Thoughts on sampling & copyright law.

Copyright & Sampling (Part 1)


Copyright & Sampling (Part 2)


On March 7th, 2007, the future of internet radio was being hotly contested in the House of Representatives. At the time, delegates were debating the validity of a recently ruling by the government's Copyright Royalty Board. Had the bill passed, it would have significantly raised the royalty rates for streaming songs over the internet. In all likelihood, this would have crippled a fledgling industry that many small-time recording artists and independent labels have lauded as an invaluable promotional tool for breaking music to new audiences. Thankfully, the bill has been delayed, and the oppositional Internet Radio Equality Act has garnered over one hundred Congressional sponsors since (largely due to a highly active contingent of online protesters). Nonetheless, it's been a tense couple of months for internet radio listeners.

However, when Senator Mike Doyle of Pennsylvania assumed the podium to testify on that day back in March, he didn't seem too concerned with the state of internet radio. Rather, he wanted to talk about mash-ups – specifically, the work of one of his Philadelphia constituents, Greg Gillis. Gillis, who goes by the stage name of Girl Talk, has gained notoriety for using samples from as many as thirty different artists in a single three minute song. His 2006 album, Night Ripper, received numerous accolades for its originality and deft manipulation of samples, placing prominently in several best-of-year lists. However, under today's copyright laws, Gillis' work is also totally illegal. Doyle argued passionately in favor of the Girl Talk album, positing that, "some sampling of copyrighted material, especially when manipulated and re-contextualized into a new art form, is legit and deserves to be heard." He proceeded to compare Girl Talk's music to that of the Paul McCartney of the legendary Beatles, who copied a Chuck Berry bass riff for the song "I Saw Her Standing There." Perhaps Girl Talk's mash-up efforts aren't too different, Doyle suggested.

In a government that is generally highly restrictive when it comes to re-proportioning copyrighted works, Doyle's monologue was a refreshing treat that brought attention to an important issue in modern music culture. While his speech was largely irrelevant to the online radio proceedings and had no real impact as far as legislative action goes, it sparked popular debate anew throughout hundreds of internet forums and Starbucks cafés – is sampling a legitimate music tool, and if so, to what extent should it be protected or restricted under today's intellectual property law? Certainly, the practice has had a rocky road since its rise to prominence in the 1980's. On one hand, it single-handedly revolutionized electronic music and practically birthed the genre of hip-hop. Proponents have hailed it as a creatively liberating and transformative new art form, one that takes old music and re-contextualizes it into something new and exciting. On the other hand, sampling has been derided as highly derivative work that clearly violates the rights of a copyright owner. These critics argue that sampling is hardly a boon to creativity – rather, it does little more than illegitimately abuse the creative output of other artists.

In this essay, I will argue that sampling is a legitimate and transformative form of music, and that artists should be given more legal freedom to use the technique. My thesis is backed by two crucial points. First of all, I adopt the stance that sampling has allowed for the creation of new, horizon-expanding music that stands on its own legs as original and transformative. Secondly, I posit that the chief goal of copyright law is to promote creativity – when it is used restrictively (as it has been with sampling), it unjustifiably inhibits our cultural vitality and blocks the creation of new, artistically viable work. This is both dangerous and unacceptable – as Tim Wu bluntly summarized in an article he wrote for Slate magazine, "Vibrant cultures borrow, remix and recast. Static cultures die." If the two proposals I suggest are assumed to be true, then it is clear that copyright law should be revised to allow provisional sampling usage (dependent on a couple qualifications that I will discuss later in the essay).

Copying another's music is a cultural practice that extends back to the very beginning of the medium's existence. Themes, song structure, rhythms and note patterns are often repeated within different genres of music – blues is largely based on the constant re-imagination of the same three chords, and many classical music composers wrote pieces that clearly built upon the work of their predecessors. Using old music as a building block for new is not a new concept – in fact, it is deeply ingrained into our culture. To use a more contemporary example, Nirvana frontman Kurt Cobain famously proclaimed that his band's hit single, "Smells Like Teen Spirit," was a rip-off of the alt-rock pioneers Pixies – without that band's influence, Nirvana probably wouldn't have explored the loud-soft dynamics and vocal eccentricities that characterized their hugely influential seminal album Nevermind.

