The Insane Chain Of Sampling Rights: How A Folk Song Collector Became A 'Co-Author' On A Jay-Z Song

from the ah-the-ridiculousness-of-copyright-law dept

A bunch of folks have been sending over Ethan Hein’s brilliant step-by-step explanation of how Alan Lomax is credited as a co-author on a Jay-Z song. You have to read the whole thing, which includes video explanations, and this wonderful chart:

But that graphic alone doesn’t do the full story justice. Lomax has nothing to do with Jay-Z’s song… at all. Lomax went around “collecting” recordings of various folks songs, including recording some prisoners at Parchman Farm singing a traditional worksong. But since he recorded it, he got the copyright on the recording (though he shouldn’t have one on the composition). That worksong, “Rosie,” was used as the basis of the song “Inside, Looking Out” by The Animals, which was then covered by Grand Funk Railroad. KRS-One sampled a single guitar riff from the GFR song in his hit “Sound of da Police” (woop! woop!). Notice, at this point, that nothing from the original Lomax song in any way is in the KRS-One song. No matter. Still need to get the license apparently. Then we finally get to Jay-Z, who sampled the line “Watch out, we run New York!” from the KRS-One song in his song “Takeover.” Now we’re even further removed from Lomax (or the original song). Jay-Z sampled just the vocal — not the music (which already had nothing to do with Lomax’s recording). But… hey, thanks to copyright laws, guess who Jay-Z had to credit and pay? Yeah.

As Hein points out:

The copyright maze is no obstacle to Jay-Z ? he has the money, lawyers and connections to clear whatever he wants. But what about up-and-coming or unheard-of artists? What if they want to use samples? Should the most vital art form of our time be the exclusive province of forty-year-old multimillionaires? And grateful as I am to Alan Lomax for recording and disseminating so much great folk music, I remain baffled as to why he was allowed to copyright it. Our creative heritage deserves better stewardship than our current laws provide.

Honestly, I think there’s a strong argument that Lomax shouldn’t be in this chain at all. He possibly could have held the copyright on the sound recording (though, even there, there’s a question of whether or not the singer’s have a stronger claim), but not the composition. And as soon as we get to the Animals version (just one step removed) we’re no longer dealing with the original sound recording, but just the composition, over which Lomax has no legitimate claim. The fact that the claim stuck and has carried on down through this insane chain really is quite amazing and a testament to just how screwed up the world of clearing samples has become today.

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Comments on “The Insane Chain Of Sampling Rights: How A Folk Song Collector Became A 'Co-Author' On A Jay-Z Song”

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73 Comments
Anonymous Coward says:

As soon as KRS-One gave Lomax a credit, the rest of it is history. You don’t have to go “all up the chain” to figure it out.

Credit: Songwriters: L. PARKER, R. LAMAY, LOMAX, CHANDLER, BURDON

You don’t have to go any further than that. The “chain” is just some FUD you are adding to try to make a point. Nice try Mike, but a failure.

Anonymous Coward says:

Re: Re: Re:

Where did you get that from?

The Jay-z song directly samples the KRS-One song, and Jay-Z agreed to credit Lomax as a co-writer of his new “song” now as part of the clearance process. I would suspect it is done so that he pays little up front, but Lomax can profit on the back end with residuals and such.

My only point is that Mike is creating a bunch of FUD again. Really there are only two things on this chart, KRS one song and Jay-z song. Everything else is put there to add smoke and mirrors to the discussion.

If Lomax wasn’t a song writer on the KRS-one song, the chart might have more validity. But because of his credit, we don’t have to go back to “Rosie” to know what is going on. Mike only does that to create outrage where none exists.

It’s FUD, it’s reaching, and it’s typical Techdirt bullshit.

Anonymous Coward says:

Re: Re: Re:2 Re:

Umm, again, Mike’s chart is misleading.

Ignore everything above KRS-One. As soon as Lomax became a writer on that song, the rest of the chain becomes meaningless.

Jay-z samples KRS-One, and gets the rights to do so.

As for “dead lomax”, you can consider “lomax or heirs” in lieu. It comes to the same thing.

As I mentioned, a song writing credit on the Jay-Z song would likely be a good way for them to get paid “on success” of the song, rather than an up front fee. There isn’t much more to it.

