Copyright Law Robs Us of Political and Social Power of Sampling

Sampling is a political and social act. Requiring permission and a license -- particularly without a fair mechanism to facilitate that -- is a form of oppression. (Photo by John R. Southern)
Sampling is a political and social act. Requiring permission and a license without a fair mechanism to facilitate that is a form of oppression. (Photo by John R. Southern)

It is difficult to name a court decision that has had a greater negative impact on recorded music than Bridgeport Music, Inc. v. Dimension Film. The de minimis doctrine, with respect to digital sampling of sound recordings, effectively disappeared after the court’s decision, summarized as: “Get a license or do not sample. We do not see this as stifling creativity in any significant way.” From the perspective of culture theory, the court could not have made a more erroneous statement.

At the time, there was abundant social and political energy associated with hip hop, a genre based on sampling. Hip hop was and still remains an important social and political institution. The appropriation of mainstream culture by the “underground” through digital sampling was a direct, progressive response to disempowerment among the hip hop community. Bridgeport crushed this culture overnight. Samples became the province of the minority of rights holders who owned songs of licensable value, and the minority of musicians and labels who could afford their licensing fees.

Arguments in support of Bridgeport primarily appeal to labor/desert and personhood theories of copyright. Mandating all samples be licensed decimated their widespread use and was a failure from the perspective of cultural theory. But under theories of fairness and personhood, it’s a small price to pay to ensure the original author is compensated, remaining in control of granting or denying permission to sample.

Samples chosen purely for their aesthetic quality are the easiest samples to recreate in a studio, at far less cost than licensing. This is often invoked to defend Bridgeport, but it misses a critical cultural point. Popular songs carry the greatest political and social meaning. Generally speaking, the more popular the song sampled, the larger the audience with whom the meaning will resonate.

In practice, many musicians have transferred their rights to a record label by the time they achieve popularity that warrants being sampled. Particularly with less established artists, a label will avoid the risk of investing in a sampling license when a musician’s sales potential is unproven. Most unsigned musicians can’t afford to license samples at all. This is a chilling of creativity for dubious rewards.

We are compensating yesterday’s musician by erecting a prohibitively expensive barrier of creative entry for today’s musicians. It seems rather contradictory to appeal to the labor/desert theory by raising the cost and bureaucracy of entering the market.

Hip hop adapted and continues to evolve as a central part of our musical culture, but its development as an art form was unquestionably arrested. The near-disappearance of unauthorized digital sampling between 2005 and 2010 has been interrupted by an explosion of creativity. In much the same way hip hop did 30 years ago, mashups and remixes rapidly emerged over the last few years, challenging the sound recording status quo and facing an arrested development of their own.

Today’s sampling musicians lack the history of commercial success hip hop enjoyed. In a way, they don’t know what they’re missing. They feel more entitled to appropriating sound recordings, and less entitled to compensation. They’re participating in what Lawrence Lessig calls a “read-write” culture, similar to the culture of amateur performance that existed prior to the invention of the phonograph and the industrial commodification of music. They’re involved not just in a semiotic democracy, but a new culture of creative consumption that’s productive, not passive. This has numerous implications, not the least of which is that less labor/desert incentives and personhood assurances are needed to stimulate creativity — it now happens as a corollary of consumption.

Nothing changed in the law to enable this trend, it’s simply another case of technology racing forward. Songs can now be produced from samples on a tablet in under an hour. Music tastes and popular songs change in weeks, not years. Culture moves at speeds that copyright law can’t keep up with anymore. This creates large financial challenges for “professional” musicians, who are rapidly being offset by an exponentially larger pool of amateur and “semi-pro” musicians.

We must also acknowledge that sound recordings are themselves a platform for music discovery. Sampling can be a way for fans to discover new artists. Having one’s sample appear in the remix of a famous mashup artist can generate huge exposure for an emerging artist. Licensing chills this kind of spontaneous creative reuse, and if one demanded compensation, one may not be sampled. Well-established musicians whose music has demonstrated value do not share the same view, but from a welfare and culture perspective, the greater good is best served by free appropriation.

