Yesterday we wrote about rapper Lord Finesse suing fellow rapper Mac Miller because Miller released a free song that used the same beat that Finesse used (which was itself based on a sample from jazz musician Oscar Peterson). Miller, of course, has become a phenom, being the first indie artist to top the charts with a new release in over a decade. The song in question, Kool Aid & Frozen Pizza, wasn't on Miller's album, but was just released for free online, and uses the same beat from Finesse's 90's era hit Hip 2 Da Game. And now Finesse is suing for $10 million.
In our post on the subject, we pointed to a song that Dan Bull put together, using the same beat, but as commentary/parody of this legal fight. The song highlights how hip-hop has a long history of building on the works of others, and does a nice job laying out the history with Oscar Peterson's sample being used first. And... this morning Dan Bull logged into his YouTube account to discover that Finesse's lawyers had issued a takedown on his song.
This is a clear abuse of copyright law to stifle criticism of his lawsuit. First of all, it's not at all difficult to find a lot of other songs that use the same beat with people rapping their own lyrics over them... and they all have been left up (and have been up for a while). Here are just a couple examples -- both of which have been up for over a year. And, oh yeah, even Mac Miller's own version is still up on YouTube. So basically, either Finesse and his lawyers just so happened to take down the one video that is critical of the lawsuit... or they're using copyright to stifle criticism and free speech.
Furthermore, it seems like there's as pretty strong argument for fair use (or fair dealing in the UK) for Dan's video. It's clearly using the music to comment on the lawsuit and the fact that it involves this beat. It's difficult to discuss the nature of the beat without actually being able to use the beat, as Dan did. In many ways this seems like a classic case of what fair use/fair dealing was designed for. The beat is integral to the criticism and commentary that is the whole point of the song, and is used out of necessity.
Of course, even more amusing is that the entire point of Bull's song was to tell Finesse just how bad legal action like his lawsuit against Miller really looks -- and instead of getting the message, it appears that Finesse and his lawyers want to look even worse, using the same sort of "copyright as censorship" effort that made Bull call them out in the first place.
Okay, this one is just crazy. You hopefully already know about Mac Miller. We wrote about him last year, as he was the first truly independent artist to release an album that topped the charts in over a decade. Historically, the charts are absolutely dominated by major label acts, because the major labels pay millions of dollars to "break" a record. Of course, part of how Miller became so famous is the same way tons of new hip-hop stars are rising up: by releasing free mixtapes. Even as some folks insist that giving away music means no new rap stars, you can make a pretty big list of new rap stars who came on the scene by releasing music for free -- and Mac Miller did it better than just about anyone. In fact, a few months ago, I was talking to a big time record label guy (very closely associated with the RIAA), who told me that Mac Miller debuting at number one was one of the three biggest stories of 2011, and showed that the industry was really about to embrace new models.
And, of course, it's quite common for those mixtapes to involve some sort of infringement, but generally no one has a problem with this (unless you're clueless legacy entertainment industry players), especially since these mixtapes are all given away for free, and generally do help promote those other works. It's really become the "new radio" in hip hop.
But there's always someone who lets jealousy get in the way. That appears to be the case with Robert Hall, better known as the rapper Loud Finesse, who had a hit in 1995 called "Hip 2 Da Game." You may remember it:
It turns out that one of the songs Mac Miller released for his mixtape was called Kool Aid & Frozen Pizza, which has him rapping over the same music track:
The lyrics are entirely different, but the music is obviously the same.
Note, again, that this song was given away for free in a YouTube video and mixtape. It was never sold. It's not on Miller's album. But, jealousy rears its ugly head and Lord Finesse has now sued Miller and his label, Rostrum, and the popular mixtape site DatPiff.comfor $10 million -- and the fact that this is all about jealousy is pretty clear from the details of the lawsuit. It points out that Miller got famous, in part, because of his mixtape and thus Finesse seems to think that Miller needs to pay him for getting famous. Once again, he's being sued for $10 million, because of a song which he never sold.
Of course, if you know anything at all about hip hop, you know that its roots came from rappers building on the works of others, taking rhythms and beats and putting new lyrics over them. What many consider to be the very first popular hip hop song, "Rapper's Delight," by the Sugarhill Gang, came about when they rapped over "Good Times" by Chic.
So, you might wonder, does Lord Finesse have a history of building on the works of others? Glad you asked. Why yes, he does. He's widely sampled other artists. Oh, and the music in Hip 2 Da Game? You guessed it. Sampled. It's from Oscar Peterson's excellent jazz song, "Dream of You." Tragically, there doesn't seem to be a YouTube version of that up, but if you have Spotify, you can listen to it here:
Hip hop artist/commentator on culture and copyright, Dan Bull, found this whole situation pretty ridiculous and decided to do what he does best: write and perform a song about it. And, better yet, he did so using the same musical backing track from Finesse... er... Peterson.
