Creative License: The Law and Culture of Digital Sampling

Creative License: The Law and Culture of Digital Sampling


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Product Details

ISBN-13: 9780822348757
Publisher: Duke University Press Books
Publication date: 03/14/2011
Pages: 336
Product dimensions: 6.10(w) x 8.40(h) x 0.90(d)

About the Author

Kembrew McLeod is Associate Professor of Communication Studies at the University of Iowa. He is the author of Freedom of Expression®: Resistance and Repression in the Age of Intellectual Property and Owning Culture: Authorship, Ownership, and Intellectual Property Law, and co-creator of the documentary film Copyright Criminals.

Peter DiCola is Assistant Professor at Northwestern University School of Law. He is a board member and former Research Director of the Future of Music Coalition.

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The Law and Culture of Digital Sampling
By Kembrew McLeod Peter Dicola Jenny Toomey Kristin Thomson

Duke University Press

Copyright © 2011 Kembrew McLeod and Peter DiCola
All right reserved.

ISBN: 978-0-8223-4864-1

Chapter One


In this chapter we compare and contrast two key moments in hip-hop music's evolution in order to illustrate how the emergence of the contemporary sample licensing system impacted creativity. First, we examine the golden age of hip-hop, when sampling artists were breaking new aesthetic ground on a weekly basis. Following that, we explain how legal and bureaucratic regimes forcefully constrained the creative choices that hip-hop producers could make. The rise and fall of sampling's golden age—roughly between 1987 and 1992—offers evidence that illustrates why we should care about sampling as a fruitful musical technique. As we mentioned in the introduction, recent history can provide us with a lesson about what happens when we don't make carefully considered policy decisions about copyright and creativity.

Paul Miller, a.k.a. DJ Spooky, notes that some of the key albums and artists from the golden age include De La Soul's 3 Feet High and Rising, Pete Rock & C. L. Smooth's Mecca and the Soul Brother, and Public Enemy's It Takes a Nation of Millions to Hold Us Back, among others. We can add to that list many other classic albums from the Jungle Brothers, Queen Latifah, MC Lyte, Boogie Down Productions (BDP), and Eric B & Rakim, to name but a few. "These albums had a rich tapestry of sound, a variety of messages," notes the media studies scholar Siva Vaidhyanathan. "They were simultaneously playful and serious, and they really stand as the Sgt. Pepper's or Pet Sounds of hip-hop." And as the MC and producer Mr. Lif observes, "The difference between hip-hop production in current times and in the 1980s during the golden era—it just allowed so much more freedom. Like, you didn't think about, 'You couldn't sample this, or you couldn't sample that.'"

So, for instance, when BDP released their debut Criminal Minded in 1987, they didn't ask AC/DC whether they could sample "Back in Black" on their classic song "Dope Beat." Instead, BDP just did it, despite the fact that the hard rock group has since become known for turning down sample requests (or, for that matter, refusing to allow its music to be sold online). "To this day I don't know why AC/DC didn't sue us for that song," frontman KRS-ONE told the journalist Brian Coleman. "That's all samples. I'm probably incriminating myself, but nothing on Criminal Minded is cleared." A few years later, artists like KRS-ONE would no longer be able to fly under the radar like they used to. The golden age was an important moment during the development of hip-hop as a musical art form, and it opened up a range of artistic possibilities that largely weren't censored by legal and economic interests.


Sampling was a very intricate thing for us. We didn't just pick up a record and sample that record because it was funky. It was a collage. We were creating a collage.—HANK SHOCKLEE

The standout records of the golden age were created at a time when hip-hop was still considered a flash in the pan by the larger music industry. This attitude gave many hip-hop artists the opportunity to make music exactly as they imagined it, without restrictions. This was particularly true of De La Soul, a group that hailed from the African American suburbs of Long Island, a region that also produced Public Enemy. De La Soul consisted of Pasemaster Mase, Trugoy, and Posdnuos—a threesome that was augmented on their first three classic albums by the producer Prince Paul. His former group Stetsasonic was signed to Tommy Boy Records, an important independent hip-hop label that released records by Naughty By Nature, Queen Latifah, and many other popular hip-hop acts. But it was De La Soul that was the jewel in the label's crown in the late 1980s, particularly because they were able to match their experimental approach with platinum sales.

