The shady one-man corporation that's destroying hip-hop (2006)
slate.com
slate.com
If that is what happened, couldn't Clinton sue Boladian and Bridgeport for signature forgery? Otherwise, what would stop someone from faking Boladian's signature on an agreement to transfer ownership to another entity?
But also this article was written in 2006. It is now 2014, and hiphop has not been killed. In fact, this particular issue became a big nothing.
Record company's are really just banks now. They finance the artists, and perform marketing. And once the music is for sale, they take a portion of the profits. And to do so, they have some rights over the work, just like a bank has over a property under a mortgage.
Ideally, you wouldn't need outside financing to take your music to market. But if you do, you need to get the best deal. And if you are a nobody, that deal isn't going to include much for you. So bootstrap with small investors first and short term deals.
Banks, errr... record company's need a big portion of the profits, because half of their investments will fail. Well, half is probably generous. But if the rate of return for being a record company was so great, there would be more people doing it. Actually that happened, and there are lots more record company's now than ever, because you no longer need to be big to fight for shelf space in HMV, as HMV is almost bankrupt.
After Biz Markie was sued, sampling changed completely: http://en.wikipedia.org/wiki/Grand_Upright_Music,_Ltd._v._Wa....
It's a shame...
While I completely agree with your sentiment, I also think it's important to point out that some truly incredible sample-heavy albums have been made "today" (read: post- Golden Age of Hip Hop):
- Since I Left You by The Avalanches [0] (said to contain over 3500 samples)
- Endtroducing... by DJ Shadow [1]
- Songs of a Dead Dreamer [3], Person Pitch [2], the entire discography of Girl Talk [4], the entire discography of The Books [5], most hip-hop mixtapes posted online...
The point is that sample-based music can (and should) still be an original work.
This "sample troll" (nothing to do with patents, btw) is unethically stifling creativity in the music industry. That's bad for everyone.
Samples are still valuable and whoever their rightful owners are, they deserve to be in control of their use.
As an example, just listen to Kanye West's "Stronger" and compare that to the original source of the sample, Daft Punk's "Harder, Better, Faster, Stronger", which itself prominently samples Edwin Birdsong's "Cola Bottle Baby".
Now imagine neither Daft Punk nor Edwin Birdsong was ever compensated or asked permission for Kanye's work, and neither was Edwin Birdsong compensated or asked permission for Daft Punk's usage. Is that in any way fair? Both the newer songs essentially owe their popularity to that single iconic sample!
If you don't want to go the legal route by getting permission to reuse others' music, then make an entirely original song. Plenty of people still do that, you know. Sampling others' work is a privilege, not a right.
Creativity comes in many forms. It can include a reinterpretation of existing material. Walt Disney films like Snow White were based on materials from the public domain. Were they uncreative for having not come up with a completely new story?
The book series "Wicked" is a very popular revisionist telling of the original Wizard of Oz books. The copyright for the books (but not the movie!) lapsed just months after L Frank Baum's literary estate had come out of copyright. (Gregory Maguire, the author of Wicked, had thought it was decades out of copyright when he started writing the book.)
It's impossible to tell a revisionist story without having some story to revise. Do you really believe that Maguire was less creative with Wicked than if he had written some other series entirely? If copyright were 10 years longer and so he needed to get a license from the estate, would you say he was less creative?
Similarly, a commercial parody like "Pretty Woman" requires something to parody, like "Oh, Pretty Woman", and it makes little sense to parody something that no one knows anything about.
But most sample-based music is not like this. Other examples raised in this discussion thread, such as the Beastie Boys' album "Paul's Boutique", use samples as a form of sonic collage. Works like these should be regarded by the law as original works, just as a visual collage would be.
Should The Winston's be compensated for the near-ubiquitous "Amen Break'? Or James Brown for "Funky Drummer"? Or the countless others that provided the elements (samples) upon whole genres of modern music are founded? I argue that it is in society's interest to answer "no", simply because the works would not exist were there legal barriers hindering its creation.
No it shouldn't. Or at least it should still require consent of the original sample owners (and any compensation that would entail).
If it were so easy to make samples and they were so disposable that anyone could come up with them, then there would be no need to sample older work and no one would do it. But in actual fact it's difficult to create catchy samples, and they are therefore valuable, and their owners deserve to have rights over them.
I mean, if you are going to make a mix and play it for some friends or as a DJ at a local club or even release something online for free, then fine, it's still probably technically illegal but I'm not going to get all rustled up about that. But if you start making any legitimate money off it, you better have gotten those rights secured or else you deserve whatever legal consequences you have coming to you -- in both a moral and a legal sense.
> The members of the rap music group 2 Live Crew—Luke, Fresh Kid Ice, Mr. Mixx and Brother Marquis—composed a song called "Pretty Woman," a parody based on Roy Orbison's rock ballad, "Oh, Pretty Woman." ... Acuff-Rose Music refused to grant the band a license but 2 Live Crew nonetheless produced and released the parody. ... The Supreme Court held that 2 Live Crew's commercial parody may be a fair use within the meaning of § 107.