Mike’s graphic is misleading because it adds in all sorts of things that are just not relevant to the discussion. He wishes they were relevant, but they are not.

Another AC says:

Re: Re: Re:3 Re:

Except you’re conveniently ignoring why lomax is an author of the KRS-One song, which is nonsensical copyright law.

KRS-One was forced to name him as a co-author in the same way Jay-Z is forced to. You use the word ‘choose’ where the more appropriate word is ‘forced’.

I believe you’re the one spreading the real FUD here?

Anonymous Coward says:

Re: Re: Re:4 Re:

I know, right? That’s so fun about arguing with this DB, he *always* ignores certain elements of whatever is posted, commented whatever. I’m beginning to think that anything that even remotely undermines his gestalt he just pretends doesn’t exist.

When pressed, he’ll either call the presser names, strike a superior and condescending tone, say the fact/argument is irrelevant (when it isn’t), continue to deflect, or all of the above.

He would make (or is) a fantastic politician.

btrussell (profile) says:

Re: Re: Re: Re:

The chart shows why Lomax had to be cleared. Is that FUD?

Otherwise, tell us why Lomax had to be cleared.

It is looking to me like I can go to my friends house, record his sons band, and I have copyrights to that recording? I can monetize it because I pushed a button?

In 100 years I will still have people crediting me as “songwriter?”

taoareyou (profile) says:

Re: Re: Re:2 Re:

Not only do you have copyright on the recording of the song, but apparently you will also become a co-author of the song and be able to expect credit for any future uses of it!

It doesn’t matter that you took no part in writing or performing the song. You recorded one performance of it. Now it’s partly yours for not only your lifetime, but also the lifetime of your estate. ๐Ÿ™‚

saulgoode (profile) says:

Re: Re: Re:3 Re:

So if I videotape a troupe’s performance of Romeo & Juliet, I not only gain copyright on the recording, but me and Bill Shakespeare now become co-authors of the play? How cool! (for me, anyway)

Not to mention that the play should now no longer be considered in the public domain. I wonder if I can’t also retro-actively sue people who’ve performed or derived from the play prior to my acquiring co-author copyrights? Who knows?! It’s not as though copyright law should be expected to make sense.

E. Zachary Knight (profile) says:

Re: Re: Re: Re:

Here is the thing, Lomax is listed as a song writer for “Sound of da Police” as well as “Inside, Looking Out”.

The problem is that his only connection to either of those songs is a recording he made of a folk song. He did not write the folksong, only recorded it. So what right does he have to be listed as a writer for any songs that are derived from his recording?

PaulT (profile) says:

Re: Re: Re: Re:

“Mike is creating a bunch of FUD again”

…and yet again you fail to understand the term and use it in its correct context. Yet again, you present a bunch of bare assertions – some of which actually don’t contradict anything Mike said at all – and smugly present them as if they’re the truth. Yet again, you type words but say absolutely nothing.

“If Lomax wasn’t a song writer on the KRS-one song, the chart might have more validity.”

So why are you attacking Mike, rather than the person who made the chart? More desperate reaching to attack Mike for anything possible rather actually have a discussion, I see. Pathetic.

Anonymous Coward says:

Re: Re: Re:2 Re:

You said: “So why are you attacking Mike, rather than the person who made the chart? More desperate reaching to attack Mike for anything possible rather actually have a discussion, I see. Pathetic”

Me: Paul, we have been over this before. Mike is presenting the chart as fact, and facts that he supports. I don’t care if Mike made the chart or some other knob did, it really doesn’t matter. Mike chooses to present it, even though it is clearly misleading, and adds in plenty of stuff that just isn’t required to show what happened.

What is pathetic is that you are so busy sticking up for Mike that you cannot even take a second to consider what I am saying. Please lighten up a bit, okay?

Mike put it up because it creates FUD (fear, uncertainty, or doubt) about the subject. It makes people fear the music industry, be uncertain about rights, and doubt the honesty of the people involved. FUD.

What does FUD mean to you then?

E. Zachary Knight (profile) says:

Re: Re: Re:3 Re:

You are conveniently overlooking the WHY Lomax is credited for the fact that he is.