The way that these musicians build off of previous music is roughly analogous to sampling. Sampling is the act of taking a small element of a music recording and re-proportioning it into a new piece of work. The most obvious difference between these two methods is that sampling is digital, whereas previous musical quotations have been analog. Namely, one approach replicates the notes of older music by replaying them with actual instruments, whereas the other replicates more precisely through the use of a digital sampler machine. The first of these machines were introduced in the early 1980's. They had the ability to record any sound – from the slamming of a car door to a human voice – and covert it into a digital signal. Once a recording was made digital, it could be easily manipulated by a computer and incorporated into a new piece of work. By the middle of the decade, samplers were relatively inexpensive and readily accessible, which corresponded with the late 1980's rap boom. Sampling has opened the door to a wide variety of new techniques in music – the usage of loops, digital manipulation, complex layering of vocals or instrumentation – that have all had a huge impact on the music scene today. However, most of these techniques are non-controversial. In this essay, when I use the term "sample" or "sampled work," I will be referring exclusively to the re-proportioning of pieces from other music recordings.

Many sampled works have gained widely acknowledged artistic legitimacy. For example, DJ Shadow's 1996 debut Endtroducing...... was lauded as the first album ever released built entirely from samples. Blending snippets of jazz, funk, psychedelic and hip-hop with dialogue from old television shows and interviews, Endtroducing..... was completely unique at the time of its release. As written in the Allmusic review of the album, "the effect was that of a hazy, half-familiar dream – parts of the record sound familiar, yet it's clear that it only suggests music you've heard before, and that the multi-layered samples and genres create something new." It also unanimous acclaim from critics as one of the best albums of the 1990's, and went on to inspire an entire sub-genre of electronic music – instrumental hip-hop. In 2000, Australian musical pioneers The Avalanches released Since I Left You, a remarkably cohesive melange of sounds assembled from over 3,500 vinyl samples. It too received widespread critical acclaim, with many critics citing the nostalgia that the samples evoked as one of the record's key strengths. In a glowing review of the album, Italian music historian Piero Scaruffi said that, "their recombinant art... was both hilarious and illuminating, as if shedding new light on the values of an entire civilization by de-constructing and de-contextualizing its fundamental attributes."

Both the aforementioned works are completely sampled – neither band plays any instruments or sings on record. Nonetheless, they have also been widely recognized as original, artistically legitimate statements. They are also excellent examples of sampling at its finest – bits and pieces of old songs have been re-contextualized into new music that stands on its own as distinct and original. To hear the work of either DJ Shadow or The Avalanches is to hear music that is both strikingly novel and disorientingly recognizable. It's somewhat saddening, then, that the initial international pressings of Since I Left You were printed only after the removal of several unapproved samples. While the work circulated throughout The Avalanches' home country of Australia unadulterated, international fans of the band didn't get the opportunity to hear the album as it was meant to be heard.

The reasons for this are simultaneously clear and unclear. On one hand, the band had not been able to clear all of the samples that it had used on the record, and thus did not have the authority to publish the original music in countries such as the United States. On the other hand, it's not at all clear why that this should have happened. Since I Left You had widely been acknowledged as a transformative piece of work – should copyright law really be used to restrict the distribution of original, creative content? Yet the case of Since I Left You is almost laughably insignificant when held up to the dozens of music labels that have been aggressively sued by profit-hungry corporations, or artists who have had injunctions filed that prevented the distribution of their critically acclaimed music – all in the name of copyright law.

In order to understand how copyright has led to this restriction, we must consider two things – (1) the original purpose of copyright law, and (2) how this definition has been warped over the past several decades. Classically, the goal of copyright law is to encourage creativity. In order to do that, it must offer incentives for artists to create new work. If artists are given no legal control over what they have created, then their work is instantly devalued because it can be distributed and used freely by anybody, anywhere. This is problematic in that no artist would ever be able to profit off their work. On the other hand, artists cannot be given absolute control of their output. This could potentially prevent anybody from using their work, which would prevent culturally valuable criticism, supplementation and augmentation of other creative works. One of the most crucial concepts here is that of originality, which "implies that the author or artist created the work through his or her own skill, labor and judgment." The law wants to encourage the creation of further original works, but also protect against unauthorized derivative works. Determining a work's originality is useful in that it helps distinguish whether it is overly derivative or sufficiently creative.

This is where the fuzzy concept of fair use comes in. Courts are charged with the responsibility of determining whether or not a piece of work is legitimately transformative or original, or if it is a violation of the original copyright holder's rights. In the case of sampling, there are a number of questions to consider. However, two clearly stand out as the most important. Firstly, does the new song compete with the original work, thereby hurting the original artist? Secondly, is the sample used to supplement a new, creatively engaging work, or does it rely too heavily on the original (ie. is it both transformative and creative)? With highly imprecise questions like this, it becomes apparent than fair use is a rather sloppy concept, one that is extraordinarily subjective. Nonetheless, we can still give these questions some consideration and see where sampling might fit into the legal scheme of fair use exceptions.

