this is a sampling sport
Tim Quirk’s first unpleasant encounter with copyright law came in the form of a cease-and-desist letter sent by a clown. The word “clown,” by the way, isn’t a mean-spirited jab at greedy lawyers. No, I’m talking about Bozo himself.
Quirk was the lead singer, songwriter, and guitarist for Too
Much Joy, a poppy, punky band whose career spanned the 1980s
and 1990s. Much to his chagrin, Quirk’s old band is probably better known for getting into trouble than for their sometimes goofy, sometimes sophisticated, and often catchy music. Over the course of a decade, Too Much Joy was arrested for performing obscene 2
Live Crew songs in Broward County, Florida; Quirk was detained by the Secret Service after drunkenly joking onstage about stran-gling Bill Clinton when Chelsea was in the audience; and they pissed off Bozo the Clown.
In the larger scheme of things, Too Much Joy is just a footnote in pop-music history, and Quirk’s new band, Wonderlick, probably won’t even qualify for that status. I don’t mean this as an insult; on 62
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the contrary, not-even-a-footnote is the level at which almost all working musicians live. Comparatively speaking, Quirk has done pretty well for himself. When I first met him during the course of writing this book, he was happily married, the proud father of a nine-year-old daughter, and had somehow spun his love of music into a respectable career in the music industry—in the form of a nine-to-five job at Real Networks, one of the companies to get in early on the legal music-download business. In the time since Quirk first recorded “Clowns,” he has gained some weight and lost a little hair. But even though he’s not quite the same person who rocked the stage ten years ago, he’s still a spry guy.
How exactly does one end up on the wrathful receiving end
of one of America’s most beloved (and disturbing) children’s en-tertainers? The story begins in 1988 with Too Much Joy’s song
“Clowns,” a ridiculously hummable slab of power pop that is about, as Quirk puts it, “how parents seem to think clowns are harmless even though all kids know that clowns are weird and evil.”1 A band member still had a Bozo the Clown LP from childhood, and when the group was in the recording studio, they excerpted a story recited by the happy/evil clown. In a voice that eerily resembled The Simpsons’s Krusty the Clown, Quirk uttered something that can only be taken the wrong way: “I found something in one of my pockets. It was about as big as your shoe,” Bozo declared on the scratchy piece of vinyl, “but it was shaped like a rocket!” This five-second sample served as the intro for “Clowns,” a track off my favorite Too Much Joy album, Son of Sam I Am.
A clown was my boss at every job I ever had.
Clowns run all the record companies that ever said we’re bad.
A clown pretended to be a girl who pretended to be my friend.
This world is run by clowns who can’t wait for it to end.
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Unfortunately for the band, Larry Harmon, who played Bozo
and who owns the intellectual-property rights to the clown character, keeps track of the Bozo brand. He has a clipping service to monitor when Bozo is mentioned in newspapers. It was through
this means that he discovered a review of Son of Sam I Am that described “Clowns,” so Bozo’s lawyers sent a cease-and-desist letter that claimed Too Much Joy’s record infringed on Harmon’s copyright. Above the dense legalese was a maniacal red-and-blue Bozo smiling in the upper right-hand corner. Too Much Joy was selling out and jumping from Alias Records—the independent label that originally released Son of Sam I Am— to Warner Records, one of the industry’s largest major labels (which had recently signed R.E.M.).
If Alias had pulled the record off the market because of Bozo’s threats, it would have put this small label out of business, but because Warner paid Alias for the rights to re-release the album, this wasn’t an issue.
The band felt there were bigger principles at stake, but no one had the money to defend themselves against the clown’s copyright lawsuit. Alias agreed on a monetary settlement with Bozo, and Warner re-released the album, without the offending clown sample.
In retrospect, the suit may have helped more than hurt, because Too Much Joy received some publicity and “Clowns,” minus the
sample, was used as the theme song to the 1992 cult-film classic Shakes the Clown (which was hailed by one reviewer as “the Citizen Kane of alcoholic clown films”). Despite the soothing waters of time, Quirk is still angry about the episode. “The goofiness of this incident obscures an important principle. Copyright can be used to prevent unflattering commentary on copyrighted works,” says Tim, taking the words right out of my mouth. “That has more potential to suppress authors than it does to motivate them.”