Mike isn’t disputing the fact that he is credited. Mike is disputing the idea that he needs credited at all.

If Lomax had written and/or co-written any song along that change, the argument would be far different. Yet it remains that he did not write/co-write any song in that chain but is still credited as a co-writer.

PaulT (profile) says:

Re: Re: Re:3 Re:

“Mike is presenting the chart as fact, and facts that he supports.”

Mike is presenting evidence, posting it in context and linking back to its original source. More than I’ve ever seen you do.

If said evidence is not factual, the correct thing to do would be to refute it, preferably linking to your own evidence of the reasoning why. Instead, you just insult the author, and present no real reasoning as to why he’s wrong to comment on the material presented.

Besides which, if the chart shows what Mike discusses (due to filtering at work I can’t currently view it), then your comment is irrelevant anyway. You’ll notice that Mike doesn’t just discuss the last step, which is the part you seem to object to. He discusses the entire thread from Lomax’s original recording to Jay-Z’s song and presents his case as to why Lomax’s recording probably shouldn’t have had the credit at all at this point. But you ignore all of this in favour of attacking Mike for evidence he did not create.

Again, the argument is not that by sampling KRS-One’s song that his song’s credits should not have been transferred to the Jay-Z song. The argument is whether those credits should even have been present since none of Lomax’s recording is present in KRS-One’s song. Why do you not address any of this? Why is the history of ownership “smoke and mirrors” to you?

“it is clearly misleading”

Then discuss why, and present your reasoning like a sensible adult. You lose a lot of credibility when half of each post is a personal attack on the author or the blog, every single time.

“What is pathetic is that you are so busy sticking up for Mike that you cannot even take a second to consider what I am saying. “

I’m considering exactly what you are saying, and noting that as in every thread you comment on, you deliberately try to redirect the argument into an area you can defend with blind assertions, and personally attack Mike while doing so. Try presenting an argument without doing these things, and we can have an actual discussion. Continue attacking and misrepresenting, and I will react to that.

“What does FUD mean to you then?”

Well, first of all, it has to be a distortion of the facts (or an outright lie). You have yet to show why this might be a distortion, other than to note that the final step seems kosher as a simple transfer of song copyrights (something, which if accepted as truth, does not affect Mike’s overall narrative one bit, from what I can see).

You might then consider telling us why reporting on a piece of evidence that seems interesting to you counts as FUD, and why we should take the evidence-free word of an AC above the evidence in front of us. Again, sensible, reasoned and verifiable refutations of any evidence or opinions made here are quite welcome. You simply don’t make them.

Anonymous Coward says:

Re: Re: Re:4 Re:

Paul, the evidence isn’t in question as to it’s factual nature, it is in question as to it’s relevance.

Since Lomax is credited on the KRS-One song, the stuff that came before it isn’t really relevant to the Jay-Z song. Simply put, if he was not credited on the KRS-one song, he wouldn’t be on the Jay-Z song either. That makes the rest of it less than relevant.

Now, the graphic also adds in a lot of useless information (and duplicated it by putting first a band name and then feeding them to a song, adding more boxes and more confusion). The David Bowie song Fame isn’t particularly relevant to Lomax, is it?

The “insane chain” really isn’t all that insane, it’s rather simple. It only looks insane when you toss a whole bunch of non-relevant information onto the page to cause confusion, you know, FUD.

Even Mike knows that most of those links aren’t really relevant, and anyone spending a few minutes can figure out why Lomax has a credit. Heck, someone wrote a book about it, about creative licensing. It really isn’t hard to understand, unless you are trying very, very hard to not understand it to make a point.

E. Zachary Knight (profile) says:

Re: Re: Re:5 Re:

Of course Mike knows that most of the links are irrelevant. That is why he ignored everything that wasn’t a “direct” link back to Lomax.

The fact that Lomax is even credited on the KRS-one song is part of the whole boondoggle. He provided nothing to that song yet was credited. The only reason he was credited in the KRS-one song was because he was credited in Inside, Looking Out. The only reason he was credited for that was because someone at the time was afraid of potential copyright violations from someone who didn’t even write the song.

This makes sense to you?