This is actually interesting at a variety of levels (and equally unfortunate at a number of levels). The mixtape culture and building on the works of others is really pretty core to the hip hop world. There's a mostly unspoken agreement just within the culture that as long as you're not selling the tracks, it's encouraged to take the rhythms from another and build on it. Going against those social norms which have been pretty strongly developed over the past decade plus, is really hitting back against the basic rules that the community has established for itself, outside of what copyright allows.
In fact, the hip hop mixtape/blog world has been fascinating to watch over the past few years, in part because it actually shows how cultural norms can often set the rules for how these things work, without having to fall back on copyright laws at all. Basic social pressure can often keep most people in line. But when one breaks those social norms -- whether because of jealousy, or because they think there's a quick profit to be earned -- it can come back to haunt them.
That said, there's actually an interesting tie-in to another story we wrote about recently, discussing innovation vs. permission as frameworks for how progress should occur. While we were mostly talking about technology/entrepreneurial innovation, it clearly applies to creativity as well. All sorts of music creations came about because of innovation without permission. Soul music, jazz music, hip-hop and rock-and-roll all exist basically because of people deciding to innovate by building on the works of someone else without permission. Trying to shove a permission based system into that creates massive chilling effects and limits the kind of great music that can be created. Copyright is supposed to be about promoting progress, and yet, once again, it's used to hold it back.
The BBC has a great short video feature looking at Odd Future, the massively popular (and equally controversial) rap collective, and their merchandise-focused approach to the music business. Odd Future has always been an interesting case study in music: their graphic content prevents them from getting much radio play, their career was started and built online, and they give away all their music (20 albums worth, at this point) for free. But they have been making money since the beginning by selling homemade merchandise directly to fans, offering lots of limited edition shirts and one-off products. Now they've combined that approach with their highly successful tours, by launching pop-up merch shops in every city before the show. They do meet-and-greets at the shop where they take photos and sign autographs. The fans love it—they were in Toronto recently, and the line for the pop-up shop stretched several blocks, and according to the BBC they are moving unique hand-made t-shirts at £100 each.
Tour merchandise has always been popular, but Odd Future takes it to the next level (though they're not the only artists to experiment with this kind of thing). Rather than just selling cheap t-shirts at a massive markup from a table in the venue, they turn it into a whole companion experience to the show, and offer merch that's actually one-of-a-kind. The Odd Future kids are naturals at connecting with fans, and this shows how they also combine that with a bundle of different reasons to buy. Well-known for shirking the establishment in every way imaginable, Odd Future doesn't seem to care too much about record sales, and they definitely don't care about piracy or competing with free—they've found a new way of doing things, and it's working.
Rikuo: Thing is, I've learned to be wary, so I click on Terms and Conditions, to see what their definition of unlimited is...only to be met by an error page saying my IP address had been blocked silverscarcat: Well... That sucks. :( ... Whut? Water balloons? ... Seriously?! I think I need to get some, fill them with oil-based paint and throw them all over that school. Rikuo: huh...was finally able to read the Terms and Conditions. Nowhere is mentioned a hidden definition of unlimited Christopher Best: Now what did I miss on DoJ and Department of Edu? Don't see what article (if any) you guys are referring to... silverscarcat: Well, since you guys can't seem to find it... http://legalinsurrection.com/2013/05/the-fire-the-government-has-mandated-speech-codes-on-all-campuses/ Mike Masnick: we have an article upcoming about that, which ssc appears to be undermining by revealing to all of you. ;) Rikuo: DEATH TO THE HERETIC /sarcmarc Christopher Best: Wow, just when I thought there was no way to make college campuses more intolerant... silverscarcat: Well, Mike, I'm glad that you had it in the upcoming posts, I called my senators and rep today about it right after I read it. Jay: Wow... Some Guy created a new form of acronym for the DMCA. Automated Rights Trampling System. I think I'll use ARTS from now on. silverscarcat: Well, this is so true. Someone needs to tell their Senators that they're fulfilling what Bin Laden said in 2001. "I tell you, freedom and human rights in America are doomed. The U.S. government will lead the American people in — and the West in general — into an unbearable hell and a choking life." - Osama Bin Laden, in sole post 9/11 interview dennis deems: http://arstechnica.com/security/2013/05/reporters-use-google-find-breach-get-branded-as-hackers/ Jay: @Dennis It seems that hacker has become the new witch hunt... silverscarcat: BURN THE WITCH! Man, AJ has lost his marbles. Imagine if the law was not only working against DRM but paywalls... bob and AJ would be foaming at the mouth.