Oct. 14, 2004
By Dennis Romero
By Dennis Romero
It's a squealing guitar riff that's barely background noise in N.W.A.'s "100 Miles and Runnin'." Just a bit of acid ax buried under the rap. Nonetheless, this three-chord bit has helped make those who sample without permission - and permission means paying up - industry outlaws.
Astonishingly for some, the practice of sampling has been pushed against the ropes by the U.S. 6th Circuit Court of Appeals in Cincinnati. A recent ruling by the court forces producers to get clearance for using even one-note snippets of others' performances. It has sent a chill through the hip-hop and dance music worlds. "In an instant," declared the anti-industry website downhillbattle.org, "this act made the majority of sample-based music illegal."
More than any other instrument, the sampler symbolizes pop music's post-rock, postmodern era. Hip-hop, electronic dance music, boy bands, and teen pop sex symbols have all ridden a sound-wave constructed from other people's music, thanks to the sampler. The device transformed the way music is made, taking the industry from studio musicianship to a system of mix-and-match sound construction using music boxes and computers. Many pop acts don't even make music so much as put their highly processed vocals on top of sampladelic beds of sound pieced together by behind-the-scenes hitmakers such as the Neptunes and Timbaland. Those "producers" might hit a pad on their Akai MPC-2000 sampler and, as the beat kicks in, ask their pop star client, Can you get with this? This is music-making in the 21st Century.
The case focused on Los Angeles gangsta rap pioneers N.W.A., which sampled two seconds of Funkadelic's "Get Off Your Ass and Jam" for its single "100 Miles and Runnin'." The three-member panel used the controversial Millennium Copyright Act, intended to curtail file sharing, as a guiding light for its ruling last month. "If you cannot pirate the whole sound recording, can you 'lift' or 'sample' something less than the whole?" the judges stated. "Our answer is negative. Get a license or do not sample."
"The market will control the license price and keep it within bounds," the judges ruled.
But one man's bounds are another man's unreachable heights. Getting a license often means negotiating with the artist or label in question and giving away as much as half your publishing royalties, not to mention up-front fees that can reach into the hundreds of thousands of dollars - clearly out of reach for up-and-coming artists. With labels asking for a major slice of the royalty pie in exchange for sampling rights, taking pieces of several different songs, as some of the best sampladelic music does, would require more pieces of the pie than exist.
Like stockholders eyeing the day's ticker, owners of master recordings put a financial premium on each note and often care less about the artistic outcome of a "cleared" or paid-in-full sample. In this case, Funkadelic leader George Clinton is not a plantiff; rather the labels and publishing companies that own most of the Clinton/Parliament-Funkadelic catalog are suing 800 defendants over similiar allegations of "copyright infringement." The 6th Circuit Court ruling means that even a sampled note - "it is a physical taking rather than an intellectual one," the court stated - will be subject to major-label contracts. Before the ruling, many hip-hop artists felt freer to pull a drum kick from the JBs, a snare rip from Slayer, a cymbal crash from Ringo. A little filtering and digital sound-wave manipulation, and voila, they have placed another piece to their puzzle. But now, legally mixing and matching an artistic hodgepodge of sounds will be too expensive, as each note-holder clearly wants a premium and is willing to go to court for it.
"Songs that use many samples as a textural collage, that becomes impossible," says downhillbattle cofounder Nicholas Reville. "You end up to your neck in legal bills and give away more money per track than you'd be making."
Underground producers will be discouraged from raising their heads above the mainstream, and mainstream producers will only put the time and effort into negotiating for sampling rights if there's a guarantee of a "pop hook" involved, perhaps stifling the creative evolution of pop. This formula adds up to more of Puff Daddy's "I'll Be Missing You" (famously dependent on the Police's "Every Breath You Take") and less of DJ Shadow's masterful montage Endtroducing... or the Beastie Boys' similarly sample-crazed Paul's Boutique. So say the critics of the ruling, who have been energized by this turn of events (some have asked the court to reconsider).