Anonymous Coward says:

Re: Re: Re:6 Re:

Here’s the deal: If they think that this guy holds the rights on their “raw materials”, they need to get a license from him. All that Lomax (and his heirs) have done is take a song writing credit in lieu of payment. What happens in each case is that they can leverage that in the future, nothing more.

It’s a choice people are making: Pay money now, or give a song writing credit and money later, without consider that it puts Lomax (and heirs) in a position to re-apply this the next time the resulting work is sampled forward again.

It really isn’t a boondoggle, it’s just smart business moves. The only one relevant for Jay-Z is the KRS-one song. It pretty much ends there.

Anonymous Coward says:

Re: Re: Re:7 Re:

And you keep not addressing the thing everyone is reacting to: why, regardless of the business value to either party, does it make sense for a song credit to be given to someone that had absolutely no direct impact on the resulting song.

He might as well credit whoever created the first instrument or vocalized the first “musical” note.

Loki says:

Re: Re: Re:5 Re:

Since Lomax is credited on the KRS-One song, the stuff that came before it isn’t really relevant to the Jay-Z song. Simply put, if he was not credited on the KRS-one song, he wouldn’t be on the Jay-Z song either. That makes the rest of it less than relevant.

Again, nonsense. Yes, the stuff that came before is not relevant, but not because KRS-One gave credit. It is irrelevant because what came before had nothing to do with what Jay-Z borrowed.

But fine. KRS-One gave credit. The fact is that KRS-One should not have needed to give credit either. What he borrowed had nothing to do with Bordun and Chandler, much less with Lomax. It was a creation of Grand Funk, so if anyone needed credit, it most likely should be them.

It can even be quite reasonably argued that even Bordun and Chandler didn’t need to give credit, as they merely adapted a common folk melody the same way Lomax did (regardless of whether or not they initially heard it through Lomax).

It’s not just the fact that Jay-Z should not have to pay Lomax, it’s that NONE of these people should really have to pay Lomax, much less someone four “levels” deep (Lomax – Bordun/Chandler – Grand Funk – KRS-One – JayZ).

Matter of fact, I’ll even go one better. If we argue that Lomax needs to get paid by the Animals because it was his derivative work they based their work off of and not the original, it still means that none of the other need to pay him since each “layer” based their work off the derivative, not his “original”.

PaulT (profile) says:

Re: Re: Re:5 Re:

“Since Lomax is credited on the KRS-One song, the stuff that came before it isn’t really relevant to the Jay-Z song. “

No, it’s 100% relevant. A man who simply recorded a folk song is credited on a new song that uses 0% of his recording. The chain of events that led to that is extremely important.

“anyone spending a few minutes can figure out why Lomax has a credit”

Which is exactly what Mike details and criticises. I’m sorry if it doesn’t fit your preferred corporate narrative, but the criticism is valid.

Ben in TX (profile) says:

Re: Re: Re:4 Re:

Excellent post Paul.

I love how you and a few others keep calling AC out for ignoring the parts which he doesn’t agree with, yet he continues to do the same in his responses without ever denying that’s what he’s doing.

Keep on slaughtering him. I have enjoyed this thread… too bad AC will keep on trying to redefine FUD and ignore facts which don’t fit into his worldview.

PaulT (profile) says:

Re: Re: Re:5 Re:

Thanks *blush*.

At this point, I’m not sure if he’s trolling or if he really believes what he says, but I do have to poke at the obvious flaws in his so-called logic in case the less informed actually think he has a valid point. I do wish we had a reasonable, informed person to bounce ideas off though. Mike is not infallible, and there’s lots of points to discuss. AC, ootb and darryl are unfortunately the major people we have to discuss with on most occasions, and they are just pathetic contrarians. A shame.

Atkray (profile) says:

Re: Re: Re:3 Re:

Actually FUD is fear, uncertainty & doubt. It is a combination of all 3.

April 12, 2008 Urban Word of the Day
Fear, Uncertainty and Doubt. Also known as scare tactics, either accomplished by threat or making the opponent doubt his standpoint. Not only used in lawsuits, but also in politics and military propaganda.

The company’s FUD spreading caused many supporters to abandon their cause, except for the few that could see through its scaremongering propaganda.

So yeah you got it wrong.

again.