In the vast majority of cases, the answer to the first question is "no" – sampled music almost never competes with its original counterpart. Generally speaking, it is completely re-contextualized and appeals to completely different genre markets. For example, hip-hop predominantly samples from unrelated 1970's funk and soul, and those ubiquitous big beat remixes of Top 40 songs generally appeal only to a separate niche market of techno fans. For an extreme case, let's take a look at the aforementioned work of Girl Talk – no one would ever want to buy Night Ripper as a replacement for The Beatles' Abbey Road or James Brown's In the Jungle Groove, even though both are sampled in his work. This is because Girl Talk's music is totally different from songs that it originally sampled. Night Ripper is neither a classic pop album nor a delicious slice of funk and soul – it's a mash-up dance album, and that's an entirely different animal. To imagine that somebody might buy his CD as a replacement for any of the sampled artists is completely absurd. As Congressman Mike Doyle said before the House of Representatives in defense of Girl Talk, "mash-ups are a transformative new art that expands the consumers experience and doesn't compete with what an artist has made available on iTunes or at the CD store."

In fact, far from offering competition, sampled music is often a useful promotional tool that gets artists even more deserved attention. In 1987, Suzanne Vega released her sophomore album, Solitude Standing. The opening track, "Tom's Diner," was a gentle a capella song that clocked in at a little over two minutes. At the time, it didn't receive much attention. However, in 1990, the song was retooled by the fledgling British techno artists DNA Disciples. The remix re-contextualized Vega's vocals over a dance beat by Soul II Soul, and used the ad-libbed vocal on the original song's outro as the hook. Vega was incredibly pleased with the remix, and asked her label to release it as a single. It became a top 5 hit that year, and served as great cross-promotion for both artists. Admittedly, the Suzanne Vega example is one of rare synergy between the sampler and the sampled, but given that sampling only very rarely competes with the original artist's music, it can only bring more attention to it.

The more crucial question, then, is the second – is the work both transformative and creatively engaging? As Guy Garcia wrote in a 1991 article for TIME magazine, "The arts have a long tradition of allusion and quotation, often with resonant effects. In pop music the only danger of sampling is that performers will use it as a crutch for the imagination, rather than a tool to help liberate it". In many cases, the creativity behind a work is readily apparent and widely acknowledged – for example, both the aforementioned albums by DJ Shadow and The Avalanches were heralded as excellent and worthy examples what can be done with samples. However, originality isn't always present. In 1981, Vanilla Ice came under criticism for heavily sampling David Bowie and Queen's "Under Pressure" in his number one single, "Ice Ice Baby." Under pressure (honestly, no pun intended) from the original songwriters, Ice retroactively gave them songwriting credit, and it is speculated that an agreement was reached out of court. Songs such as "Ice Ice Baby" have been widely derided as highly derivative, riding on the catchiness of the sampled music instead of original creativity. When listening to the song, it is clear that a significant portion of its appeal ride on the catchiness of the sample it uses, using it as the kind of "crutch" that Garcia feared. Copyright law should not be protecting artists if the work they create isn't both transformative and creatively engaging. Similarly, one should not broadly condemn such a vibrant and colorful vein of creativity in today's music culture – fair use should certainly be granted to valid works.

Historically, however, the courts have not agreed with this reasoning. Over the past few years, the judiciary may have granted immunity to almost all works of parody, but fair use exceptions are much harder to come by in sampling cases. Largely, this is because copyright law has come to stand for "property right" – it tends to tends to protect the interests of established artists far more than those of future artists. Obviously, this runs counter to copyright's original purpose. Copyrighted material shouldn't be treated as property, but rather, it should be looked at as a potential source for culturally and artistically valuable new work. Unfortunately, corporate media interests are among the most powerful voices in government today, and they are far more concerned with turning a profit off their current assets. Thus, instead of looking forward and offering rewards to creators of new material, copyright law has come to look backward and reward the people who already own copyrighted material. This is violently contrary to the original purpose of copyright law, and threatens a serious stagnation of our culture.