"Classic hip-hop albums would be impossible to release today," says downhillbattle's Reville, "Paul's Boutique, Public Enemy's It Takes a Nation of Millions to Hold Us Back, De La Soul's 3 Feet High and Rising. It ultimately stems from a misunderstanding of what all that stuff is that goes into it. It never comes up in visual art. Warhol and Picasso aren't real artists because they use collage and sample from different sources? That's been understood to be a form of high art for almost a century. It's a tragedy for music."
The Acid Wash
Downhillbattle, along with New York conceptual artist Michael Bell-Smith, rolled out an online contest to protest the ruling. The project, called "3 Notes And Runnin'," posts the Funkadelic riff in question and encourages musically inclined visitors to download 1.5 seconds of the jam and use it to make a wholly new 30-second composition. The contest, open until Monday, October 18, has brought in more than 155 entries, some so slick that organizers suspect some big-name producers are participating under pseudonyms.
"The idea for me was that you can take this sample and turn it into anything," says Bell-Smith. He runs through some of the more interesting submissions, including a version of "The Star Spangled Banner," another that remixes the other submissions into abstract submission, and another that loops and slows down the "Get Off Your Ass and Jam" sample to the point at which it "sounds like an animal dying," he says.
"I got a sense that a lot of these people were just kids on their laptops," Bell-Smith says. "Everyone has the ability to do this stuff. What shines through is not the sample itself but the process."
The 6th Circuit ruling was just in time to cross paths with a peak in music-making technology. Cheap software programs such as Sony's Acid and Apple's Garage Band are making sampladelic musicians of the everyman and everywoman, putting powerful, easy to use song-making tools on millions of laptops and desktops. The technology encourages users to have fun with the past, taking a snippet of Michael Jackson and looping it, playing it backwards and making it groan. Musicianship? Maybe not, but the programs could make thieves of thousands, if not millions, of bedroom musicians if they sample without permission and try to sell their wares.
Ironically, Sony owns the rights to most of Michael Jackson's catalogue. One arm of the company is concerned with protecting MJ's every note, while the other sells software that allows you to loop the King of Pop ad nauseam. (It's fun for the whole corporate family).
Meanwhile, critics say, big corporate media fish will continue to swallow the little producers who attempt to make a buck off a few-note sample. As it is, labels and artists who own their own master recordings (post-1971, for the most part) clearly have the upper hand when negotiating sample rights. They can say no. They can say a few thousand bucks. And they can say a million.
DJ and producer Nu-Mark, of critically noted hip-hop group Jurassic 5, says he's been confronted with sampling clearance costs of $5,000 to $20,000 for one snippet, "not counting paying a sample-clearance agency," he says.
"You sample a snare or hi hat and they want 10 grand and 20 percent of the publishing as well," says Nu-Mark, who recently released a mix-CD called Hands On. "When you're adding a vocalist and an MC over a sampled loop and they want as much as 75 percent of the publishing, you say, 'Wait a minute, what about my vocalist, my bass-line, my production, my keyboard section?' It gets out of control at a certain point."
Some in the music community are pushing for a system of "compulsory licensing" like that of music publishing. Any artist can "cover" or recreate another's music, so long as such compulsory fees guarantee a payday, usually about 4-8 and-a-half cents a song per unit sold. Critics would like to see a similar system set up for sampling. A compulsory price for a set time of sampling would be set up, and no individual negotiations would be necessary. Proponents of compulsory fees for sampling argue that the major labels and publishing firms would actually benefit: The affordability, they say, would lead to more producers going on-the-record with their samples (instead of taking bits of music now and hoping the lawyers don't come calling later), more amateurs getting into the game, and more income flowing as a result of the compulsory fees. It might seem like a no-brainer. But labels seem to have too much invested in the status quo of negotiating a king's ransom for a few seconds of sound. "We need new legislation for a voluntary licensing system used by the labels," says Reville.
