing, but that others who are not enthusiasts cannot see this homage unless the sampled artists are named. But this time does not need to last. Its purpose has been served and now we are ready to move on.

The Solution We Are Looking For

There is a gap.

There is a cleft between what our current copyright laws suggest as solutions and a solution that will contribute to our musical culture. What we need to recognize is that there is a fundamental difference between the actual musical, creative culture and the culture that our contemporary copyright laws is building.

The underlying difference is the other side’s perspective. The copyright laws are protecting the economic benefits of the copyright owners; whereas Tthe creative culture is bustling with free flowing ideas with author-artists willing to share and cries out for the notion of moral rights.

Moral rights is the author-artist’s ability to “control the eventual fate of their works.” (Rosenblatt, 1998) The originators get the right to decide what they want, or do not want, to have done to their art. The artists’ moral rights to his or her work extends beyond simply economic transactions – they will always, on this level, own their creation. This will also benefit our culture as more cultural heritages fall into the public domain quicker as the protection for the art piece ends with the death of the author-creator.

When moral rights is in control, the “Little Guys” will be back on top. An example of this was when Radiohead decided to publish their tracks on the Internet, and Amplive remixed the album soon after and uploaded the remixed album onto the web for free. He was hunted down with a cease and desist letter a day after the upload. Radiohead was not responsible for the cease and desist letter – their label was. Radiohead, in the end, convinced their label to drop the case and Amplive was not prosecuted (Gaylor, Cross, Thwin, Din, & Brochner, 2008).

However, we cannot simply ignore the amount of time and money that record labels put into their projects. Some of the cases may seem to only serve to generate revenue, as in the example of Radiohead’s label, but we must also look at cases where the corporations really do deserve compensation for their input. This side of the puzzle must be addressed with a compromise.

Yet this compromise must not allow us to make the same mistakes we have already spent decades making. Ultimately, moral rights, that allow the artists to make the final call on whether to pursue litigation or not, should outweigh the original copyright laws that allows litigation without the permission of the original author-creator. The compromise will come from when a lawsuit does ensue – the copyright owners and the author-creator can split the compensation 70%-30%, with the copyright owners reaping the majority. This would be as close to fair as we can get after our revolution because the copyright owners will get their share of the money, and the 30% will be the rightful contribution to the author-creators who originally contributed their works of art, and without whom, the copyright owners will have nothing to reap anyway. There should also be an option for author-creators who would like to simply give permission for their label to pursue a lawsuit, with no monetary gains in mind to forfeit the 30%.

Finally, it is important to remember that copyright in the music industry is not dead. Moral rights and copyrights are not mutually exclusive. What we are headed for, hopefully, is a happy medium, where the author-creator has the final say in how they want their art treated, and where copyright owners can still pursue litigations with the permission of the author-creators (Kwall, 2010). With a contract signed between an artist and a record label, the artist may agree to not enforce their moral rights, or they may need to go through more legal processes to assert their moral rights, before they can be enforced ("Moral rights (copyright law)," 2010).

So, when moral rights is enforced, the individual or individuals who were involved with the actual deliverance of the performance have the say in what they want done with their work – and wouldn’t that be the ideal situation? When those who were meant to have the right, have the right? With the creative author-artist in control of the fate of his or her art instead of a relatively more distant corporation, our culture will have the chance to evolve at a pace that’s more parallel to the pace at which the technology is moving.

Conclusion

For decades, our copyright laws have merely sufficed. But now they have the option of being refurbished. In the case of music sampling, the corporations used to have a much greater say than the author-artists who create the art that we so enjoy, and, because of that, we have been gratuitously limited.

Music sampling is a way of expression as well as any other kind of creation. It is not simply the taking of someone else’s idea. The amount of time taken into finding the sample, sometimes an extremely short one, the possible distortions, and the new context in which it is put all should generate new respect for this new technique. A different perspective is added to a sample as it is put into a different track – a new light in which to see the old.

It is also important to keep in mind the reason behind sampling. Especially in the hip-hop genre, one can see sampling as a way of paying homage to the sampled artist because their creation was so timeless and “fat” that it just does not compare to what we have nowadays (Frazen & McLeod. 2009). The intentions are not to steal or to deface. In fact, the restrictions on sampling have forced artists to distort the sample they want to honor and transfigure it into something completely unrecognizable, thus making the laws seem almost counterproductive.

However, the restrictions were not without merit. They helped us realize more ways that we can create – through distortion or live music recreation. Also, they reminded us that giving due credit is a great part of paying homage. But these lessons have been learned, and now that we are all the wiser, we can then move forward and create with greater ferocity and velocity with less boundaries and more creativity.

And so we come to our hopeful conclusion: Moral rights. With this, we can return the creative power to the original author-creators. Yes, there is the chance that some artists may choose to opt out on having their tracks sampled, and yes, there are going to artists that want monetary compensation. But at the same time, yes, we can, as a generation, afford that. That is a small price to pay to have the say re-instilled upon our original creative forces.

When those who were meant to have to right, have the right.

Although the corporations are, too, not without merit. The time and money that they spend on publishing the music and promoting the artist cannot go ignored. So we have reached a compromise. Author-creators may agree to not enforce their moral rights, and that if they are to assert their rights, there are legal steps that must be taken before their moral rights are enforced. Finally, when a lawsuit is in question, the author-creator has the final say in whether or not to pursue the litigation. There is a split of 70%-30% of the monetary compensation between the copyright holder and the moral rights holder, with the 70% going to the copyrights holder. There is also an alternative for any author-creators who simply wish to authorize the copyright holder to pursue legal action and want no monetary gains in return, with a forfeit.

With moral rights, a revolution has arrived. We can create a freer culture and in turn, help our current blossoming musical generation flourish. With the power returned to the original creators of the art that were for so long controlled by the corporations behind their distribution, we can say that our culture is in better hands. Finally, with the lessons from the past and the freedom of the future, our generation can explode with renewed creativity in the music realm and take us to a new level of experience.

Hopefully, this revolution spreads, just as it had from the Visual Artists Rights Act, that were the origins of moral rights in the United States, to the music industry (Kwall, 2010). This gloriously infectious notion of giving the original author-creators the say in what they want done to their art will unfurl and circulate until all aspects of the art will allow for this relationship between the creator and his or her “brain child.” Not only will this further encourage new creations, with the combination of moral rights and copyrights, it will also serve to contribute to more than just our musical culture – but to the culture of our generation.

References

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Copyrights Act of 1947. Sound Recordings and Music Videos §1101.