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OVERZEALOUS COPYRIGHT BOZOS
“The impression I’m left with,” says Quirk about Bozo’s legal threats, “is that Larry Harmon didn’t really care all that much about the sample, and just saw it as a way to make a quick buck.” It may have also been true that Bozo felt he had the “moral right” to control his image. That’s one way of looking at it, Quirk concedes. “But you know what I say to that? Tough shit, you fucking clown. You said it! All we did was remind the world.” He adds, later, while sitting in his brick-walled Real Networks offices, “Just because Bozo had a copyright on that sound recording, copyright isn’t a right to not look like an idiot.” In tribute to Larry Harmon, I’ve coined the phrase “overzealous copyright bozos” to describe the overreaching actions of bullying intellectual-property owners.
Here’s the rub: The original and re-released versions of Son of Sam I Am also sampled tiny fragments from the Clash, the Police, Gang of Four, Lou Reed, and many other artists, all without the band or the label worrying about these uncleared, unlicensed samples. What was a 1980s rock ’n’ roll band doing using all those samples? Well, Quirk explains, it was 1988, “and if you’re a music geek—and anyone in an indie-rock band in 1988 is a music geek—
playing spot-that-sample is one of your new favorite pastimes.” Not coincidentally, Too Much Joy was hopelessly addicted to Public Enemy’s brand-new It Takes a Nation of Millions to Hold Us Back.
I myself wasn’t prepared for this aural assault of a record, despite the fact that I was a record-store clerk/dork who had spent a year or two of his life in a supremely wack break-dancing crew of rhythmi-cally challenged adolescents. We called ourselves the Virginia Beach Breakers. There was something in the music of Grandmaster Flash, Kurtis Blow, and the Fat Boys that moved me enough to do back-McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 66
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spins on a cardboard box when most of the other neighborhood
kids were listening to Van Halen or Duran Duran. This still didn’t prepare me for the release of It Takes a Nation. This sonic space oddity came frontloaded with sirens, squeals, and squawks that augmented the chaotic, collaged backing tracks over which Public Enemy’s Chuck D laid his revolutionary rhymes. He rapped about white supremacy, capitalism, the music industry, black national-ism, pop culture, and—in the case of “Caught, Can I Get a Witness?”—digital sampling. “Caught, now in court ’cause I stole a beat,” Chuck D bragged. “This is a sampling sport.”
“It’s almost like ‘Caught, Can I Get a Witness?’ was a pre-Napster record,” says Public Enemy member Harry Allen, talking with me years later in a friend’s Manhattan apartment. “It’s really speaking to the way the industry handles technological change.” Just as there are now multitudes of panel discussions about digital downloading, which achieve little consensus, Allen vividly remembers that in the late 1980s sampling was the new music-industry boogeyman.
“Even more than a prediction or looking forward to the controversies that would bloom around sampling,” says Allen about Chuck D, “it was really more like looking forward to the controversies that would bloom around Napster.”
“The first Public Enemy records are like the blueprint, technique-wise, for what I do,” says Scott Herren, aka Prefuse 73, a key player in today’s thriving underground hip-hop scene. “That was just the most powerful onslaught of sound that had been experienced, and it [was] all coming from, like, machines. When you heard it for the first time, back then, it’s like”—cradling his temples with his finger-tips—“whooooaaaa. It was inconceivable for me. Back then I didn’t make music, and it sounded like science fiction, like, ‘What the fuck?’ ” Mr. Lif—part of the Def Jux family, a popular independent hip-hop label—says that Public Enemy sounded “like they har-McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 67
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nessed chaos, but somehow made it palatable.” Nodding his dread-locked head, he grins and says, “They made chaos delicious.”
I was destined to love Public Enemy’s music because I’m the
quintessential Bobo—“Bourgeois Bohemian”—and I loved the po-
etry fired from these prophets of rage. As did Tim Quirk. “So,” he remembers, “it’s September 1988, and Too Much Joy are recording our second album. Our bass player loves Public Enemy as only a rich suburban white kid who’s just graduated from Yale can, and we’ve been playing It Takes a Nation pretty much nonstop in the van for the last three months. . . . I think we loved that record the same way we’d loved the Clash’s debut—because we were so removed from the social and political concerns that each addressed so aggressively, we could only appreciate that layer intellectually. On a gut level, we responded to both albums as pure music, sonic assaults unlike anything we’d encountered previously.”
They didn’t really have the technical skills or even the knowledge to collage songs from the ground up as hip-hop artists did, but they wanted to honor and pay tribute to sampling. Sometimes their
sonic quotations were relevant to the song itself. “In a tune about how the Clash broke our hearts, we drop Mick Jones saying, ‘So hit it’ from ‘Hitsville U.K.,’ ” Quirk says. He mentions how they inserted a sample of Chuck D shouting “BASS!” on It Takes a Nation right before Too Much Joy’s bass player took a solo. “Other times,”
Tim explains, “we just liked the way the samples sounded.” The band’s guitar player had been imitating the “Sha Sha!” shout in a Big Country song. “We figure, ‘What the hell?’ and drop in the real thing.”
