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lars in the early 1990s, and those rates dramatically rose over the decade.14 Sometimes it can cost as much as one hundred thousand dollars for a single sample. Rapper/producer Kanye West—whose innovative production work on Jay-Z’s records has been heard by millions—learned this licensing lesson when making his 2004 solo disc, College Dropout. He’s on a label, Jay-Z’s Roc-A-Fella Records, that can afford the ridiculously high prices companies charge, but West still had problems.
When Kanye wanted to include a brief sample taken from hip-
hop artist Lauryn Hill’s 2002 MTV Unplugged album, he encountered multiple obstacles. “The problem was it had to get cleared through MTV and also through Sony,” says West, referring to the network that originally broadcast Hill’s performance and the
record company that owns her master tapes. “The sample was going to end up costing like around a hundred and fifty thousand dollars.”15 This is an extremely large amount of money, especially when it is added to the cost of recording, promotion, music videos, and the like. Even though Kanye and his record company were willing to pay for this very brief fragment of sound, the bureaucratic wheels turned so slowly that it would have significantly delayed the release of his long-anticipated record.
As a solution, West employed the services of R&B songstress Syleena Johnson, who sang Hill’s part, legally bypassing the need to negotiate a mechanical license for the MTV Unplugged album. The rapper and producer Wyclef Jean, who has both sampled other people’s records and used live instruments to closely mimic records, told me that copyright has played a part—on a subconscious level, at least—in his decision to use live instruments. “Yeah, it’s a way of getting around that mechanical fee, so that has something to do with it,” he tells me, shaking his head. “Licensing is expensive.”
“Records like It Takes a Nation of Millions and 3 Feet High and McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 89
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Rising,” Public Enemy’s Harry Allen observes, “they’re kind of like artifacts from an earlier time that couldn’t exist today. They’re just financially untenable, unworkable records. We would have to sell them for, I don’t know, a hundred and fifty-nine dollars each just to pay all the royalties from publishers making claims for one hundred percent on your compositions.” You can place the Beastie Boys’
1989 densely packed Paul’s Boutique in the same category. “Ninety-five percent of the record was sampled,” says engineer and producer Mario Caldato Jr., who worked on Paul’s Boutique. “They spent over two hundred and fifty thousand dollars for sample clearances.”16 A quarter million turned out to be a bargain, because if those licenses were cleared today the album would be far too expensive to release. In an interview on his band’s Web site, Beasties group member Adam Yauch agreed that “the hectic sampling laws are a bit of a deterrent from sampling.”
These comments remind me of conversations I’ve had with re-
searchers and businesspeople who deal with gene-patent licenses.
Because many new drugs and therapies have to use multiple
patented genes from many owners, the royalty costs can get very expensive. “I’m very much aware of how many patents that I’ve had to in-license to support one drug,” Helena Chaye tells me, talking about her employer, MediGene. “It results in a stacking of royalties.
It has to economically make sense to me, because if I have to pay royalties out to parties A, B, and C, you have to add it all up.” She continues, “Oh, my God, this drug is going to bring in x number of dollars, but I have to pay out x percentage in royalties—that’s not going to work.” For the most part, in Chaye’s experience, she’s able to negotiate a price that makes it financially sensible for her company to release a drug.
However, the same isn’t true of the music industry when it
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documentary filmmakers. “I think of historical documentaries as being, in some ways, analogous to music that depends on sampling,” documentary producer John Sorensen told the Center for Social Media, which has reported on the creative tensions surrounding copyright and filmmaking.
It relies on earlier authors’ work to provide the raw materials, but rearranges those images in a way that creates an entirely new creative work. As a producer who is primarily interested in historical documentaries, my concerns about copyright revolve around control of access to footage. Because of the increasing consolidation of private footage sources like Getty, it is becoming increasingly difficult for small independent producers to obtain any leverage in negotiating rates and rights for hard-to-find images.
If corporations restrict access to our common cultural heritage, it makes it difficult (or at least expensive) for filmmakers like me to tell the stories that we want to.
In the world of music, some sampling artists have rebelled by cleverly altering the unauthorized samples through effects such as reverb, flange, distortion, or the limitless filters on editing software.
