Buying / Selling / Blocking Creativity: The Sampling – Music Industry Conundrum

On October 24, 2011

The essential product being sold by the record is creativity: The use of the imagination or original ideas, especially in the production of an artistic work. Given that definition, are the rules surrounding sampling and copyright actually helping or harming the music industry?

I first would like to discuss Mark Katz ‘s “Listening in Cyberspace”, and his ideas of a medium as Rivalrous and non-rivalrous. His statement of an idea as a non-rivalrous medium is important throughout this discussion of copyright and sampling. By nature, the mp3 as a digital format is a non-rivalrous form; it can be copied and transferred and not a bit of information will change. This form has allowed it to be misused and distributed freely online through Peer-2-Peer (P2P) networks and directly from user to user. This distribution, a clear breach of copyright, has yet to be successfully controlled, in particular due to the millions of “criminals” and the belief of many that what they are doing isn’t even wrong. The problem the industry faces is not only finding a suitable control without alienating their consumer base again, but educating further generations so they understand their actions. Like many copyright issues, the rules are just too blurred. 

Before the issues of mass piracy through P2P and the mp3 and before the so call “Napster Moment”, the music industry was part of a different kind of copyright battle. Sampling had become popular through new technologies and the emergence of genres based on the technique of capturing, manipulating and looping other works. This musical recycling was not a new phenomenon, but had evolved over 50 years of experimentation and innovation. Imaginary Landscape No1 (1939) by composer John Cage was an early example of this creativity. The Music Concréte (1948) movement followed, and with the arrival of analogue tape new forms of recording, sample manipulation, and significantly, composition became available. Synthesis technology gave way to new sounds and creativity, and with the popular uptake of the Moog synthesisers, the two methods of sound creation began to amalgamate. The Mellotron, the earliest form of keyboard triggerable sampler, became synonymous with the psychedelic movement of the 1960s. The Fairlight CMI digital sampler/sythesizer was hugely popular in the late 1970s and was fashioned by the likes of Peter Gabriel, Herbie Hancock and Kate Bush. The 1980s were dominated by digital samplers from the likes of Akai and Roland. The industry was booming and emerging genres emerging such as rap and electronica were leading the demand for such technology. 

Although sampling had been around for around half a century, it wasn’t until it had reached huge popularity and a mass market that it started to upset the commercial music industry. Although laws were in place during all of these movements, the 1988 copyright act stated that a “substantial part” must be copied before there is a breach (Section 16(3)(a) CDPA); something many people who went to court cited as unclear. It wasn’t until the Biz Markie vs. Gilbert O’Sullivan case (Grand Upright Music vs. Warner Bros, 1991) that a significant case of copyright infringement begin to effect the way samples were being used. The case itself had a huge effect on hip hop production and soon lead to the industrialisation of sample licensing and clearance. Although right to protect his copyright, Gilbert O’Sullivan regretted the court action and wished it could have been avoided. 

In Mark Katz’s Music in 1’s and 0’s, he intends to outline three well-referenced cases of sampling and manipulation of commercial works – Notjustmoreidlechatter, a work by composer Paul Lansky, Norman Cook’s usage of Camille Yarbrough’s Take Yo’ Praise for his track “Praise You” and the sample concentric composition of Public Enemy’s “Fight The Power”

Katz begins with a case study that focuses on creativity rather the difficult matters of copyright infringement. In a style resembling the era of Music Concréte utilising the modern day technology of digital sampling, his experimental work stemmed from his work on the C-Mix language and his musical background. His experiment with algorithmic landscapes of sounds lead to his famous Notjustmoreidlechattera piece comprised of speech played as if were music. This lays the benchmark for this conversation in relation to creativity vs. copyright in the sampling world. Could every voice in this composition be subject to a copyright infringement?

It is interesting that Katz moves on the the Norman Cook case study next; I believe the evolution in sampling came with Public Enemy, so I’m going to review it first. 

Katz describes Hip Hop production from 1989 – Public Enemy’s “Fight The Power”. The track contains multiple samples from other works, but these were broken down into such small pieces and looped or manipulated to distract you from the original piece of music it came from; there was no intention to steal. It was popular at the time to ‘borrow to create’ and to hark back to your influences. If you read the list of the artists sampled in this tack, there is certainly a note of pride in the black musicians featured: James Brown (and his drummer Clyde Stubblefield), Uriah Heap, Bob Marley, Guy, Trouble funk and others. This sample culture existed up until such cases as Biz Markie vs. O’ Sullivan and De La Soul vs. The Turtles. 

The Norman Cook study is a little more open and shut. It sounds far too over analysed, and it was also interesting to note the animosity towards Camille Yarbrough by the author and other critics. Yarbrough was happy for the sample to be used, was content with the creative context and, although it had a racial undertone and a personal meaning to her, she believed its message of “Praise” was being constructed in a new but decent way. Although the medium had changed slightly, it still had the same message. For Norman Cook, it served its purpose as a means to his creativity. 

The person I feel for the most is Clyde Stubblefield (aka the Funky Drummer). He is believed to be the most sampled person in commercial music. It is interesting to note that he has never received a penny from performance royalties for anything that the sample is used on (as a session musician he received a one-off fee). As he is the creator of that pattern and no other musician is in the loops he appears in, many believe he should be the sole owner of that piece and its copyright. But the copyright is not owned by him, nor by the artist he was playing for, James Brown. It is the label who own the copyright and it is they who are protecting their “product” in many of these cases.

Paul Miller’s text In Through the Out Door expresses similar beliefs in regards to “the idea” and the digital world’s exchange and engineering of ideas. Although his writing is eccentric, he is essentially trying to reach the conclusion that ideas are the stem of creativity and that those ideas should be open for manipulation and sometimes improvement so they can evolve into a new form. Can these thoughts and ideas be subjected to law and copyright? A brilliant discussion on NPR’s Science Friday programme evaluates the concept of copyrighting ideas. To hear it, click below:

NPR Science Friday – Digital Music Sampling: Creativity or Criminality

What is still unclear to me is the decision-making process behind sample clearing. I looked to Anne Harrison’s Music: The Business (p.228) for some answers. Although she gives a good account of where to start and what to do, the decision making is somewhere between the label, the artist and if third party, the songwriters and publishers. But one thing is clear: all samples must be cleared, no matter how manipulated or unrecognisable the used sample is from its original. I would like to know who really holds the power in these situations. The licensing and purchasing system of sample clearance irks of an industrial process that capitalises on a popular creative technique. Although the protection of works is important, fair use would be a mitigation factor for many of these cases, especially where works are not being purposely “stolen” or misrepresented. A blanket policy of “clear or be sued” is a simplistic attitude and one that damages potential creativity for those with a genuine artistic use. Was this due to a genuine need to protect, or did the industry spot a chance to monetise the process of sampling?

Many of those who are creating music with samplers will tell you that they are simply trying to be creative in the same way that person who played that drum pattern or that guitar part were. To hear many interviews with DJs and artists on this subject, I suggest you watch the “Copyright Criminals” documentary. 

(This is only the trailer but the full documentary is on youtube – the irony…)

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