PaulT (profile) says:

Re: Re: Re:5 Re:

FUD is a relevant term where the information provided is misleading, misrepresented or false, e.g. SCO’s attempts to paint the Linux development process as prone to infringement (later proven utterly false).

While fear, uncertainty and doubt may be spread on this site, it’s not FUD as the information provided is usually completely true.

Anonymous Coward says:

Re: Re: Re:

Again, without the credit to krs-one, there would be no credit on the jay-z song. Jay-z doesn’t give a crap about “rosie” or slave songs. Their only issue is that Lomax is a credited writer of the krs-one song. That is all they are dealing with.

It would appear mostly that Lomax (and his heirs) have wisely chosen to take song writing credits over direct payments for samples, which is a good way to propagate through the system. There really isn’t much more to it than that, it isn’t proof of some weird ass conspiracy.

Jay (profile) says:

Reminds me of something...

Link

SP: Why would corporations hang onto all these old copyrights if they are going to make it so hard to use them?

NP: Well, there’s a good answer to that. The corporations that hold these copyrights are media companies that also control most of the new media that comes out. Estimates vary, but it’s said that 98 percent of all culture is unavailable right now because of copyrights. So the reason they hold the copyrights isn’t because they want to get paid, it’s because they don’t want all the old stuff competing with the media stream that they control now.

Isn’t this the crux of the problem? Hell, Lomax died in 2002 as per the wiki. So who did Jay-Z clear the rights to? And who got paid?

Spaceman Spiff (profile) says:

Lomax and the US Library of Congress

Lomax and wife spent most of their careers doing field recordings and such of many seminal American folk music artists, including Woody Guthrie (I was listening to their LOC recordings on a recent cross-country road trip). Does this mean that all such recordings are in the Public Domain? If so, does that mean that all derivative works are also? Inquiring minds have to ask…

Loki says:

Nonsense and completely misleading.

Credits for KRS-One song (as you mentioned): L. PARKER, R. LAMAY, LOMAX, CHANDLER, BURDON

Credits for Inside Looking Out: J. Lomax, A. Lomax, Burdon, Chandler.

Notice Eric Burdon and Bryan James Chandler were credited in the KRS-One song (I have no idea why it wasn’t necessary to credit John Lomax, or maybe he was and the source I used just doesn’t list him) as well as Lomax.

Notice Alan Lomax is credited on Inside Looking Out.

Therefore it IS relevant to include the entire chain and not just the previous stop on the ride.

So we follow the chain:

Alan Lomax records a common folk song (and receives some questionable copyrights in the process).

Eric Bordun and Bryan Chandler use that melody as the basis for their song (and thus have to credit Lomax).

Grand Funk Licenses the song for a cover, adds a bit of their one material.

KRS-One samples the material Grand Funk added, but due to the retarded structure of “the rules” he doesn’t have to credit Grand Funk (at least not that I found). He does, however, have to credit Bordun and Chandler (who had nothing to do with the Grand Funk part) and by proxy Lomax (who had even less than nothing to do with the Grand Funk sample).

Jay-Z samples KRS-One*. The part sampled has nothing to do with the Grand Funk song. The Grand Funk sample had nothing to do with the original Animals tune. The Animals tune has questionable origins to the Alan Lomax tune (they could just as easily have argued that even if/though they heard the song via Lomax first, they adapted the source material just as he did**). And Lomax (or his estate) get paid why? That this even makes sense or seems logical to anyone would make me seriously question their sanity.

I in know way see this as FUD in any way shape or form.

*I was not able to find a list of credits for Takeover other than Jay-Z, so I don’t know who else had to be credited. KRS-One? Bordun and Chandler? The Doors for the sample of Five To One?

**Of course this would assume bands, especially back in the Animals time, had much control in the process. The labels most certainly would have fought such efforts to cut them out of their share of fees(which is really why these clauses are there in the first place).

Anonymous Coward says:

Re: Re:

It’s FUD because it’s attempting to create misdirection on a simple problem.

Grand Funk only made a performance, didn’t write the song. They can license their performance, but they cannot license the song.