"They had an aesthetic of taking everything and the kitchen sink and throwing it into the blender," states the hip-hop historian and journalist Jeff Chang. "So, you didn't just have George Clinton, the Meters, and the usual funk stuff you would expect on a record. You'd have French language records. You'd have the Turtles. You'd have Led Zeppelin. You'd have Hall and Oates. You'd have all kinds of crazy things coming out of the mix, and it sounded the way like a lot of people heard pop culture at that moment in time." The title of their first album came from a sample they snatched from Johnny Cash's hit from the 1950s "Five Feet High and Rising," during which Cash sings, "Three feet high and rising, ma." ("Dave's father had that record," says Posdnuos, referring to the group member known back then as Trugoy.)

"I definitely, definitely was taken aback by what De La Soul did," says the hip-hop journalist Raquel Cepeda. "They just went ahead and took whatever moved them." Prince Paul echoes Cepeda when he says, "We went in there to have fun and experiment, and with De La, we could literally do anything." The creative field was wide open, with no significant legal or administrative fences yet erected. One can also place the Beastie Boys' densely packed sophomore record, released in 1989, into the same experimental category. "Look at the Paul's Boutique record," says the current Beastie Boys DJ, Mix Master Mike. "That was sample mastery right there. Those records were just full of samples." Although there is no accessible paper trail that confirms what was sampled, or how many samples Paul's Boutique contains, somewhere between one hundred and three hundred is a safe guess.

The Dust Brothers' John Simpson, who co-produced Paul's Boutique, details the creative processes and the technologies—rudimentary by today's standards—involved in making that record. "The people who worked at the studios thought we were crazy at the time, 'cause they had never seen anybody make songs that way." Simpson explains that they would build a song starting from one sampled loop of instrumentation that was then layered with other loops and bursts of sound. The Beastie Boys and the Dust Brothers would then painstakingly sync each of the other loops up with the first one, spending hours getting the layers to sound good together. It was a laborious process, Simpson says, explaining that "if you knew which tracks you wanted playing at any given time, you typed the track numbers into this little Commodore computer hooked up to the mixing board. And each time you wanted a new track to come in, you'd have to type it in manually. It was just painful. It took so long. And there was so much trial and error."

Not only was it time consuming to put the parts together, the search for musical materials was also laborious. As Miho Hatori—one half of the now-defunct duo Cibo Matto, who used numerous samples in their work—tells us, "We were always buying records, searching, searching, and then sometimes we find, 'Oh, a Silver Apples record!' And then we find this one very short part, 'There, that bass line!'" This process of searching for sounds is called "crate digging," and it is central to sample-based music. "To find the right one or two seconds of sound," Hatori says, "that's a lot of work." Trugoy of De La Soul explains the haphazard ways he looks for potential samples as follows: "I could be walking in the mall and I might hear something, or in a store, something being played in the store, and say, 'Wow that sounds good.' Or a sound in an elevator, you know, elevator music, 'That sounds good.' If it sounds good and feels good, then that's it. It doesn't matter if it was something recent or outdated, dusty, obscure, and, you know, weird."

Although those records by De La Soul, the Beastie Boys, and others are justly revered for their sampling techniques, no one took advantage of these technologies more effectively than Public Enemy. When the group released It Takes a Nation of Millions to Hold Us Back in 1988, it was as if the work had landed from another planet. The album came frontloaded with sirens, squeals, and squawks that augmented the chaotic backing tracks over which frontman Chuck D laid his politically and poetically radical rhymes. Their next record, Fear of a Black Planet, released in 1990, is considered culturally so important that the New York Times included it on its list of the twenty-five most significant albums of the last century. Additionally, the Library of Congress included Fear of a Black Planet in its 2004 National Recording Registry, along with the news broadcasts of Edward R. Murrow, the music of John Coltrane, and other major works.

