How Copyright Law Makes Sample-Based Music Impossibly Expensive... If You Want To Do It Legally

from the too-bad dept

We've talked a few times recently about the wonders of sample-based music, along with the fact that the legal issues surrounding copyright on such works means that many works are simply not legal. Kembrew McLeod, who made the excellent film Copyright Criminals, about the legal issues around sampling in hiphop, is also out with a new book, called Creative License: The Law and Culture of Digital Sampling. He's done a fantastic interview over at The Atlantic, where he talks about the ridiculous hoops a musician needs to go through these days to make "legal" sample-based music:
To legally sample a recording you have to negotiate a separate sample clearance fee with two different rights-holders: whoever owns the sound recording (the actual sound that's been fixed to magnetic tape, CD, etc.) and the song publisher (who owns rights to the underlying melody and lyrics). This takes a lot of money and time. For well-known songs, licensing fees can be very expensive—and sometimes rights-holders won't agree to a sample clearance for any price.

But it gets way more complicated when you start sampling songs that contain samples, which is increasingly the case today. If you wanted to sample, say, "Fight the Power" by Public Enemy—well, that song contains 20 samples. You'd have to get permission from Def Jam, which owns the sound recording rights, and then Public Enemy's song publisher. Then you'd have to go to the other 20 song publishers and get permission to use the song—it creates kind of a domino effect. This licensing logjam is only going to get worse and worse and worse as people increasingly sample the recent past, since that recent past is already a collage. It just becomes impossible to do all these clearances.
And that's why the more creative sampled music today just isn't cleared at all, in the hopes that rightsholders won't sue. But that means that the "legal" sampled songs just aren't nearly as creative. There were some really creative albums early on, back before rightholders started demanding the moon to clear a sample, but those days are long gone. McLeod talks about how he and his co-author looked at the classic Beastie Boys album Paul's Boutique to calculate how much it would cost to clear today:
We figured out—song by song, sample by sample—how much it would cost to release each record. Sticking with the example of Paul's Boutique: there are about 2.5 million units sold of that record. Incidentally, a lot of the samples on Paul's Boutique actually were cleared—but they were cleared at a time, 1989, when the industry didn't really see the value of sampling yet, so the rates for copyright clearances were much lower. Today, the rates they'd have to pay would make it impossible. Based on the number and type of samples in that record, Peter figured out that Capitol Records would lose 20 million dollars on a record that sold 2.5 million units.
Of course, when we talk about sample-based music, we often have even the staunchest copyright defenders in our comments admit that the law isn't great on this subject, and they're more open to such "creative" infringement. However, what strikes me as more troubling is that many of the comments on the McLeod interview go the other way, saying that sampling is wrong. I get the feeling that, in many of these cases, people are getting their own feelings towards the music itself (i.e., they don't like sample based music, and somehow feel that it's not "real" music) confused with the actual creative issues at play here.


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  1.  
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    MrWilson, Apr 22nd, 2011 @ 5:40pm

    "it creates kind of a domino effect"

    I was thinking it's more like having to get permission from your girlfriend's 20 ex-boyfriends before you can sleep with her.

     

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  2.  
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    Anonymous Coward, Apr 22nd, 2011 @ 6:30pm

    Two-legged artists are always more important than those four-legged kind. Stupid four-legged kind with their disrespectful collages. How dare they use old culture to make new culture, that's wrong and it's stealing.

    In one hundred years when you need to ask permission to use small snippets of others work, I sure hope they have to personally ask every great-great-great grandcorporation to make their stupid "art".

     

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  3.  
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    Anonymous Coward, Apr 22nd, 2011 @ 6:32pm

    There are boatloads of sample CD's and such made royalty-free, for the express purpose of allowing others to make music from them. Sample-based music is used all the time legally and is very low cost. However if you just want to rap over someone else's entire song, that's not exactly legal. Try making your own song instead of just copying someone else's and expecting to make money off it.

     

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  4.  
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    Anonymous Coward, Apr 22nd, 2011 @ 7:29pm

    Re:

    Or just pay a pittance, don't ask for permission, and then cover the entire song yourself! And rap over top of it!

     

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  5.  
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    Nick Dynice (profile), Apr 22nd, 2011 @ 8:08pm

    To anyone who thinks sample based music is wrong because and feel that it's not real music, you are no different than your father or grandfather who thought rock and roll was wrong because it didn't contain any "real" instruments like, say, an orchestra.