Yet you'd be hard pressed to convince major labels to change – the new face of copyright law is licensing, and it has given them a potent new source of revenue. In a move that is revealing of their greed and disregard for upcoming artists, music labels make sure that sampling is an incredibly expensive process. Today, all "legitimate" music acts must "clear" every sample that they use, which generally involves paying an up-front fee and guaranteeing the sample owner hefty royalties. Therefore, sampling becomes an incredibly restrictive industry. Artists on independent labels never have enough money to invest in the clearing of samples, and the immense amount of legal red tape is enough to dissuade any artist without a legal team behind them. Obviously, this makes sampling an incredibly restrictive art form, and puts upcoming artists at a gigantic disadvantage. Bigger artists such as Eminem and Kanye West can get their labels to cover sampling costs, but small-time artists like Girl Talk have absolutely no means of legally sampling their work in today's culture. As Marjorie Heins articulately phrased in "Trashing the Copyright Balance," "independent artists, artists who can't afford fees and rebels who just don't want to get permission for every chord or riff they copy are silenced in a system that ignores their free speech rights."

A system like this can lead to some pretty horrible abuses. Bridgeport Music is likely the worst offender, being the most powerful "sample troll" working in today's music market. Sample trolls are companies that acquire the rights to numerous recordings and proceed to "troll" the music industry for artists who use these samples, no matter how insignificant or marginal their use might be. Bridgeport Music is actually a one-man corporation that was established in 1969 by former music producer Armen Boladian. The company has no assets aside from its copyright holdings and earnings from related court cases. Technically, Bridgeport is a "catalogue company" – a corporation that owns the licensing rights to various media and sells them to interested parties. However, Bridgeport takes a much more active approach in its approach to licensing. Instead of waiting for clients to approach his company, Boladian actively "trolls" for instances of sampling and sues all those who re-proportion songs under his jurisdiction.

In the 1970's, Bridgeport Music acquired the rights to the vast majority of funk musician George Clinton's music through a serious of dubious court decisions. In a couple of cases, Boladian actually wrote his own contracts and then forged Clinton's signature. These acquirements soon proved to be a boon to Bridgeport Music, as Clinton's songs are among the most widely sampled in hip-hop. Ironically, George Clinton is actually in favor of sampling. In an interview with Rick Karr, he said, "I was glad to hear it [hip-hop sampling], especially when it was our songs – it was a way to get back on the radio." However, Clinton has absolutely no input as to how Bridgeport Music uses his songs. Mostly citing his Clinton assets, Bridgeport filed nearly 500 counts of copyright infringement against over 800 musicians and labels in 2001. The corporation assumed the position that every sample, no matter how minimal or manipulated, constitutes a copyright violation. Sadly, the courts upheld that stance. While many of the cases were dismissed or settled outside of the courtroom, Boladian's company won a landmark victory against N.W.A. in 2005.

The case in question was Bridgeport Music vs. Dimension Films, which centered on N.W.A.'s 1990 single, "100 Miles and Runnin'". The song sampled Funkadelic's "Get Off Your Ass and Jam," even though use of the sample was entirely non-obvious. Producer Dr. Dre had taken a two-second guitar chord progression from the song, significantly lowered the pitch, and the pitch, and then looped it five times throughout the song . The original sample was barely distinguishable, but the court ruled in a 1994 appeal that the copyright owner of any sound recording had the exclusive right to publish it, or any variations thereof. Specifically, the court said, "Get a license or do not sample. We do not see this as stifling creativity in any significant way." Furthermore, the court removed the prior de minimis standard on sampling. Many previous sampling cases had dismissed based on the fact that they were so insignificant that they couldn't possibly be violating copyright law. The Bridgeport case revised that policy to a "bright line" stance, which said that all music samples were protected under copyright, no matter how insignificant their usage was. Obviously, this makes things easy for the courts – it eliminates the troublesome vagueness of the "fair use" concept altogether. However, it was profoundly frightening from the viewpoint of sampling artists.

This case is troublesome for several reasons. First off, the opinion that restricting sampling doesn't restrict creativity is completely ridiculous. N.W.A.'s off-kilter brand of intensified street-rap probably didn't appeal to the musical tastes of the white, aging jurists, but that is hardly grounds to dismiss the creativity of the work. In fact, the decision was widely derided as racist, as it refused to recognize hip-hop (a predominantly black art that depends on sampling for its vitality) as a legitimate art form. If there is one form of music that depends on sampling more than any other, it is rap – its very creation has been tied to sampling since its rise to prominence in the 1980's (with a few exceptions, such as the instrumentally-based hip-hop jam band The Roots). While there is certainly a significant amount of hip-hop schlock that permeates our airwaves today, a huge roster of hip-hop artists have been widely recognized as extraordinarily talented and artistically gifted. However, in spite of the hip-hop's critical and popular legitimacy, the Bridgeport case completely dismissed it.