DJ Muggs, the member of Cypress Hill who produces the group’s instrumental tracks, tells me, “I don’t worry much about copyrights. Yeah, I haven’t been able to license some samples in the past, but the trick is to really fuck it up so that you don’t even have to ask for permission.” Sample clearance–business owner Hope Carr says that because the licensing fees are so high, “more people are doing songs without samples or trying to make songs where the samples are so obscure you don’t hear them.”17
DJ Spooky tells me that there’s a generally recognized “four-
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from another record without paying. It’s about recognizability. Aesop Rock, another member of the Def Jux hip-hop collective, also thinks it’s easier to sample if you’re not selling a lot, though there are still risks. “The general rule of thumb is if you’re not breaking ten thousand to fifteen thousand record sales then you should be okay,” he says. “But of course,” he adds, “you could be sued.” In fact, friends of his on the Def Jux label have run afoul of copyright owners. “Any of these big labels can take us under if they find a sample, but we’ve been able to do the whole puppy-dog-eyes thing”—i.e., beg and explain that they’re a tiny label—“and kind of get out of it.”
One way around getting sued, Aesop says, is “not to sample anything that’s recognizable, or freak it, sample it and flip it so it doesn’t sound like the original.”
He’s an MC, but he also produces his own tracks, and in answering my questions, Aesop gives us a peek into the way a sampler’s mind works. “I can picture what that would sound like slowed
down a lot,” he says, speaking of what he looks for in sounds on records. “You don’t listen to a song front to back. You’ll hear a break in a song where maybe the drums cut out and it’s just the instruments, or something, and you’ll be able to picture hearing it slower or faster, or with something chopped out.” He continues: “You’ll find weird groups you’ve never heard of that may have been on some 1970s foreign independent label. If it’s a major label, it’s not the greatest idea to sample it. I do still, but only if I haven’t heard of the group, or I know the group only put out one album. . . . A lot of producers will find a decade or a kind of music they like. You can literally look at the bands and the albums and buy stuff not based on the sound of the record, but based on what the record looks like.
If they have cool instruments and [were] made in a weird year. Like, they’re a rock band, and they’re introducing synthesizers, whatever you want to look for.”
Prefuse 73, who turns previously recognizable beats and melo-
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dies into mincemeat, explains, “If I take the perfect hook from the record, I’m basically doing a remix of that record, and I’m not interested in doing that. I’m more interested in using the sounds from that record and using it as a source, another source you throw into the mix.” As the hip-hop genre continues to splinter and fragment, Prefuse 73 represents the avant point guard of the hip-hop team, regularly running circles around more traditional producers. “If someone’s going to take something of mine—a sample of mine, a beat—and use it some different way,” says Prefuse 73, “you know, do something creative with it, I’m not gonna trip. I’d be honored.”
Mr. Lif, a kindred spirit in today’s hip-hop underground, says much the same thing. “If someone uses my voice, I’m not coming after you,” he says during an interview in Copyright Criminals, a documentary on sampling that I coproduced with Ben Franzen. “I remember the days when it was an honor to hear someone cut your voice on a chorus.” As for the popular indie hip-hop artist Mr.
Dibbs, you can call him a copyright criminal, because he just doesn’t care. “Sampling, bottom line, it’s stealing,” the tattooed DJ
says. “That’s the nature of hip-hop.” Near the end of Mr. Dibbs’s interview, he gets worked up into a fever of bravado: “I will steal, I will jack, I will take whatever I motherfucking want to take—and fuck you, you’ll never catch me.” Staring into the camera, he adds,
“Motherfucker, fuck you.”
One of the only multiplatinum groups of the 1990s to match the chaotic sonic intensity of Public Enemy was the Wu-Tang Clan.
This nine-member group was given to messing up song structures by nixing choruses, inexplicably changing tempos midsong, switch-ing keys randomly and clogging the instrumental bed with an
everything -and- the-kitchen-sink approach to sound design. The sonic architect behind the Wu-sound was RZA, who in 1998 released the soundtrack to a movie, Bobby Digital, which was never finished. At the time production on the straight-to-video movie McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 93
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was supposed to have begun, I spoke with the wizard of Wu about the soundtrack album.
I remember how RZA reacted when I went off the topic and
asked him if he cleared all the samples on the records he produced.
Through a haze of smoke, RZA locked me in a knowing, glassy gaze as he leaned into my tape recorder. “Well, yeah, all the sounds I lay down is shit I make myself. I don’t sample anything, or else I get it cleared.” He was shading the truth, I believe, but he was just protecting his neck while on record with a journalist. If you listen to the densely layered supersonic fifty-car (s)mash-up that is the Wu-Tang Clan’s music, it’s obvious that RZA plunders left and right from found sounds. But he does it in such a crafty way that the samples are next-to-impossible to identify.