In 1988 digital sampling was about three or four years young, and there were few legal precedents. It was a sort of Wild West, where there was a creative window that had been forced open by hip-hop artists, a magical time when surprises were abundant on McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 68
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records, the sort of moment that makes the sacrifices of obsessive music fandom worth it. But by the early 1990s, the free experimentation was over. The West was won by copyright lawyers and major labels who realized a whole new revenue stream could be opened up with a copyright-clearance bureaucracy.
You can hear the increasing limitations imposed on mainstream hip-hop stamped on Public Enemy’s music. Between 1988 and
1990, Public Enemy released what are considered to be two of hip-hop’s greatest albums, It Takes a Nation and Fear of a Black Planet.
Public Enemy’s production team, the Bomb Squad, took sampling to the level of high art while still keeping intact its populist heart.
But by the time the group’s Apocalypse 91 came out, even the casual listener could hear a dramatic change. Gone were the manic collages that distinguished their previous two albums, where they fused dozens of fragments to create a single song. The new sample-licensing rules didn’t differentiate between collaging small sonic chunks and using entire choruses, so by 1991 it became economically prohibitive to release a record such as It Takes a Nation or Fear of a Black Planet.
“That changed how we had to approach music,” Chuck D tells
me, “to the point where we couldn’t use fragments in a song. That’s what changed overnight. It would take maybe a hundred different artists to construct a Public Enemy song, though they are all unrecognizable.” Tim Quirk concurs. “You can hear a difference from Fear of a Black Planet to Apocalypse 91,” he says. “To me, it’s the sound of the 1990s. The 1990s is just this big, hollow, empty period, where you are not hearing anything half as shocking, invigorating, creative, wonderful, and inspiring as you were at the end of the 1980s.” By the turn of the decade, everyone had to pay for the sounds that they sampled or risk getting sued. For now, though, let’s take a trip back in the day, before the copyright police came to Dodge.
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KILLING THE AUTHOR SOFTLY WITH TWO TURNTABLES
Musical revolutions are often the result of the most mundane cir-cumstances. Sometime in the mid-1970s at a housing project in the Bronx, a teenager was in his room blasting records. As parents are likely to do, his mom banged on his door, telling him to turn his music down. When she walked in, he stopped the record with his fingers, listening partially to what she was telling him while unconsciously moving the record back and forth over the same drumbeat.
That teenaged boy morphed into Grand Wizard Theodore. “I
wanted to get that same groove I was on,” the veteran DJ explained in the documentary Battle Sounds. “So I was, like, back and forth and I said to myself, ‘Hey, this sounds pretty good!’ Ya know?”
Whether this story is a fanciful bit of mythmaking or straight-up fact, it illustrates hip-hop’s haphazard evolution—a series of events built around mistakes that sounded good, and which were further developed.
The DJs who inspired Grand Wizard Theodore—Kool DJ Herc,
Afrika Bambaataa, and Grandmaster Flash—often plugged their
massive sound systems into street-lamp outlets in local parks. They dug deep into their crates full of records and kept the party rocking till the cops quite literally came a-knocking. The earliest of these DJs to gain popularity was Kool DJ Herc, who had a habit of creating infectiously danceable collages with his two turntables. Herc was from Jamaica, and the music of his birthplace was extremely influential for him, especially the dub reggae records made by producer/engineers King Tubby and Lee “Scratch” Perry. These men turned the recording studio’s mixing desk into a musical instrument. They altered the speed, equalization, and other elements of the recording—also dropping instruments in and out of the mix—
to make multiple “versions” of one song.
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The existence of these dub versions, British cultural studies scholar Dick Hebdige comments, demonstrates that “no one has
the final say. Everybody has a chance to make a contribution. And no one’s version is treated as Holy Writ.”2 In Roland Barthes by Roland Barthes, the French philosopher says something similar about his writing and his life: “What I write about myself is never the last word.” 3 He means that there’s no way to permanently imprint his intentions in the words he types. Someone can always misinterpret his writing, or they can take a small fragment and put it in a new context—as I have just done with his words. Kool Herc
brought from Jamaica the idea that the musicians no longer had the last word in their music, and when he arrived in the early 1970s, disco DJs had independently come to the same sonic conclusions.