In the final pages of this section, we examine Public Enemy's creative processes during this period in order to glimpse what was possible creatively and to understand what was lost when the golden age came to a close. Public Enemy was, and still is, deeply influential for a wide variety of artists who followed them. Public Enemy's production team, the Bomb Squad—Hank Shocklee, Keith Shocklee, Eric "Vietnam" Sadler, and Chuck D—took sampling to the level of high art while keeping intact hip-hop's populist heart. They would graft together dozens of fragmentary samples to create a single song collage. "They really put sound and noises together and made incredible music," De La Soul's Posdnuos says. As a contemporary of Public Enemy who hailed from the same area and drew from a similarly wide sonic palate, he tells us, "Public Enemy reminded me a lot of what we were doing, obviously in a different way. But you can listen to their music and hear something else for the first time."

The group's music was both agitprop and pop, mixing politics with the live-wire thrill of the popular music experience. Matt Black of the British electronic duo Coldcut, which emerged around the same time as Public Enemy, remembers the impact of their song "Rebel Without a Pause." It was one of the many tracks on It Takes a Nation that featured repetitious, abrasive bursts of noise, something that simply wasn't done in popular music at the time. As Black tells us, "That noise—what some people call the 'kettle noise'—it's actually a sample of the JB's 'The Grunt.'" Public Enemy took that brief saxophone squeal (from a James Brown spin-off group) and transformed it into something utterly different, devoid of its original musical context.

"It was just so avant-garde and exciting, and heavy," Black says. Chuck D tells us that part of the intention behind transforming the sounds was to disguise them, but that wasn't the primary purpose; mostly they wanted to make something fresh. "We wanted to create a new sound out of the assemblage of sounds that made us have our own identity." Chuck D says, "Especially in our first five years, we knew that we were making records that will stand the test of time. When we made It Takes a Nation of Millions to Hold Us Back we were shooting to make What's Going On by Marvin Gaye and when we made Fear of a Black Planet I was shooting for Sgt. Pepper's."

Behind the boards was Hank Shocklee (widely credited as the architect of Public Enemy's aesthetic), who served as the director of Public Enemy's production unit, the Bomb Squad. "Hank is the Phil Spector of hip-hop," says Chuck D, referring to the producer from the 1960s who perfected a sonic approach known as "the wall of sound." In Public Enemy's hands, sampling was now a tremendously complex choreography of sound that reconfigured smaller musical fragments in ways that sounded completely new. "My vision of this group," says Hank Shocklee, "was to have a production assembly line where each person had their own particular specialty." Jeff Chang explains that the members of the Bomb Squad had worked out an elaborate method that involved the group members bringing into the studio different types of sounds. "They're figuring out how to jam with the samples," says Chang, "and to create these layers of sound. I don't think it's been matched since then." The Bomb Squad's success hinged on the fact that each member brought a different approach to making music, crafting sounds, and working with technology. "I'm coming from a DJ's perspective," says Hank Shocklee. "Eric [Sadler] is coming from a musician's perspective. So together, you know, we started working out different ideas."

Public Enemy's distinctive sound grew out of the push and pull between Eric Sadler, who often advocated for a more traditional, structured approach to songwriting, and Hank Shocklee—who "wanted to destroy music," as Chuck D put it. "When you're talking about the kind of sampling that Public Enemy did," Hank Shocklee says, "we had to comb through thousands of records to come up with maybe five good pieces. And as we started putting together those pieces, the sound got a lot more dense." In some cases, the drum track alone was built from a dozen individually sampled and sliced beats. The members of Public Enemy treated audio—from singles, LPS, talk radio, and other sources—as a kind of found footage that could be spliced together to create their aural assemblages.