PLAYING FAIR
Curtis Mayfield’s 1970s funk records are sampled often, something that provides an ongoing stream of revenue for the deceased musician’s widow and ten children. Mayfield—who wrote “People Get Ready,” “Freddie’s Dead,” “Superfly,” and other classics—received an expensive, paralyzing injury in 1990. Fortunately, this happened right around the time when his music started to be widely sampled.
“Sampling let his family be financially secure,” explains Marv Heiman, the executor of Mayfield’s estate.18 Who can argue with that? I certainly don’t, because Snoop Dogg and others sampled significant elements of Mayfield’s songs in ways that weren’t especially transformative. The success of the derivative work, its funkiness or catchiness, depends on the power of the original Mayfield song. Although I’m quite critical of the way the current sample-licensing system works, I’m certainly not arguing that no payments should be made to the original artist at all.
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tles record,” Coldcut’s Matt Black tells me, “and stick it on your track and go, ‘Hey, I’m being totally original. I’m a collage artist, man, I don’t owe you nothing.’ It’s bollocks.” What’s clear, though, is that sample fees need to be more reasonable, and should reflect the proportion of what was taken. This isn’t the case with the present sample-licensing system, which is a very arbitrary arrangement that inhibits creativity more often than not. When copyright owners can demand a large percentage of the new song’s royalties (Prince, for instance, requires 100 percent), it makes it impossible to legally release interesting collages.
Coldcut has been around since the mid-1980s, long enough to
watch the sample-clearance system evolve into what it is today. Although Matt Black believes in paying artists, he feels the system has its problems, which he points out. “If you sample one snare drum off a Rolling Stones record,” says Black, “and add ninety-nine percent of the song yourself, you shouldn’t pay the Rolling Stones one hundred percent of the royalties—their lawyers notoriously insist on being very litigious.” Most people would agree that if you take an entire hook or chorus, you should pay, but reasonable people (and judges) will disagree on how much you can use before it’s copyright infringement. Those who sample and who have been
sampled hold varying opinions about the subject.
De La Soul, which blames their record company for not clearing the Turtles sample, believes in compensating the original artist, especially when the borrowing is significant. “It’s important to us that we clear samples, from day one to today,” says group member David Jolicouer, aka Trugoy the Dove. “We definitely want people to be acknowledged and paid for what they’ve done.”19 When Robin Rim-
baud—who records under the name “Scanner”—was sampled on a
multimillion-selling record by Björk, he really didn’t mind. However, Scanner’s record company and the lawyers cared a lot, and McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 95
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insisted on suing. The polite Englishman describes how he was caught in a cauldron of lawyers, all while remaining apprehensive about what was going on, supposedly for his benefit.
“Morally, it felt wrong to be asking for money,” Scanner tells me,
“because this sound of mine is being introduced into another work, this popular piece of music, that took it in a completely different direction.” Scanner eventually pulled the plug on the lawsuit, which frustrated the lawyers and his record company. In retribution, they terminated his contract and released his unfinished demos without his permission, which the record company advertised as a new
Scanner album. Because of the terms of his contract, there was nothing he—the author and creator—could do about it.
The first time Tim Quirk thought about sampling as a moral issue was when he heard Grandmaster Flash and the Furious Five’s
“White Lines,” which liberally borrows the bass line from “Cavern,”
by Liquid Liquid. “Since the hook from the new tune was pretty much the hook from the Liquid Liquid song, that felt like some kind of line had been crossed. Even then, I didn’t think it was illegal—just lame.” Liquid Liquid came out of the same genre-mixing downtown scene that was inspired by the hip-hop music of Grandmaster Flash and Afrika Bambaataa. “In the early 1980s,” Public Enemy’s Harry Allen tells me, “you had this mix of audiences around danceable music at clubs like Danceteria and the Funhouse. You’d have high-energy Latin ‘freestyle’ music, as it was called back then, and hip-hop and other kinds of dance music that are kind of inter-mingled.”
The Funhouse’s DJ, Jellybean Benitez, used “Cavern” as the last song of the evening, which helped it gain currency among downtown clubbers and hip-hop artists. The four white guys in Liquid Liquid were attracted to New York by the “no wave” punk scene, but were immediately sucked into the cacophonous collage of music McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 96
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that surrounded them. “We were listening to reggae and African stuff and picked up on stuff like merengue from the streets—you could hear it coming out of everywhere,” remembers Richard
McGuire, Liquid Liquid’s bassist. “But it wasn’t till I heard Grandmaster Flash’s ‘Wheels of Steel’ for the first time, that was the future,” a wide-eyed McGuire tells me while sitting in his spartan Manhattan studio, shortly before moving to France. “Later, when it turns out that Grandmaster Flash, of all people, ends up using my bass line, it was just an honor. It was this amazing thing at first, and then it got complicated with all the legal stuff later.”