There is no retarded structure here. It’s only retarded people who want to make things appear complicated and scary that are making it look that way.

steve says:

Insane chain

@saulgoode – my understanding is that unless you create a new and original work from your recording of a Shakespeare play then no, you can’t claim co-authorship. But, you could copyright your documentary of a performance of the play, so that ayone using your film would need your permission, and any fee you care to negotiate, to use it.

My reading of this issue is that fingers are being pointed at the wrong people. Once the Lomaxes had established their copyright with the U.S. Copyright Office, any use of the copyrighted material subsequent to that would most likely have been handled by the music publisher (without researching, that might have been both/either Lomax, or a third party, or an entity within the record label or label group). The decision to assign a writing credit on the Animals’ record would have been based on a negotiation between their publisher and the publisher of “Rosie.” And so on, down the line.

Often, if only a sample is used, there is simply an acknowledment of that fact in the record credits (“XXX includes a sample from YYY by ZZZ” plus publishing and other details). However, if a large enough sample is used, or if a large chunk of a previous song is reproduced (in a new recording by the second artist) then there may be a decision — as a result of a negotiation between the original and new publishers — to assign a songwriting credit. An example would be “Bitter Sweet Symphony,” by the Verve. They originally licensed a short Rolling Stones sample, were deemed by the original publisher, Abkco, to have used too large a chunk, and were thus forced into giving over 100pc of the writing credit — by the publisher. Jagger and Richards were not involved, just as Lomax was likely not involved in those original, or subsequent, negotiations.

The claiming of the original copyright by A. & J. Lomax is indeed dubious, and much has been written on that subject, but once the copyright was filed the granting of the right to cover or sample that song would have followed standard music publishing industry procedure.

Blame the industry, and blame Congress for passing the laws that created this situation. A good portion of that blame also lies with Walt Disney, whose company has repeatedly lobbyed — successfully — for extensions to these rights, well after the deaths of the original rights holders. And you can be sure those company lobbyists were supported by significant numbers of lobbyists from plenty of big media companies…

btrussell (profile) says:

Re: Insane chain

“Blame the industry, and blame Congress for passing the laws that created this situation. A good portion of that blame also lies with Walt Disney, whose company has repeatedly lobbyed — successfully — for extensions to these rights, well after the deaths of the original rights holders. And you can be sure those company lobbyists were supported by significant numbers of lobbyists from plenty of big media companies…”

Don’t forget Sonny Bono, Don Henley…

Where were the artists when CDs did not come down in price for the consumer?

Where were the artists when it got super easy and cheap to distribute product yet consumers were paying the same still?

Where were the artists when industry and congress were passing laws to screw fans?

Point fingers all you want, but, if you aren’t part of the solution, you are part of the problem.

Still the same old song and dance. The poor, poor, artist.

volthar (profile) says:

copyrights & Lomax

Nobody here knows anything about copyright law. The recording of the song was not what was copyrighted. It was the published book in which the song appeared, with music arranged by the Lomaxes. The people who copyright the songs are not the recording companies, but the music publishers, who are a special industry with special laws, dating from the sheet music era. They have the right to something called “mechanicals” which means they get to claim a few cents for every copy of sheet music, or physical recording, whether sold or not. This is where the real money in music publishing is.

The music publishers get half the royalties the artists and managers get the other half. You can see how this works in the wikipedia article on Wimoweh.
How Lomax got listed on the “artists credit” — not as writer as erroneously stated here, but as collector and arranger is dealt with at length in John Swed’s new biography of Lomax. You folks should do your homework.
Note: Szwed writes “Collectors copyrighting folksongs was not unusual at the time. Carl Sandburg, Zora Neale Hurston, Bela Bartok, Cecil Sharp,Percy Grainger, Ralph Vaughn Williams, and even Lawrence Gellert, the most politically leftist of all the collectors, all filed claims for copyright, though none of them shared earnings with the singers.” Alan did share his earnings with the singers from whom he collected.

Szwed also says that neither Alan Lomax nor his father ever filed claims for copyright on individual songs. This was done by a large music publisher, whom Alan Lomax sued in the 1950s, winning a partial settlement in which he was allowed a portion of the author’s half of the earnings (contrary to his wishes) as collector and arranger. He would have preferred to have had publishers’ credit. Thus, Lomax is being excoriated today for winning a settlement in a lawsuit with a large corporation

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