"We thought sampling was just a way of arranging sounds," says Chuck D. He explains that Public Enemy wanted "to blend sound. Just as visual artists take yellow and blue and come up with green, we wanted to be able to do that with sound." Hank Shocklee adds, "We would use every technique, no different than in film—with different lighting effects, or film speeds, or whatever. Well, we did the same thing with audio." Even though the group was working with equipment that was rudimentary by today's standards, they made the most of the existing technologies, often inventing techniques and workarounds that electronics manufacturers never imagined.

"Don't Believe the Hype" on It Takes a Nation is another notable example of the Bomb Squad's aural experiments. It was, according to Hank Shocklee, "one of the strangest ways we made a record. We were looking for blends in particular records; so I might be on one turntable, Keith on another, and Chuck on another turntable at the same time." As Chuck D elaborates further: "We would go through a session of just playing records, and beats, and getting snatches, and what Hank would do is record that whole session. You know, 95 percent of the time it sounded like mess. But there was 5 percent of magic that would happen. That's how records like 'Don't Believe the Hype' were made. You would listen to sixty minutes of this mess on a tape, and then out of that you would be like, 'Whoa! What happened right here?' "

They used the same approach when constructing Public Enemy's next album, Fear of a Black Planet. "It's completely an album of found sounds," Chuck D says. "It was probably the most elaborate smorgasbord of sound that we did." He describes how he spent at least one hundred hours listening to various tapes, records, and other sound sources in search of samples for the album. As the group's lyricist, Chuck D needed to fit the snatches of sampled songs, radio snippets, and everything else into his lyrics so that his rhymes and those sounds would weave together to create a theme for the album. "There were hundreds of sampled voices on that album," Chuck D explains. Pointing to the album's opening track, "Contract on a World Love Jam," he says the song holds "about forty-five to fifty voices" that interlock and underscore the album's message with a forceful sonic collage.

Regarding Public Enemy's musical complexity, the DJ and producer Mr. Len points to a particular track, "Night of the Living Base Heads," from It Takes a Nation. As Mr. Len says, "If you really listen to that song, it changes so many times." Kyambo "Hip Hop" Joshua—who started out in the music industry working for Jay-Z's Roc-a-Fella Records in the mid-1990s, and who now co-manages Kanye West's career—echoes Mr. Len. "It was common to have multiple samples in a song, like on Public Enemy or N.W.A. albums," Hip Hop says. "If you was to go into those records, you could look at one record and you'll see five or six samples for every song. There was more changeups and drums was changing on different parts, and samples was changing."

"I'm a big Public Enemy fan," Girl Talk tells us. "Even on the subconscious level I think it really affected me—just understanding sampling as an instrument and understanding the way people make their music like that." And MC Eyedea adds, "One of the reasons why we don't like most modern hip-hop is because we can listen to [Public Enemy records], and their arrangements are so much more complex than anything today." During hip-hop's golden age, artists had a small window of opportunity to run wild with the newly emerging sampling technologies before the record labels and lawyers started paying attention. "It was definitely a time when sampling artists could get away with murder and we just—we did," says Coldcut's Matt Black.

On Public Enemy's It Takes a Nation of Millions to Hold Us Back, Chuck D raps about white supremacy, capitalism, the music industry, and—in the case of "Caught, Can I Get a Witness?"—digital sampling: "Caught, now in court 'cause I stole a beat / This is a sampling sport / Mail from the courts and jail claims I stole the beats that I rail ... I found this mineral I call a beat / I paid zero." Our interviewees told us that no one bothered to clear the many fragmentary samples contained in Public Enemy's classic song "Fight the Power," which was featured in Spike Lee's Do the Right Thing (even though that film was released by a large movie studio and the soundtrack album was on a major label). As Chuck D explains, "It wasn't necessary to clear those albums, Fear of a Black Planet and It Takes a Nation, because copyright law didn't affect us yet. They hadn't even realized what samplers did." The music producer El-P waxes nostalgic: "It was just this magical window of time."