What Grandmaster Flash and Melle Mel borrowed from Liquid
Liquid’s song was not just the prominent bass line, but pretty much the whole song structure. This isn’t to say they didn’t transform it, but the element that makes Flash’s “White Lines” so successful comes primarily from “Cavern.” This prompted a lawsuit from Liquid Liquid’s record company—a long, tangled litigation that wasn’t resolved for a dozen years. “I’m totally for sampling. It’s like any other art form,” McGuire tells me. “And I don’t think it’s necessarily a given that the sources are more interesting than what the end result can be with a collage.” He pauses. “But at the same time, I feel both ways about it. I mean, I’m always interested in how someone can reinvent something, but there has to be some sort of structure
[for compensation, he means].”
When Afrika Bambaataa crafted one of old-school hip-hop’s
most important songs, “Planet Rock,” he essentially created a mash-up of two songs by Kraftwerk, a German electronic group. They were mad—less because they didn’t get paid than because they
weren’t credited. “He knew perfectly well what he was doing,” Kraftwerk associate Maxime Schmitt said. “He had not put the names of the authors and had not declared anything.” Kraftwerk member
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Express’ and the rhythm track from ‘Numbers.’ So we felt pissed off.
If you read a book and you copy something out of it, you do it like a scientist, you have to quote where you took it from, what is the source of it.”20 Richard McGuire is a little more forgiving about the Grandmaster Flash experience. “I used to say it was my cross to bear,” he says, half-joking. “It’s the reverse of some black musician coming up with something and being stolen by a white performer.
It’s like, ‘Hey, maybe I’m paying for the sins of my forefathers.’ ”
WHOM DO RECORD COMPANIES REALLY PROTECT?
Like Chuck D, when it comes to sampling, copyright law, and freedom of expression®, Tim Quirk has an almost inexhaustible supply of firsthand horror stories. “In 1996 something even more sinister happens when we try to clear one of the audio samples we’re stupidly still trying to include in between songs for this record,” Quirk says, referring to Too Much Joy’s last album for Warner, Finally.
“The sample comes from the movie Simon, starring Alan Arkin. At one point, Arkin’s character says, ‘Uh-oh, too much joy,’ ” says Tim.
“The thing came out on Warner Video, and we were signed to a
Warner company, so naive little me—still hadn’t learned what I should have—I assumed that meant we would be able to use it for nothing. No. What it meant was Warner wanted five thousand dollars. Again, it was five words, five thousand dollars.”
By now it’s clear why Quirk is beginning to lose his hair—he
must have started ripping it out after his major-label sampling or-deals. “My band would have been charged five thousand dollars by TimeWarner to use material controlled by TimeWarner,” he says in a tone of bitterness laced with an appreciation for the absurdity of it all. “In other words, it was nothing more than a way for the company that controlled our sound recordings to put us five thousand McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 98
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dollars deeper in debt to them.” With movies, it is the studio that owns the copyright. None of the many people who contributed to making the movie—the director, editor, actors, screenwriter, crew, etc.—sees any extra money. It all goes to Warner Video or to the parent company, TimeWarner.
So if Too Much Joy had agreed to the label’s terms, they would have lost five thousand dollars from royalties that Warner Records owed them, and Warner Video would have received a five-thousand-dollar payment. No one except TimeWarner wins in this scenario, and when we pull back and examine the music industry as a whole, we see that this royalties drain happens on a grand scale. Multiply the samples found on the hundreds of albums released each year, multiplied by tens of thousands of dollars in licensing fees per album, and that’s a lot of money that is deducted from artists’ royalties. The original recording artists see only a fraction of that money, if they’re paid at all.
Sample licensing is a shell game where money is split up and
passed around among companies. When we look at it on the
macrolevel, it becomes clear that the TimeWarners of the world benefit from copyright, not the musicians who are sampled. The process rarely involves the original musicians who wrote or recorded the music because, in many cases, they do not even own the songs’ copyrights. For instance, George Clinton—the famous funkster who founded Parliament-Funkadelic—lost the copyrights for much of his catalog to a shady music-biz type. As alleged in Clinton’s complaint, the man fabricated a cut-and-pasted document (the font and type size changed throughout) that transferred Clinton’s pre-1983 copyrights to his ownership for a ridiculously small sum of money.
Clinton settled the case after the man hired the same lawyer
George W. Bush used in 2000 to win the Florida election debacle.