You are free of course to suggest that the law is otherwise, and even that the law itself is immoral and unethical. But as it stands, it is sometimes legal to copy portions of another's work, without a license, sell it for a profit, and be within the law.
And I am free to continue to believe that commercial parody is ethically and legally fine.
But for something to be a parody of something else it needs to comment upon or mock the original. Most songs, whether they use someone else's samples or not, don't fall into that category.
This is why a search engine company can produce a thumbnail of a page without running afoul of copyright law. (See Kelly v. Arriba Soft Corporation )
It's also how commercial parody can (though not necessarily) be done without a license from the original author. (See Campbell v. Acuff-Rose Music, Inc.)
It's also why a judge recently decided that Google's book scanning system, which does not have copyright permission from the owners, is sufficiently transformative without reducing the primary market that it is legal under fair use. (See http://www.wired.com/threatlevel/2013/11/google-books/ , which has a link to the judgement.)
As you say, it is not legal to copy just the sample. But sample-based music can more transformative than a simple copy, and the combination of factors may make it fair use.
Unfortunately, there's no laws covering these details and the courts haven't worked out the details. The highest decision, from the 6th Court, says that de minimis doesn't apply even for a 3 note sample, but fair use might. (See Bridgeport Music, Inc. v. Dimension Films .) Many people are against this interpretation, including perhaps other courts. Other districts have not decided on this sort of case, so it's still ambiguous.
Not everything which is valuable has government-granted monopoly rights. The US does not accept "sweat-of-the-brow" as a basis for copyright, which is why databases cannot be copyright, even if the database itself is valuable. So your argument "it's difficult .. therefore valuable ... and their owners deserve to have rights over them" is, currently, un-Constitutional. (See Feist Publications, Inc., v. Rural Telephone Service Co., for the decision which decided that the Constitutional definition of copyright is based on originality, not difficulty.)
> Your analysis omits the concept of "transformativeness."
You are correct that I am not necessarily considering cases where a sample is modified extensively before being used. Though I will say that, though that might make it legal to use without permission, I myself don't necessarily think that it should be legal even were it changed to an extreme degree. It's something I'd have to think about further and would surely require a case-by-case analysis.
That being said, I do think most sampling that I am aware of would not be transformative. In general -- and maybe this could even be a good theoretical legal test, though it's not for me to decide -- if I listen to an original song, and then a newer one which samples the original, and recognize the sample, then I wouldn't consider it transformative.
> This is why a search engine company can produce a thumbnail of a page without running afoul of copyright law.
I don't know the legal implications of this, but that is surely a very different situation than sampling music. The thumbnail is to give users a quick preview of what to expect when they click into the page. A reused sample is doing just that -- being literally reused in the same way it was used originally except in someone else's work. Surely this disparity of use must have some legal meaning, as I do feel it surely has moral meaning.
> It's also how commercial parody can (though not necessarily) be done without a license from the original author.
Indeed, but again I don't think I necessarily see how that applies to a reused sample in any case except where the new song actually parodies the original (which certainly does happen on occasion, with Weird Al being an obvious example).
> It's also why a judge recently decided that Google's book scanning system, which does not have copyright permission from the owners, is sufficiently transformative without reducing the primary market that it is legal under fair use.
I'd argue that plenty of sampling does indeed reduce the market for the original. Plenty of people seek out a song because they've heard it somewhere and now that "catchy tune" is in their heads. The "catchy tune" gives it economic value, which is being essentially stolen when someone samples without permission.
The Kanye West / Daft Punk / Edwin Birdsong example that I gave elsewhere in this thread exemplifies that. I'm sure that plenty of Kanye West fans who might have bought or otherwise sought out (thinking more of exposure through ads / radio than piracy here) Daft Punk's original wouldn't bother or need to since Kanye's version is essentially Daft Punk's with some rap verses thrown in. That catchy hook is the same in both. EDIT: to be clear, assuming Kanye / Daft Punk obtained the necessary rights I of course have no problem with these songs existing.
> Not everything which is valuable has government-granted monopoly rights. The US does not accept "sweat-of-the-brow" as a basis for copyright, which is why databases cannot be copyright, even if the database itself is valuable.
That is a good point, though I think the combination of a sample being both copyrightable and valuable is a potent argument to those who would say that a misappropriation of a sample is just a "small-potatoes" or irrelevant infraction, legally or ethically. So I suppose I wasn't arguing entirely on the basis of law with that statement.
The courts agree with you completely. The Supreme Court ruling Campbell v. Acuff-Rose Music says that any such analysis must include four factors: if it's commercial/non-commercial, the nature of the copied work, the amount copied, and the effect of the copy on the market for the original work.
Parody requires that the original music be somehow recognizable, so the courts disagree with your "do I recognize the sample" test.
