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.