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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.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:
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.
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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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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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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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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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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Paul's Boutique Analysis
-C
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Art is alive and well - all the good ideas are not taken.
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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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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Fish...
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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Re: Art is alive and well - all the good ideas are not taken.
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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Re: Art is alive and well - all the good ideas are not taken.
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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Re: Art is alive and well - all the good ideas are not taken.
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Re: Art is alive and well - all the good ideas are not taken.
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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Re: Art is alive and well - all the good ideas are not taken.
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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Re: Art is alive and well - all the good ideas are not taken.
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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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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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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Artist don't care
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