Secondly, it allows for censorship at the discretion of copyright owners. People may argue that the music industry is probably not interested in censorship, but historically speaking, this has not been the case. In 1994, the vulgar rap collective 2 Live Crew was sued for mimicking Roy Orbison's classic "Oh, Pretty Woman" and allegedly defacing the song with their characteristically misogynistic lyrics. Certainly, 2 Live Crew's take probably "ruined" the song for many people by putting it into a highly unappealing new context, but the courts rightly upheld the notion that the song was transformative and original. However, with the Bridgeport decision, labels do not need to sue artists that they don't like – they merely need to deny them permission to use the sample. That this sort of power currently rests in the hands of labels is frightening, and flagrantly contrary to the purpose of copyright law.

Thirdly, "musical quotation" remained a viable form of sampling – the courts specifically acknowledged the legitimacy of re-recording a sample and using that in place of a direct digital copy. However, this completely ignores one of the chief sources of creative potential in sampling – re-contextualization. As DJ Shadow said in an interview with Keyboard magazine, "Cutting and pasting is the essence of what sampling culture is all about for me. It's about drawing from what's around you, and subverting it and de-contextualizing it." To be fair, the N.W.A. song was not an example of this re-contextualization – the Funkadelic sample was manipulated beyond recognition, such that nobody listening to the song could have recognized it, or drawn any cultural merit from its usage. However, for artists such as the Top 40-sampling Girl Talk, re-contextualization is a vital part of the music's message. The courts are clearly ignoring the vital basis for creativity that they should be protecting anyway.

In the time since, labels and copyright owners have unfairly wielded their newfound copyright powers against numerous critically acclaimed artists. In 1997, the Verve released its hit single, "Bitter Sweet Symphony." The song used an inverted sample from an obscure orchestral tribute to the Rolling Stones' "The Last Time" for its hook. The Verve had actually asked verbal permission to use the sample, but they were sued anyway for using "too much of it" in the song. To be sure, "Bitter Sweet Symphony" leans heavily on the sample, but it also featured completely original lyrics, structure and instrumentation. Nonetheless, the band was successfully sued by the Rolling Stones. They lost all profits to the band, and Mick Jagger and Keith Richards were inexplicably given songwriting credit, even though they had absolutely nothing to do with the recording. Another more infamous example is DJ Danger Mouse's The Grey Album, which used cut-up samples from The Beatles' The White Album as a musical bed for vocals from Jay-Z's The Black Album. EMI, who held the copyright to the Beatles recordings, immediately filed an injunction to prevent distribution, even in the face of the album's enormous popularity and critical acclaim. In protest, Danger Mouse fans organized Grey Tuesday – On this day of digital civil disobedience, participating Web sites and blogs offered Danger Mouse's mash–up for download in defiance of EMI's legal threats. Aside from these two examples and numerous others, many speculate that even more great works haven't been realized because of copyright law – record labels frequently nix ideas for heavily sampled works before their musicians are even given studio time.

In the meantime, Bridgeport continues to work in the background of the music industry. Just last year, Boladian's shady corporation was awarded $4 million for illegal sampling in Notorious B.I.G.'s landmark debut, Ready to Die. But, as the prominent west coast rapper Ice T might say, don't hate the player – hate the game. It's not the corporations who are truly at fault here, as they are simply taking advantage of opportunities to earn money – we live in a capitalist system, and this sort of entrepreneurial behavior is to be expected. Change is not going to come from the corporations, who always have and probably always will be predominantly concerned with profit. The true villains here are the courts, who have supported a copyright system that clearly violates the very principles of creativity and originality that it is supposed to protect. Assuming that sampling is a creatively viable music technique (as I have argued here), there is no reason that the courts should allow commercial interests to have jurisdiction over how samples are used. In such an environment, the focus inevitably shifts from the generation of new, creative content (ie. art) to the protection of old material (ie. profit). While odds are low that we are going to see significant political change anytime soon, forward thinking politicians such as Mike Doyle do lend us a certain degree of hope – perhaps a moment of change is on the horizon. With any luck, upcoming samplers such as Girl Talk will gain legitimate legal standing within the next few years – until then, the gross perversion of copyright law will seriously cripple what should be a vital source of creative new music.

Originally written for MDST 385.