This is a messy situation, and reform to copyright is needed. A compulsory license for the sampling of sound recordings seems an appropriate solution. The specific mechanisms by which such a license would function are surely more complicated and contentious than, for example, compulsory performance licenses. However, they would be based on well-established legal precedents.

The deadweight loss experienced by our culture when the cost of licensing samples skyrocketed from zero to thousands of dollars was staggering. Cultural theory guides us toward compulsory licensing as a way to foster a more diverse, democratic and equal creative landscape. It encourages us to make works more freely available for creative reuse so that the next generation of musicians can make the next generation of music, while sustaining their livelihoods long enough to pass on their musical traditions.

Creative Commons offers a fine stopgap solution, allowing artists to license music such that it can be freely shared and remixed, yet protected against unauthorized commercial use. As access to music becomes free or nearly free, musicians will need to rely on revenue streams and methods of discovery outside of traditional music retail settings. Today it is more important to live the creative life than achieve the American dream with all the labor/desert it entails. I think that represents the triumph of culture and cultural theory over the increasingly anachronistic theories of copyright which address pre-Digital Age creativity.

Compositions with Samples: A Music Discovery Market in Arrested Development

Girl Talk producing live. Photo by IllaDeuce. CC-BY-SA
Girl Talk producing live. Photo by IllaDeuce. CC-BY-SA

When you can’t sample something, you can’t discover you like it, and you won’t buy it.

Like many suburban white kids, my first exposure to hip hop was when Run-D.M.C. teamed up with Aerosmith on “Walk This Way”.

That collaboration was not just how I discovered Run-D.M.C., it was how I discovered the whole genre of hip hop. 2 Live Crew, Beastie Boys, NWA, Public Enemy, DJ Jazzy Jeff & The Fresh Prince and LL Cool J would soon follow, along with lots of awful hip-hop/teen pop crossovers I needn’t mention. For someone straight outta the Catskills, my hip hop roots run deep.

Was Run-D.M.C. showcasing its sound through Aerosmith’s composition? Or was Aerosmith showcasing its sound through Run-D.M.C.’s composition?

The answer, of course, is both. In this case, it was as much musical chemistry as calculated salesmanship. Both bands were rocking each other’s compositions as a platform for greater exposure. Run-D.M.C. appealed to fans of hair rock, and Aerosmith suddenly seemed relevant again, saving their music career. The whole thing was a marketing plot orchestrated by bearded studio magician Rick Rubin, who carefully¬†arranged the profitable pairing in advance.

As any hip hop fan knows, creative appropriation of sound recordings — samples — are a fundamental building block of the genre. “Walk This Way” was staged, but most samples at the time were taken without permission. Hip hop had not yet begun to emerge as the commercial powerhouse it would soon become. It wasn’t until Bridgeport Music, Inc. v. Dimension Films that copyright law was brought down like a hammer against unauthorized sampling, and the practice suddenly became very expensive if not impossible.

Hip hop pre-Bridgeport was a revelation because it was a genre of music based on exposing people to other artists and genres of music through the actual composition. It wasn’t a composition as we traditionally thought of — sheet music with lyrics. Instead of notes, there were bits of sound recordings, with compositions contained within. Songs were transformed through sampling into new compositions that showcased artists and genres in a new context.

Hip hop wasn’t just a music genre, it was a music discovery platform.

The mashups, remixes and EDM of today are taking the mantle of genre-as-music-discovery vacated by hip hop after Bridgeport. I would argue that these genres are the natural progression hip hop would have taken had the creative act known as “sampling” not been stagnated by an unjust court ruling.

Today, you can discover several artists or genres in a single mashup. Like an audio scavenger hunt, listeners follow snippets of sound to their source, finding new favorite tracks and entire styles of music they didn’t know existed.

All of this is happening under the commercial radar right now because creating songs with unauthorized samples is technically copyright infringement. Girl Talk is the poster child for trying to make a career out of claiming such use is fair, using hundreds of uncleared samples and making lots of people scratch their heads as to how he gets away with it. There was a whole SXSW panel on it:

No one can argue there is a growing cultural awareness of Girl Talk-esque sampling as transformative, fair use among listeners and musicians. This contrasts with another widely held belief that there is a limit to sampling another’s work without payment. As they say in the video, “Puffy’s got to pay” when it comes to using the heart and soul of a song as the heart and soul of your new composition. In other words, any rational musician or listener can see there is a spectrum between fair use and copyright infringement when it comes to sampling. Unfortunately the law is generally absolutist about these things, and Girl Talk only avoids prosecution through conspicuousness. The fact is, anyone who samples any copyrighted song without permission is breaking the law and risking a lawsuit, and because of that, the professional mash-up musician is not allowed to be born.