     

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  6.  
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    Anonymous Coward, Apr 22nd, 2011 @ 9:23pm

    Re:

    I believe part of the attraction is the re-contextualization of the original song. It can be as mundane as "(rapping) over someone else's song", or it can be transformative and sublime. Many of the signature melodies of the great symphonic music of the last few centuries were adapted from the folk musics of common people.

     

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  7.  
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    Billy Wenge-Murphy (profile), Apr 22nd, 2011 @ 11:33pm

    Re:

    "However if you just want to rap over someone else's entire song"

    That's not sampling.

    "Just make your own song instead of copying"

    Everything is derivative of something else. Truly new ideas are completely impossible. Sampling is not a lower form of art, it's a natural, legitimate, creative use of content - the law simply doesn't respect that. The music industry as we know it is narrowing the scope of transformative fair use down to nothing.

    The culture is right, the law is wrong.

     

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  8.  
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    Nicedoggy, Apr 23rd, 2011 @ 5:51am

    Legally sampling is impossible today and as noted copyright produces absurd results like being able to take the entire song and make your own at a price point that is affordable to many, but making it impossible to use part of it which for me is bad.

    Is like trying to charge someone for each and every brick in a building, the law needs updating.

    We all know that is not only in music that this happens in movies too, everybody copies something from somebody else and produces others things.

    Thank God music doesn't depend on the law to be produced, people will still make it even if it is illegal.

     

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  9.  
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    Christopher (profile), Apr 23rd, 2011 @ 6:31am

    Paul's Boutique Analysis

    I love the numbers on that. The Dust Brothers have never been able to create something as richly-textured as that since 1989, largely because sampling had been demonized. The analysis just makes it concrete. Once again, another reason to do harm to the music industry.

    -C

     

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  10.  
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    ipgrunt, Apr 23rd, 2011 @ 9:07am

    Art is alive and well - all the good ideas are not taken.

    "Everything is derivative of something else. Truly new ideas are completely impossible."

    This kind of whining is self-defeating adolescent rationalization.

    I am glad that the artists who wrote the original numbers that are being plagiarized by the remixer/samplers of today's X-hop world did not have the attitude expressed above.

    Those that have something to say, say it. This is called art.

    Yes, there's nothing new under the sun, usually, but art is created by taking the present reality and processing it through the mind of an artist -- not through a DAW. That's the kind of expression of the human condition that's been going on for thousands of years, and when it is done with skill and with unique elegance, we call it art.

    Those who use technology to copy the music of others, only to tweak that music with a filter or delay module, then add a machine dub beat via Stylus RMX, don't seem to understand what art is really about, what motivates an artist to create, and what it means to have "something to say", which is why pop music hasn't changed much in the last 40 years. It's unfortunate, indeed.

    Gregg Allman, The Beatles, The Cars, Miles Davis, Bob Dylan, Duke Ellington, Bill Evans, Elvis, Dizzy Gillespie, Benny Goodman, Herbie Hancock, James Horner, Jack Johnson, King Crimson, Kitaro, Michael Kamen, Van Morrison, Muddy Waters, The Pretenders, Nino Rota, Roxy Music, Max Steiner, Hans Zimmer -- 7 decades of popular musicians -- you'll find little if any copying of other people's recordings in their music. There's no room for it, because their minds were and are full of original musical ideas. They all had something to say and they said it.

    Today's sampled music seems more about the tools than the work product. I suppose that requires a certain kind of talent, that of the machinist, but I would hesitate to call this activity creative work and I'd never call it art.

    Rembrandt, Renoir, Picasso, Pollack all painted portraits, but their art lies in how they painted those portraits, not the subject matter.

    Calling a DAW operator who's creative mode primarily uses audio sampling and remixing an artist is analogous to calling one who plays the video game WWII Aces a fighter pilot.

    No, contrary to the opinion of the current youth culture, all the good ideas haven't been taken. It's a harsh reality, but you either have something to say or you don't. Not everyone is an artist. True artistry is rare.

    Not even if you click your heels three times and say "I wish I were an artist" can you change this fact of life.

    Not even if the ad copy on the box of DAW software you bought promised to make you an artist, are you an artist.

    Art originates in the mind, and not on a computer. It's the same sad story -- garbage in, garbage out.

     

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  11.  
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    blatanville (profile), Apr 23rd, 2011 @ 10:26am

    Re:

    http://www.youtube.com/watch?v=5SaFTm2bcac

    Nate Harrison's "deconstruction" of the Amen Break.

    view the whole thing, but pay attention around 13:03 to hear some comparison of a commercially-available sample CD and an original break.

    interesting...