With their two turntables and a mixer, early disco DJs stretched tunes from three minutes to twenty, crafting entirely new versions of songs—all without involving the original songwriters and musicians. Disco was primarily a downtown happening, while up in the Bronx hip-hop DJs such as Kool Herc were doing much the same
thing in a different style. “I quickly realized that those breakbeats were making the crowd go crazy,” Herc told me, speaking of the catchy and percussive breakdowns that make songs go BOOM. “As long as I kept the beat going with the best parts of those records, everybody would keep dancing, and the culture just evolved from that.” Herc fused together the chunks of songs that were the most popular with dancers, segueing the instrumental and percussion breaks into one long musical collage.
Some of the better known hip-hop breakbeats came from the In-
credible Bongo Band’s “Apache,” James Brown’s “Funky Drummer,”
and even the opening bars of the Rolling Stones’ “Honky Tonk
Women” or Aerosmith’s “Walk This Way.” Afrika Bambaataa took a cue from Kool Herc’s eclecticism, going a bit further by mixing in McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 71
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television commercials and the theme to The Andy Griffith Show.
But in terms of sonic skills and agility, Grandmaster Flash left Kool Herc and other DJs in the proverbial dust. “Most great records had amazing parts,” Flash told me. “You know, the percussive part that you wait for—before they called it ‘the break’ it was ‘the get-down part.’ What pissed me off was that part was so short, so I just extended it with two copies to five minutes.”
The one thing Flash couldn’t do was spit rhymes, which wasn’t a big deal because in 1970s hip-hop culture the DJ was the star, not the MC. “I was like totally wack on the mic,” said Flash, “so I had to find someone able to put a vocal entertainment on top of this rearrangement of music.”4 From there, Grandmaster Flash and the Furious Five—best known for “The Message” and “White Lines”—
were born. Herc, Flash, and Bambaataa inspired numerous up-and-coming Bronx DJs during the late 1970s, including Grand Wizard Theodore, Grandmaster D.S.T., and DJ Afrika Islam, among others.
Offering a window into that time is a rare taped performance by the Cold Crush Brothers that fell into my hands while writing this book. It was recorded over a quarter century ago, but something about it sounds fresh—funky fresh—because the music was created live with turntables, mixed by a deft (and def ) DJ who might screw up and drop a beat at any moment. It’s that sense of danger, the feeling that comes from live performances, that makes it so compelling. The same year of the Cold Crush Brothers recording, 1977, the French intellectual Jacques Attali published an important book, Noise, in which he unknowingly described (in the abstract) the turntable practices South Bronx hip-hop DJs had already perfected.
In his book, Attali breaks up the history of music-making into four stages, with the fourth stage, composition, existing only in his imagination at the time, or so he thought.
“The listener is the operator,” said Attali about this music-
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making method, where anyone could compose music, regardless of whether they fit the traditional category of “musicians” or not.5 In the composition stage, the distinction between the worker and consumer, the musician and listener, was blurred—quite an advanced concept for the 1970s. Afrika Bambaataa’s sonic collages echoed Attali’s technique, in which the cultural consumer— the record buyer, the DJ—morphed into the cultural producer. The turntable is an object of consumption that was reimagined by DJs as a technology of production, and today’s software programs now allow anyone with a computer to collage and compose.
This expansion of creative possibility has resulted in the MP3
“mash-ups” of today, where thousands of bedroom composers are creating new songs by smashing together two different songs and putting them on the Internet for free. One hilariously compelling mash-up I’ve downloaded crosses Eminem’s “Without Me” with
“Come On Eileen” by Dexy Midnight Runners, which—dare I say
it?—aurally emasculates the posturing white rapper by placing him atop a goofy one-hit wonder of the 1980s. Another great one is Eminem’s “The Real Slim Shady” set to a ragtime instrumental. At their best, mash-ups sound equally right and wrong; the fusion can be both seamless, but weird and jarring. Yet again, the original authors no longer have the last word.
This sensibility echoes philosopher Jacques Derrida’s writings, in which he encouraged readers to play with the text—mocking, deconstructing, and reconstructing it. Derrida was publishing his writings on deconstruction roughly at the same time hip-hop DJs, disco DJs, and dub reggae producers developed their deconstructive music methods in the early 1970s. And his ideas were as revolutionary in the academy as hip-hop was in the South Bronx. There was a common impulse shared at the time by all sorts of people—
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deconstructive tactics these DJs used would have likely been approved of by Roland Barthes. He attempted a literary drive-by in his widely cited essay, “The Death of the Author,” where he more or less blew away established assumptions about what authorship is.