Where does that leave music discovery via other people’s compositions? Will mashups/EDM atrophy without commercial support? Probably not. That’s the beauty of the illegal art form — it remains relatively un-compromised by commercial interests, and sustains a creative if chaotic scene. The uglier side — at least from a purely aesthetic perspective — is that the genre remains clogged with amateurs with no clear path toward a professional music career.

Much of the progressive talk in the music world around this issue centers on the concept of introducing a compulsory sampling license. Some serious thought and legal expertise has gone into developing this path toward copyright reform. The intent is to balance the welfare of the greater good and culture at large against what many perceive as too much power given to the individual — in this case, the copyright owner of the sample in question.

In the same way I can cover a song without permission so long as I compensate the original composer via a compulsory license, I could theoretically do the same for the composers (and sound recording rights owners) of my samples.

In practice, this is tricky for a number of reasons. For example, how do we set a compulsory sample licensing fee? Most people seem to think it should be based on what percentage of your composition the original sample represents, or what percentage of the original composition/sound recording you took. But how does one possibly determine that? Length of the sample? Whether it’s used in the chorus or the verse? Amount of sample transformation? The variables are endless. Calculating them in any standard format is flatly impractical — any attempt to do so would be fraught with compromise.

Then comes the personhood concerns — the idea that a person might not want their composition to appear in a particular context. For example, when Kanye West paid handsomely to use an Otis Redding sample on Watch the Throne, Otis Redding’s estate vetted every word in the song to ensure it matched Redding’s legacy. A compulsory sample license would allow me to use the same sample in a new composition called “Otis Redding Sucks” as long as I paid the requisite fee.

For those unfamiliar with music copyright, a song basically has two rights attached to it: the actual sequence and structure of the notes and lyrics as well as the actual recording. It’s another reason why sampling is trickier than cover songs — with a cover, you’re making a new recording, so you don’t have to pay or get permission to use the old one. With a sample, you’re dealing with two different sets of rights, which technically means two different licenses. Compositions are administered by performing arts organizations (ASCAP, BMI, SEASAC) on behalf of publishers and artists, licensing them is a fairly standard process. But many musicians transfer their song’s second right — the sound recording right — to a record label in exchange for financing the recording and marketing of their album. Thus, negotiations for sample use are not always entirely up to the artist, but their label as well. So in¬†many cases, the composer would be cool with using the sample, but the record label that owns the sound recording would say no or hold out for more money.

For these and other reasons, it’s not likely that genres based on unauthorized sampling will reach any sort of widespread commercial viability any time soon. And that’s a real bummer, because we’re denying a generation of listeners one of the most vibrant music discovery platforms yet invented by humans — the composition-within-composition. Not to mention all the dough being left on the table.

Thankfully — as I always say — music finds a way. Bridgeport didn’t stop unauthorized sampling any more than Napster stopped unauthorized file sharing. In both cases, music discovery was driven underground.

We will continue to see the growth and evolution of compositions that make unauthorized use of other people’s compositions and sound recordings. I would urge all musicians to fight the good fight and protect their compositions and sound recordings with a Creative Commons license instead of relying on traditional copyright. With Creative Commons, you can protect your song against unauthorized commercial use while giving a wide berth to allow transformative uses of your song like sampling and remixing.

Sample culture will continue to thrive beneath the surface of the mainstream, waiting for a law to pass and unleash its bottled-up commercial potential. Until then, it will only get cooler and more creative, and samples will only gain more political power.

The corporations that control 75% of the world’s music would be keen to pay attention and change their strategy. Picture this: Girl Talk takes the stage with Aerosmith and Run-D.M.C. at the 2014 Grammy Awards and they infringe 60 years of music in 5 minutes. Watch that mashup single become the new “Gangnam Style” overnight.