The "catchy tune" example you gave may be a violation of copyright, or it may be fair use. For example, if the original song was from the 1970s, with a current market of 20 iTunes+Amazon+whatever sales per year, and the new song comes out making 1 million sales, then it's fair to say that the new song did not greatly affect the primary market. A full analysis would need to cover at least those three other factors as well.
I don't know anything about the Kanye West / Daft Punk / Edwin Birdsong example. I follow so little of modern music. I've certainly read more copyright cases than I've heard songs from all three of those composers combined.
More classically, consider Ella Fitzgerald's famous and lovely scat version of the song "How High the Moon", in which she quotes from other popular songs, including "The Peanut Vendor", "Heat Wave", "A-Tisket, A-Tasket", and "Smoke Gets in Your Eyes". These are music samples, which include the catchy hook from those songs, but where I think anyone would agree there was no market confusion.
I do not know how copyright issues were settled for that recording, nor in live performances (in jazz improvisation, the artist make things up on the spot; how then would all the original artists get paid?). However, it was before Grand Upright Music, Ltd. v. Warner Bros. Records Inc. , which is the court case that established that samples were under copyright law. During Fitzgerald's time her use was likely "accepted practice and such copyright considerations as these were viewed as largely irrelevant." (Quoting http://en.wikipedia.org/wiki/Fair_use )
We had a very vibrant music industry before Grand Upright Music v. Warner Bros, and it allowed genres like scat which incorporated snippets of other copyrighted material. However, do note that that Fitzgerald wasn't "sampling." There are different copyrights for the lyrics, the music, and the musicians, and sampling covers recordings. This is why some hip hop artists use "interpolation" - replaying the music but with different instruments, and only paying the songwriter and not the artist or label. It may sound very similar, but it's not the same and so not covered by the "sound recording" definition used in Bridgeport Music, Inc. v. Dimension Films.
I am not so versed in music copyright at software and written works, and didn't learn about interpolation until just now. When you say "sampling", do you also mean to include interpolation?
BTW, I see you use the term "stolen." The better term is "infringed." Copyright is a limited monopoly protection which expires, and so far copyright violations are part of civil law rather than criminal. While "stolen" has connotations of property rights and criminal law. Using the concept "stolen" may lead to incorrect assumptions when some concepts are incorrectly transferred.
If it were so easy to make samples and
they were so disposable that anyone
could come up with them, then there
would be no need to sample older work
and no one would do it.
Imagine I write "I shot the sheriff" or "That is not dead which can eternal lie" or "x considered harmful" or "I've got 99 problems" or "We few, we happy few" or "Beam me up, Scotty" or "Light of my life, fire of my loins" or "Of the people, by the people, for the people" or "Less space than a nomad".
I'm not just stealing a sequences of words I think sounds good. I'm referencing other works - partly to evoke their meaning, partly so when you recognize the reference it communicates that I am like you, that we have shared background, that we've read the same books, heard the same songs, visited the same websites.
Is taking a few notes from a song really so different to taking a few words from a book, speech or essay?
The article suggests that Jay Z raps over a break from a Madonna song and is then surprised when the bill comes? The reality is that if Madonna released a track with chunks of a Jay Z record in the background, he'd be the first at the door wanting to be paid in full.
The fact that record companies want to be paid when their products are sampled is not remotely new, it has been understood and established since the 1980s. For anyone, even in the dim and distant dark ages of 2006, to be surprised by that state of affairs is baffling.
The sample was obtained without consent.
(The lyrics were also stolen from Ingrid Chavez, also without consent. She sued and won.)
In a lot of cases not using samples often just means taking a sample which you have already roughly arranged into a song and spending a lot of time and money recreating it with live musicians.
>attempting to create something worthwhile from it
You say that as though the sample itself is not worthwhile or valuable. There are plenty of modern songs for which the only reason they are popular or sound good is that they sample older tunes. And it's simply not easy to create a good-sounding, catchy sample. So whoever owns it deserves to get paid, and it's no one's fault but the original artist if he or she sold off the rights to it for a pittance.
So, what? Maybe if sampling was completely illegal, they'd have to start over by renting a clarinet and playing scales. That's a bad thing?
http://www.theonion.com/articles/new-rap-song-samples-billie...
Also: Rap is not poetry. It borrows elements from poetry, but it also borrows elements from public speaking, sports, preaching, and good old-fashioned conversation. Amongst other stuff. It's a different thing. It's its own thing! Rap!
Why am I having to explain this to people on Hacker News?
legitimate
Yeah, lemme just go check with the Poetry Oversight Council. I got a cousin who's on it, and he's a true scotsman, so I think I'm gonna win this one. While I'm at it I'll ask them what art is, 'cause I heard some people were curious about that.
That said, it facilitates the expression of certain attitudes and moods that you tend not to hear in other music. Listen it classical to feel serene. Listen to rap music to feel like a badass.