Excerpted from CREATIVE LICENSE by Kembrew McLeod Peter Dicola Jenny Toomey Kristin Thomson Copyright © 2011 by Kembrew McLeod and Peter DiCola. Excerpted by permission of Duke University Press. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

Table of Contents

Acknowledgments vii

Introduction 1

1. The Golden Age of Sampling 19

2. A Legal and Cultural History of Sound Collage 36

3. The Competing Interests in Sample Licensing 75

4. Sampling Lawsuits: Hip-Hop Goes to Court 128

5. The Sample Clearance System: How It Works (and How It Breaks Down) 148

6. Consequences for Creativity: An Assessment of the Sample Clearance System 187

7. Proposals for Reform 217

Conclusion 258

Appendix 1: Interviewee List 269

Appendix 2: Interview Questions 273

Notes 283

Bibliography 303

Index 313

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Creative License: The Law and Culture of Digital Sampling 3 out of 5 based on 0 ratings. 3 reviews.
rivkat on LibraryThing 5 months ago
Surveys the law and practice of sampling in music (mostly rap and experimental music), and argues that it¿s not working very well except for people who are well-connected and able to pay a lot of money. If you have a good relationship with key people, you can often get a sampling license; otherwise, not so much¿crony capitalism or way of the world? (164-65) Sampling can also cause problems of ¿stacking,¿ where one party asserts rights to the new work, which then gets incorporated into another new work, until the ownership is so dispersed that it¿s impossible to go on. A recent story about a lawsuit over a rap video/karaoke game shows how this creeps out into the broader universe of audiovisual works, not just intefering with recorded music.Things I noticed: critics of the value of sampling/remix often talk about the convenience/ease/lack of creativity in doing it, devaluing the huge amount of work (women¿s work, in vidding and fandom) that is actually involved. ¿The Beastie Boys and the Dust Brothers would ¿ painstakingly sync each of the other loops up with the first one, spending hours getting the layers to sound good together. It was a laborious process ¿ ` ¿ [Y]ou typed the track numbers into this little Commodore computer hooked up to the mixing board. And each time you wanted a new track to come in, you¿d have to type it in manually. It was just painful. It took so long. And there was so much trial and error.¿¿ Likewise, the work involved in compilation was both arduous and creative: ¿Not only was it time consuming to put the parts together, the search for musical materials was also laborious.¿ Of course, what counts as creativity is often a matter of power. For example, the authors point out that Western songwriting traditions devalue rhythm, so that songwriting credit and control is allocated based on melody and lyrical content, while what¿s sampled is often rhythm, meaning that the people who get compensated for samples are less likely to have contributed their creative value.A workaround to sampling is having the original musical work replayed, which avoids the need for the more-difficult-to-get sound recording license. What¿s interesting is the valuation that treats a replay as a nearly perfect substitute for the original recording: this is a workaround for capturing the sound itself, but not for capturing the history/community around the sound recording. Relatedly, the authors treat a work as ¿complex¿ if it¿s created with a bunch of samples, rather than looking to the complexities of meaning too. So the authors recognize one potentially positive consequence of the difficulty of sampling within the record industry as pushing sampling ¿even farther into more complex transformations and collages,¿ which here means distortions and changes that make the original sound unrecognizable, using fragments that are undetectable by the listener.I was also interested to see technique bleed¿one of the overall lessons of creativity research is that innovation often comes from applying techniques of one field to another field¿s problems. Public Enemy ¿wanted `to blend sound. Just as visual artists take yellow and blue and come up with green, we wanted to be able to do that with sound.¿ Hank Shocklee adds, `We would use every technique, no different than in film¿with different lighting effects, or film speeds, or whatever. Well, we did the same thing with audio.¿¿
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