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for using George’s work without his permission,” says an exasperated Brian Zisk, cofounder of the Future of Music Coalition, a lobbying group focused on protecting artists’ interests in the digital age. Public Enemy was sued as well, for using an extremely fragmentary P-Funk sample in their song “Bring the Noise.”21 Zisk is also a friend of Clinton’s, which explains why he’s so upset, especially when he tells me the following: “One of the people who got sued was George Clinton for using his own work.”
These kinds of shenanigans are sadly common in the music in-
dustry. Oftentimes, however, it can pay to not back down from an overreaching lawsuit, as John Fogerty discovered in the 1980s.
Fogerty—the lead singer, guitarist, and songwriter for Creedence Clearwater Revival—signed a bad contract that caused him to lose the copyrights to his old CCR songs. Adding insult to injury, when he released a new album in 1985, Centerfield, the copyright owner claimed that his new song “The Old Man Down the Road”
sounded too much like his CCR song “Run Through the Jungle,”
and promptly sued him.
Fogerty allegedly infringed on the copyright of a song he himself had written, spending over three hundred thousand dollars to defend himself against those charges. Unlike many other casualties from the early rock ’n’ roll era, this fortunate son actually had the money to defend himself, or else he would have had to accept an unfavorable settlement that would have reassigned the copyright to his new song to his old record company. Fogerty also won an important Supreme Court ruling in which he won back the legal fees he incurred, a precedent that made it easier to recover the money lost defending frivolous copyright lawsuits.
In 2003 Wu-Tang Clan member Ghostface Killah successfully
claimed fair use in New York federal court for his marijuana-
drenched parody of “What a Wonderful World,” popularized by
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blunts for me and you / and I say to myself ‘what a wonderful world,’ ” sang Raekwon, Ghostface’s rhyming partner in the Wu-Tang Clan. “Where the original first three lines of ‘Wonderful World’ describe the beauty of nature,” Justice Gerald Lynch drily wrote, the new song “reads more like an invitation to get high with the singer.” Indeed, their song was named “Trees,” hip-hop slang for a marijuana joint, and it also contained the line, “Goofy had kilos, big hole in his nose,” one of many references to characters from children’s stories engaged in unspeakable acts. Tom and Jerry, Porky Pig, Elmer Fudd, Peter Pan, Kermit the Frog, Miss Piggy, Snow White, Daffy Duck, and a couple dozen others make an appearance, but this parody was protected by the fair-use statute.22
By caving in to the demands of overzealous copyright bozos, you could end up like the Verve, a popular British band that scored a major worldwide hit in 1997 with “Bittersweet Symphony.” The
Verve negotiated a license to use a five-note sample from an orchestral version of one of the Rolling Stones’ lesser hits, “The Last Time,” and received clearance from Decca Records. After “Bittersweet Symphony” became a hit single, the group was sued by former Stones manager Allen Klein (who owns the copyrights to the band’s pre-1970 songs because of aggressive business practices). He claimed the Verve broke the agreement when they supposedly used a larger portion than was covered in the license, something the group vehemently disputed.
The Verve layered nearly fifty tracks of instrumentation, including novel string arrangements, to create a distinctly new song. In fact, the song’s signature swirling orchestral melody was recorded and arranged by the Verve; the sample from the instrumental
record is largely buried under other tracks in the chorus. The band eventually settled out of court and handed over 100 percent of their songwriting royalties because it seemed cheaper than fighting for a McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 101
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legal ruling that might not end in their favor. As if things couldn’t have gotten worse, they were then sued by another old Rolling Stones manager, Andrew Loog Oldham. Klein went after the Verve for infringing on the songwriting copyright, which he owned, but Oldham possessed the copyright on the sampled sound recording.
They totally lost everything.
Not only couldn’t the Verve earn money from their biggest hit, they were stripped of control of their song. For instance, after the group refused Nike’s request to use “Bittersweet Symphony” in an ad, the shoe manufacturer aired the song after it purchased a license from Allen Klein. “The last thing in the world I wanted was for one of my songs to be used in a commercial,” the despondent lead vocalist Richard Ashcroft said. “I’m still sick about it.” In one final kick in the groin, “Bittersweet Symphony” was nominated for a Grammy in the Best Song category, which honors songwriters. Because the unfavorable settlement transferred the Verve’s copyright and songwriting credit to Klein and the Rolling Stones, the Grammy nomination went to “Mick Jagger and Keith Richards.”23 Ashcroft quipped that it was “the best song Jagger and Richards have w