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Piggies
The
newswires were buzzing last week about the “sudden” appearance
of Beatles’ riffs in some new hip-hop songs by the Wu-Tang
Clan and Ja Rule. This was touted as some kind of seismic
shift in the attitude of the publishing company that owns
the songs, Sony/ATV, in their loosening of the reins on the
fabled catalog.
But it wasn’t such a big deal. Jay-Z was granted riff-rights
in 2003 for a track on The Black Album, and
Sony/ATV has been licensing songs for the occasional advertisement
and movie for years.
What it does point out, though, is the ridiculous, draconian,
and anti-creative nature of music licensing, especially as
it pertains to sampling existing recordings.
Where to start? Hip-hop was built on sampling. Two turntables
and a microphone on a Bronx basketball court block party in
1978; what was on the turntables? Other peoples’ hit records,
that’s what. In the intervening years, though, publishers
and record companies have become increasingly restrictive,
some would say greedy, with their “properties,” cutting-off
the access to these pre- existing works to all but the most
wealthy.
Pay attention now. When a bit of a recording is nicked for
a new tune, there are two copyrights that are being used:
one is related to the songwriting, the composition;
the other is related to the performance, the recording.
Typically, the rights to the composition are controlled by
a publishing company (which pays royalties to the songwriter)
and the rights to the recording are owned by a record company
(which pays royalties to the recording artist).
The law provides that anybody can do their own recording of
a song, so long as they pay a compulsory license fee (also
known as a “mechanical license”) to the publisher of the song.
That royalty is currently about nine cents per distributed
copy. But this compulsory license only applies to cover versions
of an entire song, with the melody and lyrics more
or less intact; it doesn’t apply to using just a part of a
song as a building block for a new song. And it also doesn’t
apply to the use of a sample of a recording, of using somebody
else’s performance in a new song.
This means if you want to cut and paste a chunk of an existing
recording into your new song, you’ve got to get permission
(and a license) from both the publisher and the record
company. And since there’s no compulsory license, these entities
can charge whatever they want for these licenses. Or they
can just say no altogether.
And that’s a problem.
A few years ago I had a client come in with a truly breathtaking
recording, constructed partially out of samples from three
30- to 40-year-old recordings, along with a bunch of added
instruments and vocals. The client was looking for a record
deal, and wanted to release a track to radio and on the Internet
to get some buzz going. And the client wanted everything to
be totally legal. It was my job to try to get the licenses
for the three samples. For each sample, I had to determine
the current publisher and the controlling record company,
which took some sleuthing. Then I had to try to get the licenses.
One publishing company would only grant me a license based
on 100,000 unit sales, demanding a $5,000 cash payment. One
record company never responded to my calls, e-mails and letters.
One publisher simply denied my request (after a six-week wait
and countess phone calls), without telling me why.
Interestingly, not one of the six entities I tried to deal
with asked to hear the track that my client had created. And
it was, in my opinion, a potential hit, a track of real beauty
and creativity. And it died on the vine.
What we have is a system where new, creative works that incorporate
sampled sounds from existing records can only be made, if
at all, by major artists, or artists backed by the kind of
big money that only major labels can afford. If this had been
the situation 30 years ago, the genre of hip-hop might have
never been born; it would have been crushed by the weight
of the misdirected use of copyright law, a law that is supposed
to encourage and foster creativity, not kill it.
The obvious answer here is the creation of a compulsory license
regime that the law already provides for cover versions of
entire songs to be applied to samples of both compositions
and recordings, a system by which publishers and record
companies can’t block an artist from sampling a track, but
will get paid a reasonable license fee for any and all commercial
uses of a recording. It’s extremely doable, but it would need
a revision of copyright law, an act of Congress, and the creation
of a royalty-collecting agency, along the lines of Harry Fox
or SoundExchange.
Record companies and publishers would rake in millions in
royalties without lifting a finger. All sorts of new music
would be made, as sampling without fear would become mainstream.
It wouldn’t be perfect. But nothing associated with copyright
law ever is. And it would be infinitely better than what we
have now.
—Paul Rapp
Paul
Rapp is an intellectual-property lawyer with offices in Albany
and Housatonic, Mass. He teaches art-and-entertainment law
at Albany Law School, and regularly appears as part of the
Copyright Forum on WAMC’s Vox Pop. Contact info can
be found at www.paul rapp.com. Comments about this article
can be posted at rapponthis .blogspot.com.
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