     

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  12.  
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    Rabbit80, Apr 23rd, 2011 @ 11:47am

    Fish...

    http://www.youtube.com/watch?v=xoYbFeXE6yM

    Whoever says sample based tracks are not creative are wrong. Go listen to Mr Scruff if you don't believe me! The track above features samples from both David Attenborough and David Bellamy amongst others...

    "I sampled a lyric about a whale, and then straight after I finished that tune it came out as my first EP, and I found loads of other samples which I wished I’d used in it. I found all these fish samples and I though ‘damn, I wish I’d had these when I was in the studio’, because I didn’t go in with the intention of making any kind of fish tune. In those days I used to go into the studio with a bag of like, ten records and make a tune out of them. After that I’d found a load more samples, so I thought I’d do another tune along the same lines and make it a bit more involved. By the time I’d finished that second tune, I thought ‘I’ve got a series here.’ I began actively looking for spoken-word records and nursery rhymes and stuff that had something to do with water, fish, sea, whales, fishermen or anything aquatic. People were sending me stuff as well, you know - Salmon Fishing the ‘whoever’ way. It was quite nice to do a spoken-word project with specific constraints, basically making a narrative about something to do with the sea or fish. A lot of the spoken-word stuff was quite amusing and clever, but it didn’t really go anywhere, so if I had a specific subject, I could get the words chopped up. So you might have five or six different sources in one sentence, all from different records and different people. You could get the tones and the cadence of the speech right so that it worked like a sentence, but also worked well over the beat so it was in time with the music. So that satisfied the kind of geeky editing side as well. It was obviously a great laugh to do, but very painstaking as well."

    http://blogs.sundaymail.co.uk/adriftintheabnormal/2008/11/mr-scruff-interview.html

     

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  13.  
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    abc gum, Apr 23rd, 2011 @ 1:04pm

    Re: Art is alive and well - all the good ideas are not taken.

    "Gregg Allman, The Beatles, The Cars, Miles Davis, Bob Dylan, Duke Ellington, Bill Evans, Elvis, Dizzy Gillespie, Benny Goodman, Herbie Hancock, James Horner, Jack Johnson, King Crimson, Kitaro, Michael Kamen, Van Morrison, Muddy Waters, The Pretenders, Nino Rota, Roxy Music, Max Steiner, Hans Zimmer -- 7 decades of popular musicians -- you'll find little if any copying of other people's recordings in their music."


    Really?
    Have you studied music and therefore are an informed source for such a statement?
    Seriously, I'd like to know.

     

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  14.  
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    Billy Wenge-Murphy (profile), Apr 23rd, 2011 @ 1:06pm

    Re: Art is alive and well - all the good ideas are not taken.

    >you'll find little if any copying of other people's recordings in their music

    Except the endless common themes and riffs they used, as all musicians do. What you've missed in your rambling wall of text is the core idea. Everything you can create is derivative even if it's only trivially so. You're still creating on top of basic musical ideas, building on them successively in only modest ways.

    And at least a few of those artists had popular songs which were renditions of old folk songs. Even perfectly legal copying from the public domain is still copying for the purpose of this discussion. Your argument is absolutely nonsensical.

    >This kind of whining is self-defeating adolescent rationalization

    Yum, trollbait

    Come up with an original idea, post it here, and I'll retract my statement. Either disprove it in a mature manner or don't weigh in at all ;)

     

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  15.  
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    Rikuo (profile), Apr 24th, 2011 @ 5:17am

    Here's my opinion on remixing. If you create a piece of music, after having studied or learned music, and then distribute it (either on disc or the internet), it is then hypocritical of you to be angry over other people using it in a remix. You have taken prior art in one form or another (perhaps you listened to Beethoven and sought to recreate a piece of music in his style). Not only that, you are also saying that you don't want your art to influence other artists. Every single successful musician throughout history has been influenced by the works of others. Just now, I watched a James Brown video on Youtube, and recognized that some of his musical styles were incorporated into Michael Jackson's own styles.

     

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  16.  
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    Anonymous Coward, Apr 24th, 2011 @ 10:40am

    Re: Art is alive and well - all the good ideas are not taken.

    What a derivative argument. Can't come up with something original?

     

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  17.  
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    Richard (profile), Apr 24th, 2011 @ 11:13am

    Re: Art is alive and well - all the good ideas are not taken.

    Calling a DAW operator who's creative mode primarily uses audio sampling and remixing an artist is analogous to calling one who plays the video game WWII Aces a fighter pilot.