The major labels seem to like things just the way they are. While proponents of freer sampling argue that taking a slice of the musical past is reverential and can revive careers, the labels say it's the sample-happy artists who are getting a boost. The value is in the hook. When DJ Danger Mouse earlier this year sliced up the Beatles' "White Album" and diced up Jay-Z's Black Album, then reconstructed the ingredients to great critical reception with his bootleg Grey Album, EMI, copyright holder of the "master" recording of the "White Album," wasn't too thrilled by the artistry.
"EMI is absolutely in favor of sampling," Jeanne Meyer, EMI North America's senior vice-president for corporate communications, told CityBeat after the Danger Mouse controversy unfolded in March. "There's a very well established way to get sampling and he did not participate. And we asked him to stop and he did."
But Fred von Lohmann, senior intellectual property attorney at the Electronic Frontier Foundation, says the major labels are using the courts to give them greater creative and pricing control over music. "Basically," he says, "the major labels have a sample-clearing system among themselves. If you're a smaller independent artist, you have no access to the mainstream channels of clearance and distribution. And the record stores won't carry your stuff unless it's cleared."
Indeed, the 6th Circuit Court, in explaining its decision, stated "the record industry, including the recording artists, has the ability and know-how to work out guidelines, including a fixed schedule of license fees, if they so chose."
They so chose - not.
Von Lohmann says the court overlooked the idea of "fair use" in copyright law. That is, the concept that educational use and fair comment and criticism is protected when pieces of copyrighted material are reproduced. "Sampling in some situations might be a fair use, but it's an expensive proposition for most artists who want to fight a fair use case," Von Lohmann says. "It's something that would cost you millions in legal fees before you got a fair answer."
Art as Raw Material
To reproduce, steal, mock, or twist? It's a question that dogs other media as well. Anne Bray, executive director of L.A. Freewaves, an artistic festival of art, film, and new media (November 5-27), says she's careful about which projects she puts on the group's website, freewaves.org, because about half the artists she showcases fear being ripped off. "Appropriation is just as strong as ever," she says. "It also is what inspires people."
In Hartford, Connecticut, organizers of a University of Hartford exhibition have taken down a doctored photograph due to copyright concerns. The artist, Damian Loeb, apparently used a 1990 Tina Barney photograph of three schoolboys and added the image of a girl performing oral sex on a fourth boy in the background.
"I do not ... regret the images I created, or the way in which they were made," Loeb told The New York Times. "When we as a society lose the ability to comment on what we see and to have an opinion on what we are exposed to, then we have all lost what makes us unique on this planet."
Using another artist's work as a basis for one's own is an age-old pursuit, says Bray. "Collage and assemblage have both always been in some form or another active throughout the whole century," Bray says. "People have used found objects forever in art."
The difference today, she says, is that the big media corporations have "a stranglehold on the arts."
No need to tell that to hip-hoppers and dance music producers. They know. But they also know how to play around the rules. Music software makes it easy to get a grip on complex manipulation of sound with filters, waveform editors, and effects. A woman's voice becomes a man's. A snare drum becomes a bass drum. And sampled sounds are not clones, but rather new life forms. The self-referential becomes self-realization.
In her pioneering electronic-music documentary Modulations, filmmaker Iara Lee puts the digital music revolution in a postmodern, postwar framework. She argues that the atom bomb is the ultimate metaphor for modern media arts - fragmented into a billion bitsy pieces that are then re-sampled and remixed for modern consumption.
"You just need a raw source," says Richard File of electronic music act UNKLE. "You implode it so it becomes your own."
Watch My BeatHip-hop and electronic dance music artists say the 6th Circuit ruling won't really change the way they make music, despite the fears of some activists. Many say they already assumed that samples that could be recognized would bring legal troubles, so they simply tweak and twist until the sounds are transformed.