For instance, in Leviathan, that influential Enlightenment artifact, Thomas Hobbes defined the author, first, as someone who is responsible for his writing and, second, one who determines the text’s meaning after it circulates. For Barthes, the first definition doesn’t stand up to scrutiny because it is the critical reader who determines the meaning of a text. Just ask that Catcher in the Rye fan and John Lennon assassin Mark David Chapman, or all the fans
who misinterpreted Bruce Springsteen’s anti-Vietnam anthem
“Born in the U.S.A.” as a jingoist ditty.6 Barthes wanted to give more power to the people—the readers, in this case. This desire wasn’t merely a theoretical exercise, because it was rooted in the very real fact that all readers have their own interpretations and can make their own meanings.
The attempt to eliminate the godlike power and influence of the author was only a reaction to the critical tenor of the times, when the author’s intentions had previously eclipsed most everything in the field of literary criticism. One of Roland Barthes’s motivations—which was shared by Michel Foucault in his essay “What Is an Author?”—was to undermine the overpowering influence of the author. The things that DJ Derrida, Funkmaster Foucault, and
Roland 808 Barthes wrote about in the late 1960s and 1970s foreshadowed, in part, the way today’s young adults have been brought up reading and playing with fragmented, hyperlinked texts and images. The manner in which my college students use the Internet and editing software has severely damaged the myth of the individual genius author, for it gives them the tools to freely collage image, music, and text.
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OLD-SCHOOL SAMPLING
The reason these collage practices seem so natural and copyright industries have been unsuccessful in convincing people that it’s wrong is that this kind of borrowing is a natural part of being a sentient being. The earliest example of “sampling” on the Billboard charts was Buchanan and Goodman’s 1956 hit “The Flying Saucer.”
Bill Buchanan and Dickie Goodman composed this funny “break-
in” record on a reel-to-reel magnetic tape recorder, creating a skit about an alien invasion—as told through then-current rock ’n’ roll hits. Imitating the radio broadcasts of War of the Worlds, the songs break into the radio announcer’s comments, creating a jarring, goofy collage of sound.
“Radio Announcer: The flying saucer has landed again. Wash-
ington: The Secretary of Defense has just said . . .” Then Fats Domino bursts in, singing, “Ain’t that a shame.” Elvis appears, as do many others, and the record sold over a million copies, inspiring a host of imitators. A few song publishers sued Goodman, which prompted these jokers to release the totally unauthorized “Buchanan
& Goodman on Trial.” The delirious 1956 single swiped the Dragnet theme, among many other songs, and Little Richard “played” their defense attorney—who argued in front of a jury of Martians. Four labels (Imperial, Aristocrat, Modern, and Chess) and two performers (Fats Domino and Smiley Lewis) filed for an injunction to prevent the sale of all Buchanan-and-Goodman recordings. They also asked for $130,000 in damages.
Judge Henry Clay Greenberg sided with Buchanan and Good-
man, denying the injunction because he believed that the single was clearly a parody and not a violation of anyone’s copyright. The judge stated that Goodman “had created a new work,” rather than McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 75
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simply copying someone else’s music.7 Goodman had a long career, working into the 1970s (“Energy Crisis” and “Superfly Meets Shaft”) and the 1980s (“Hey E.T.” and “Safe Sex Report,” which eclectically samples Michael Jackson, the Grateful Dead, L.L. Cool J, Huey Lewis, and Los Lobos!). To make his life easier, Goodman started working within the system—buying licenses for most of the songs he excerpted—but he never lost his subversive edge.
Igor Stravinsky once said, “A good composer does not imitate, he steals.” He was one of many European composers who borrowed
from folk melodies in composing their own works. Another notable appropriator was Johannes Brahms, who was quite obsessed with the songs of his youth. He arranged well over two hundred folk tunes in his lifetime, with some melodies finding their way into his art-song compositions such as Sehnsucht. But Brahms’s most significant and highly regarded use of folk-song material was his Deutsche Volkslieder for voice and piano. He took as much pride in these works as his “original” compositions, perhaps more. Biographer Malcolm MacDonald wrote that Brahms’s Deutsche Volkslieder are “a series of miniature masterpieces worthy to stand with any of his art songs of the same period.”8
Although it is quite “original” in its own right, Brahms’s First Symphony borrowed musical phrases from Beethoven’s Ninth
Symphony. And in composing the introduction to his Third Sym-
phony, Mahler swiped a major theme from Brahms’s Beethoven-
biting symphony, converting it into minor mode but keeping the melodic structure intact. When someone pointed out to Mahler
the fact that those two pieces were so similar, he snapped, “Any fool can hear that.” Elements of Beethoven’s Ninth can be heard in Mendelssohn’s Lobgesang, as well as a great deal of Wagner’s body of work. This kind of musical borrowing continued into the twe