    Is there no limit to your ignorance?

    Do you know how fighter pilots are trained these days (and for the last 40 years)?

     

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  18.  
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    Richard (profile), Apr 24th, 2011 @ 11:19am

    Re: Art is alive and well - all the good ideas are not taken.

    Gregg Allman, The Beatles, The Cars, Miles Davis, Bob Dylan, Duke Ellington, Bill Evans, Elvis, Dizzy Gillespie, Benny Goodman, Herbie Hancock, James Horner, Jack Johnson, King Crimson, Kitaro, Michael Kamen, Van Morrison, Muddy Waters, The Pretenders, Nino Rota, Roxy Music, Max Steiner, Hans Zimmer -- 7 decades of popular musicians -- you'll find little if any copying of other people's recordings in their music.

    You'll find a HUGE amount of copying of pre-existing stuff in all of these. Half of it is Pachelbel's canon reworked for a start.

    The rest is just the mechanical skill required to play - which is rather common - and these days redundant.

     

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  19.  
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    DH's Love Child (profile), Apr 25th, 2011 @ 9:28am

    Re: Art is alive and well - all the good ideas are not taken.

    Um.. there are SO many things wrong with your post that my brain got cramped trying to expel them. But as someone whose formal education is in music theory and performance, I can tell you point blank that ALL composers of any music copy from others. Whether they do it deliberately or not, they all copy. I have said in other posts, and I will say to you (assuming you're not the same person...) to name ANY song that you think is 100% original, and someone can find where it has copied something that had preceded it.

    You stated that "Rembrandt, Renoir, Picasso, Pollack all painted portraits, but their art lies in how they painted those portraits, not the subject matter", music is EXACTLY the same. How a composer/performer treats a subject (melody, when it comes down to it) is what distinguishes them from each other. Tom Lehrer did a wonderful illustration of this with the folk song "Clementine" showing how it would have sounded had it been written by Mozart, Cole Porter, a 50's jazz musician, and Gilbert and Sullivan. http://www.youtube.com/watch?v=1b3coO_6MwY

     

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  20.  
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    herodotus (profile), Apr 25th, 2011 @ 10:04am

    This is an argument where I honestly disagree equally with both sides.


    The idea that any work being created today is particularly original is indeed usually quite risible. Most cultural work is overwhelmingly derivative, and people like it that way.


    But the idea that nothing is truly original is every bit as wrong.

    Conlon Nancarrow was original. Harry Partch was original. Anton Webern was original. Charles Ives was original.

    The fact that these people didn't form their ideas in a vacuum doesn't mean that they weren't original, still less could anyone assert reasonably that 'they were just remixing like musicians have always done'. They had unique visions that resulted in extremely distinctive music that could not easily be confused with the music of anyone else (save imitators, of course).

    Of course, this is rarely mentioned in these conversations, because most of the apologists of originality are playing a shell (shill?) game: talking about originality and copyright as if they are naturally related, when in fact they have little to do with each other.

    Originality is usually a curse: a curse that befalls people who are smarter, more far-seeing, or just plain more gifted than other people.

    Such people do exist. I realize that this is a very undemocratic sentiment, but it's true.

     

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  21.  
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    Sam Pler, Apr 25th, 2011 @ 3:37pm

    I realize that this is a very undemocratic sentiment, but it's true.
    Tom Lehrer did a wonderful illustration of this with the folk song "Clementine" showing how it would have sounded had it been written by Mozart, Cole Porter, a 50's jazz musician, and Gilbert and Sullivan.
    The rest is just the mechanical skill required to play - which is rather common - and these days redundant.
    Do you know how fighter pilots are trained these days (and for the last 40 years)?
    Can't come up with something original?
    Just now, I watched a James Brown video on Youtube, and recognized that some of his musical styles were incorporated into Michael Jackson's own styles.
    Either disprove it in a mature manner or don't weigh in at all ;)
    Seriously, I'd like to know.

     

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  22.  
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    killer Hype, May 4th, 2011 @ 1:59pm

    Artist don't care

    I don't know any artist that's sampling music today that really cares that the music they're sampling is legal or not. If it makes their track stronger, they're using it no matter what. If you're professional artist that's focusing on CD sales or music placement opportunities, then it's just a given that you need the proper permission to use a sample.

     

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  23.  
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    Chunk, May 7th, 2012 @ 9:37am

    Re: Art is alive and well - all the good ideas are not taken.