"The few people I've talked to about it shook their heads and said, 'We're already moving away from straight sampling and spending more time messing-up samples," says Kylee Swenson, editor of Remix magazine. "I don't think it has anybody shaking in their boots, and they shouldn't."
Jason Blum, a contributor to Remix and one-half of electronic dance music stars Deepsky, says the sampling process almost always involves tweaking a sound beyond recognition. "You're going to put it through so many effects and processes that it won't be identifiable," he says.
Swenson says, if anything, the ruling will be good for digital music, encouraging producers to go live, be more creative, and keep their publishing royalties instead of giving half of them away for a three-note hook. By relying too much on sampling, she says, many acts are "limiting your creative abilities."
House music producer Roy Davis Jr., who's promoting his latest album, Chicago Forever (see "Groundswell," page 17), says it's sad too many young, self-proclaimed "producers" can't even play an instrument and thus rely on technology and the talents of others.
"A lot of these cats around here, they're called house producers and they can't play a note," he says. "And that bothers me. You want to make music with me and you can't play a note. I'm not going to let somebody ride my back, you know. I had this one kid, I was like, 'You play a bass line, I'll play the chord.' Couldn't even do it. This guy wanted to pop in a Reason loop. Like, 'Let's do this Reason bass-line, and I'll flip it around.' I was like, 'Nah.'"
What's more, the behind-the-scenes music market is flooded with "sample" CDs that provide popular sounds - drum kicks, bass-lines, synth riffs - in easy-to- sample form (often ".wav" and ".aiff" files). The CDs usually cost $20-$100 and come with copyright permission so their sounds can be popped into Reason or Acid music-making programs, looped, and turned into a song in no time. Who needs Funkadelic when you have an L.A. Riot - The Funky Drummers 2 loop disc?
"It's so easy to sit down at a computer with Acid and Garage Band and a grip of sample CDs and make music," says Blum of Deepsky, whose "Talk Like A Stranger" single was recently released. "It's not so much making music as assembling pieces, but the end product is music."
Sampling has been a part of modern music for decades. Postwar musique concrete sampled the sounds of the streets and atmosphere and funneled them into an entirely new experience, while dub reggae sampled itself into blunt-baked oblivion. Hip-hop DJs used vinyl as their palettes, taking drum breaks from James Brown and the Incredible Bongo Band and making them new. The modern sampler appeared in the '80s on an Ensoniq Mirage keyboard, which had a frustratingly small amount of memory on which to place low-grade bits of music. Still, pop began to sport the ornaments of sampling, from Art of Noise's "Close (To the Edit)" to This Is Big Audio Dynamite to the omnipresent broken-glass sound of '80s new wave. But the sampler really didn't come into its own until 1988, when Akai introduced its higher-quality, higher-memory S1000. It's no coincidence that some of the best hip-hop albums ever made, including the sampladelic 3 Feet High And Rising, Paul's Boutique, and It Takes a Nation of Millions ... were released in its wake.
In fact, some of the work of the Akai era is still being litigated today: "100 Miles and Runnin'" was released in 1990. The minute-long "Transmitting Live From Mars," from 1989's 3 Feet High And Rising, set a chilling guideline for sample-happy acts when a '60s pop group called the Turtles recognized a bit of their music, sued, and won. When rapper Biz Markie sampled Gilbert O'Sullivan's "Alone Again (Naturally)" for his 1991 track "Alone Again," he was sued successfully, and followed it up in 1993 with All Samples Cleared!
Today it's hard to imagine the fresh new world of sampling creativity that faced hip-hop in the late '80s, where voices and sounds popped up to fill a void and contracts were something a rapper took out on a rival.
Still, the rules provide some thrill. Hip-hop, notes DJ Nu-Mark, is medium of appropriation and public space. Graf writers spray paint on other people's walls. Breakdancers use the sidewalk. Rap producers steal music and make it their own.
"It makes it more daring now to sample, which I kind of dig in a way," he says. "Sampling is risky."