If Entire Books Can Be Sampled, Why Not Songs?

from the stand-up-for-free-expression dept

Recently, there's been some talk about David Shield's new book, Reality Hunger, which is getting some press attention for the fact that most of the book is "plagiarized." Or, rather, the book is derivative. It's a literary collage, of sorts, with only an appendix at the end that links the works back to the original authors -- and that appendix was put in against Shield's original wishes, but on the command of his publishers' lawyers. Of course, as many have noted, even the idea is derivative. Three years ago we wrote about Jonathan Lethem's wonderful Harper's article, The Ecstasy of Influence, which, again, was a collage of other people's works.

And, of course, this follows on the recent "controversy" over a German teen who had done something similar, but did as Shields originally wished, in that she chose not to directly credit the sources in the book.

While some are confused by all of this into thinking that the entire concept of "authorship" is at risk -- many are realizing that's utter hogwash, and this actually shows how unique forms of new content creation are thriving.

However, there is a separate issue that's worth pointing out. While there is some controversy over these sorts of books, we're not hearing about lawsuits -- and we're definitely not hearing about demands for licensing fees. Yet, in the music world, thanks to a series of highly questionable legal rulings, it's impossible to do the same thing. If you make a collage in music, you have to clear every sample or risk getting sued. In some cases, such as Girl Talk, the lawsuits haven't come, but plenty of sampling lawsuits are still filed, and many in the music business want to clear every sample.

But this vast split between the process of creating a remixed/collage book and a remixed/collage music is reasonably upsetting many. Copycense points us to a manifesto, refering back to the discussion on Reality Hunger, suggesting that musicians should stand up for their rights to make derivative, transformative works without having to pay for every sample -- just as what's happening in the literary world:
Rather than take offense however, I'd like to turn the tables.  Indeed what Shields has done is art, and should be treated as original despite being a derivative work.  Where this is accepted, and every day it remains on the market supports its acceptance, then all other original derivative works must be held to the same standard.  The archaic practice of extorting sample based artists for their profits on the legal basis of treating their art only on intellectual property terms, must be out eliminated.  If an author is legally protected in their use of derivative works by simply citing the reference to their usage, there can be no double standard when it comes to musicians.

And so I put forth to sample based producers, and the labels who support them, it's time to take this issue to task.  End your relationships with the sampling clearing houses.  Create your art without the fear of legal repercussions.  Release it for profit, with your sample sources clearly stated.  At first there will be legal cases brought up, but DO NOT BACK DOWN.  You are on the side of the right, and it is only by pushing forward that the laws will change to reflect that.  I believe there are lawyers and activists who need to, as well as those who already do, stand with us to take this as far as it needs to go, but it begins with us the artists not being afraid to stand up for what is right.
Of course, some might argue that it's not necessarily that this is legal in the literary space, just that it's rare for a lawsuit to be filed over such appropriation. Tragically, that's not the case in the music business. But, on the whole, I do agree that it's high time that the courts fix what they got so very, very, very wrong on the legality of de minimis copying of music -- and one way to make that happen is to get musicians who sample to stand up for their rights to sample without having to pay a toll.

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  • identicon
    Aaron, 26 Mar 2010 @ 10:17am

    I've always wondered...

    If it's legal to "share" or "make public" a few seconds of a song as fair use, how is that any different than what p2p does? It's pretty rare to get more than a few percent of a whole file from any single source, so all they are doing is sharing a few seconds of each song with each other.

    All the software does is piece together a few seconds from a bunch of sources into one unit.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Mar 2010 @ 10:18am

    Collage? In the musical arts? How absurd! Sure, it works for every other artform, but collage in the musical arts?

    The musical arts are so much more important than all those other forms of art. It deserves special protection, especially in the age of the remix. Which is stealing! Precious notes and boops and whistles!

    "The origins of collage can be traced back hundreds of years, but this technique made a dramatic reappearance in the early 20th century as an art form of novelty."


    Collage is older than the term intellectual property which used to be called intellectual privilege.

    But what do I know? I'm only an artist and not a lawyer so I guess my opinion doesn't count as much.

    reply to this | link to this | view in chronology ]

    • identicon
      SoulChorea, 26 Mar 2010 @ 12:22pm

      @ Anonymous Coward

      "the musical arts are so much more important that all those other forms of art."

      Are you being sarcastic? I hope you're being sarcastic.

      reply to this | link to this | view in chronology ]

    • identicon
      DJ, 26 Mar 2010 @ 12:33pm


      "especially in the age of the remix. Which is stealing!"

      a couple of definitions for the ignorant (rhetoric intentional).
      Steal. verb. to appropriate (ideas, credit, words, etc.) without right or acknowledgment.

      Plagiarize. verb. to take and use ideas, passages, etc., from (another's work) by plagiarism.

      Plagiarism. noun. the unauthorized use or close imitation of the language and thoughts of another author and the representation of them as one's own original work.

      A key word that people get caught up by is "unauthorized". What does that mean? To answer that question you must furst ask another: "Whose work are you copying?". The answer to that is: the artist's. So, get a hold of the artist somehow (not hard to do these days) and ask permission. Ding, you are now authorized.
      Also, if you acknowledge that a song is not your orignial work, but a remix of said artist's original work...

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Mar 2010 @ 11:38am

    Sure, I agree that sampling is fine but I also believe that you have to credit the original authors. Perhaps this can be done in the meta-data of the song itself.

    But please do not make the mistake of saying that plagiarizing a book is "sampling". Copying and pasting large amounts of text and claiming the work to be one's own is NOT making a derivative work, it's fucking plagiarism. Furthermore, simply stating "the work of the following authors was used in this book" is not crediting the authors. Every reference has to be properly cited with footnotes and quotes and such.

    This reality hunger nonsense was a dipshit who copied some stuff and then made up this complete bullshit about "sampling" and "the book being art" when she got caught.

    reply to this | link to this | view in chronology ]

    • identicon
      DJ, 26 Mar 2010 @ 12:40pm


      "simply stating "the work of the following authors was used in this book" is not crediting the authors."

      See I've never understood why not. You are blatantly saying "This isn't my work. These aren't my ideas."
      Plagiarism (as above) is trying to pass it off as your own work, when, clearly, you're not doing that.

      Citing EVERY SINGLE reference is just tedious bullshit to allow the original artist the ability to say "See? they used THAT part!"

      reply to this | link to this | view in chronology ]

  • identicon
    SoulChorea, 26 Mar 2010 @ 12:24pm

    @ Anonymous Coward (again)

    Not sure if you're familiar with sampling...sure, a person CAN copy/paste a musical sample, but I don't think that's what the writer of this article is referring to. He's talking about something much more creative, which involves much more than copying/pasting.

    reply to this | link to this | view in chronology ]

  • identicon
    Jake, 26 Mar 2010 @ 12:32pm

    Direct credit is certainly the courteous thing to do for something like this; to do otherwise smacks of trying to pass it off as totally original rather than a transformative-derivative work, and devalues the role played by the works being transformed.

    However, making it illegal to be discourteous... That's not going to end well.

    reply to this | link to this | view in chronology ]

  • icon
    jupiter (profile), 26 Mar 2010 @ 2:08pm

    New Yorker did it

    Over a decade ago the New Yorker published a short play made up entirely out of stage directions from Eugene O'Neill plays. It was a silent play but it made complete sense, and every word was "sampled" from O'Neill's copyrighted works.

    Nobody would even bother to think about suing because, after all, it was only the stage directions - not the precious dialogue.

    I thought it was kind of brilliant, and showed how excessively baroque O'Neill could get with his stage directions.

    reply to this | link to this | view in chronology ]

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