    Half of Bob Dylan's songs are old folk tunes laid out with a different lyrics or a changed tempo. It's ridiculous to use him as an example against sampling. If he had a record player he would have been cutting and sampling. Instead he had a guitar so he played them and made them his own, just like modern samplers. Even Monet built upon the works of those around him. Great art does not exist in a vacuum.

     

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  24.  
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    Judah Spindler, Nov 5th, 2012 @ 2:48am

    A good artist can copy.

    A great artist steals and never looks back.

    The goal of art is to choreograph emotions and in the same way you can't have a monopoly on anger or love, people were never meant to own a sound or a color.

    An artist of any medium should begin every creation with the simple question, "How do I want my audience to feel?"

    Often an artist feels something themselves first and wants to share this feeling so bad they will invest as much time and energy as is necessary to find the perfect way to be understood. As an artist, when you find that solution the source is irrelevant. Art is here to draw us together and is one of the few things that separates man from beast.

    Finally, art is not for sale. If you're worried about royalties and copyright infringement you are no longer an artist, but a craftsman. Any asshole can hold a paintbrush, but just because you do does not make you an artist. The artist may not have or even need the tools that the craftsman invests in to gain an edge over his competitors and sell his product. An artist will draw in the sand with a stick for hours and never once think to photograph it. To a true artist his work is a type of medicine for himself first and if honest emotions were the source of his inspiration, other people will be inexplicably drawn to it. I would be willing to bet good money that it was an artist and not a craftsman who sampled the first track in history.

    When someone sells something they would label art, it is no longer art anymore, but a means to an end. There are thousands of ways in this world to make money and a real artist knows he doesn't need to sell the physical manifestation of his emotions in order to find a path through life. An artist knows that without other people in our lives we would have no reason to feel anything and if we never felt anything we could never create anything worthy of being called art. A love song doesn't belong any more to the man who wrote it than the woman who inspired it.

    If you call yourself an artist, in the interest of the quality of your art, don't do it for a living. One day at the end of time when man stands at the height of his technology, money and many other things will no longer be needed. When people become completely independent from one another and would rather rely on a computer or a machine than another person, art and human expression will be the only things capable of holding a value anymore. One day money will die and art will still be here.

     

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  25.  
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    Anonymous Dude, Nov 30th, 2012 @ 3:01am

    Re: Art is alive and well - all the good ideas are not taken.

    That is just dumb, you are just angry because the old generations didn't have the technology to properly make music using samples.

    Now, to your statements. I saw Elvis in your list of artists...he had plenty of covers from other artists of his time and style. Not to mention, that in your "7 decades of popular musicians with little or no copying" many artists of the same style would all sing each others' songs (COVERS), WHICH IS WORSE THAN SAMPLING BECAUSE THEY DON'T EVEN TRY TO MAKE SOMETHING NEW FROM SOMETHING OLD. They simply said, "Hey I like that song, let me take a crack at it."

    At least sampling, can make a song go from one genre to another, or use the best sounding pieces of various tracks to make a new one. You keep bashing on DAWs but do you even realize that people CAN use them to make completely new sounds, (provided that they have knowledge in sound engineering, and the proper plug-ins) they don't always serve the purpose of sampling. It does take a great deal of artistic creativity to make a great sample track.

    Would you even know how to load up a DAW to make it produce sound, or what components a functional DAW requires? (You will probably Google it real quick to reply with the "How and What" I just asked for). Making music on a computer is much harder work than with an instrument, to an extent. I should know because I play guitar, and its as easy as putting my fingers on frets and strumming. I also work with a DAW, and believe me that is not as easy as playing a physical instrument.

    Every idea comes from somewhere, it stems from the influences you have as you grow (which sings you listened to as a child, what songs were forbidden, what you liked, didn't like, the pop culture of your generation...everything plays an influence). Unless you were isolated from the world, and sat there composing music on your own, it will never be truly original. Want the breakdown of your "7 decades of great music"? It's easy, just pick any great song from each decade, listen to then chronologically, and you can HEAR the change from what was there previously.

     

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  26.  
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    Anonymous Coward, Sep 10th, 2013 @ 11:52pm

    Re: Art is alive and well - all the good ideas are not taken.

    You do know most programs are "virtual instruments" right? They are real instruments just in a computer. Abbey Road was one of the first albums to utilize a Moog synth, which is, guess what? A computer. The greats you reference have all been inspired, samples have a deeper meaning the copying, they're addressing the inspiration directly. Those who have such strict views on art cannot possible call themselves am artist

     

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