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Feelin’ Loopy

Digital sampling has long been a staple of recording artists, from the kid doodling with a laptop to the platinum artist crafting the next smash hit. Sampling has been a huge factor in the development of hiphop; cutting and pasting is a natural outgrowth of using a couple of turntables in lieu of the band you can’t afford. Groups like Public Enemy, De La Soul, and the Beastie Boys built their empires on collages of nicked riffs and grooves from other people’s recordings.

And as computers and the Internet became more ubiquitous, remixing has become a predominant art form/entertainment device/studio tool, ranging from the use of a single, crisp, snare-drum hit to the appropriation and re-casting of entire segments of a song. One great story (which I can’t confirm is true, but so what?) involves Robert Plant admitting that he stole drum sounds for a solo project from a Beastie Boys record; when contacted, the Beastie Boys admitted to grabbing the drum sound in question from an old Led Zeppelin record. On the other end of the spectrum is DJ Danger Mouse’s Grey Album, a killer 2004 mash-up of the vocal tracks from Jay-Z’s Black Album with recognizable instrumental loops grabbed from the Beatles’ White Album.

And it’s typically been a game of hide and seek, or maybe don’t-ask-don’t-tell, or maybe nudge-nudge-wink-wink. Sometimes artists would seek licenses for the reuse of a previous recording, sometimes not, depending on things like budget, attitude, degree, respect, and whether the re-user thought he’d get caught.

The law has totally failed to keep up with any of this. In fact, due to a couple of astonishingly moronic court decisions, the practice of sampling is now in severe legal limbo, and the creativity that sampling encourages is being strangled, and new works based on old works are the exclusive province of the rich, powerful and connected.

In the early 1990s, the rapper Biz Markie used big chunks of the old, treacly Gilbert O’Sullivan hit “Alone Again (Naturally)” in a song he released. Markie had asked for permission to use the samples, his request was denied, he released the track anyway, and O’Sullivan sued. Markie got slammed, with the judge declaring that Markie had violated the basic precept of “thou shalt not steal,” finding Markie guilty of civil infringement and referring the matter to a federal prosecutor, who wisely declined to bring criminal charges against an artist who was simply doing what artists have always done.

Last year, several publishing and record companies went after more rappers, resulting in a shocking decision out of the Sixth Circuit Federal Court of Appeals in Tennessee, announcing, in the context of the use of a severely altered loop of a George Clinton guitar riff, that any digital sampling was an infringement, even if the sample is not recognizable on the new recording. This was a dramatic departure from previous law—that infringement can only be found where a “reasonable person,” observing the works in question, would conclude that one work stole from the other. The court justified its ruling, in part, by saying that its new black-and-white rule was easier to apply, because artists should be able to just hire musicians and go into the studio instead of utilizing digital samples, and since licenses to use digital samples could be readily obtained for “market prices.”

Wrong, wrong, and wrong. First, laws about difficult subjects cannot be crafted because they are easy to apply. That’s crazy. Judicial laziness always leads to bad results. Second, the cost prohibition of hiring musicians and going into the studio is precisely why sampling has become so popular—it erases one cost barrier to creating new sound recordings. And besides, the “alternative” solution of hiring musicians to go into the studio to create sounds just like the sounds on an existing record does absolutely nothing to encourage creativity, not even a little bit. Last I checked, the purpose of copyright law was to encourage creativity, and the Sixth Circuit’s clever little fix does exactly the opposite.

Third, and most importantly, licenses to use digital samples are not readily available, and there are no market prices. I have no idea how the judges came to their conclusion to the contrary, but I suspect they’ve never tried to clear a sample for a hiphop record. To get the rights to a digital sample, one needs to contact both the recording company of the recording, as well as the publishing company of the writer, of the song to be sampled. Getting to the right person can be time consuming and frustrating. They can, and often do, just say no. They can, and often do, charge exorbitant fees if they decide that your project is worthy of a license. They can, and do, jerk your chain, leaving you waiting for weeks for a decision. Typically, they also want to hear your new recording, which means you have to spend the time and effort make your new creation in the hopes that just maybe you’ll be able to get the licenses required to release your new work legally. If not, you either scrap the project or go underground.

Or, like Biz Markie, release the track anyway and risk getting on the wrong side of a misinformed, uncomprehending judge with a bad attitude.

—Paul Rapp

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