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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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