Been Caught Stealing

My samplersecond Pop Conference presentation, from 2003. The audio from this one is still available at KEXP. I believe E. Michael Harrington was on the same panel, with a proposal for a much more sane sample clearance apparatus in which any sampled entities would automatically split a % of the song’s earnings, sampled works would have to have been in the market at least 5 years, and samples would have to be under 10 seconds. Seems like a reasonable set of conditions to me.

I Was Going To Title This Paper “Been Caught Stealing,” But Warner Wanted Five Grand And Perry Farrell’s Publisher Demanded 50% Of Any Money It Ever Made: Why All Artists Should Be Horrified By Sample Clearance Practices

I’m going to talk about sampling from the artist’s perspective. Actually, I guess, there are two artist perspectives: there’s the one of the artist doing the sampling, and there’s the one of the artist being sampled. Although almost everything I say is going to describe the view of a sampler rather than a samplee, I really don’t think there’s any serious difference between the two, and I hope by the time I’m done you’ll understand why that’s so. Although the sampling battles that make it as far as court are often reported and debated as though they pit the interests of two artists against one another, that’s a gross oversimplification. Sampling disputes always represent a conflict between the rights and needs of an artist and the rights and needs of a copyright owner, and that’s a very important distinction for two reasons. Reason number 1 is that the copyright owner usually isn’t an artist, but a corporation that has amassed its market power by convincing as many artists as possible to transfer their copyrights to the corporation. Reason number 2 is that even when the copyright owner actually is an artist, he almost never talks like one while he’s pursuing a copyright infringement case.

I admit those words – “artist” and “corporation” – are loaded. One sounds pure and noble while the other sounds greedy and automatically suspect. For now, you just have to take my word that I don’t mean them that way. Chances are you know some artists personally – if so, you’re already aware that they can be every bit as selfish, arrogant and grasping as Vivendi Universal or AOL Time Warner. So this isn’t an “artists good, corporations bad” spiel.

It is, however, a “copyright law has gotten seriously screwed up over the last decade” spiel. I’m going to illustrate my point with some real life examples – the life in question being my own. I was in a punk-pop band called Too Much Joy for most of the ‘80s and all of the ‘90s, and I’ve gotten my copyright law education the hard way, while trying to navigate the weird world of sample clearance before and after Judge Duffy’s monumentally retarded 1991 ruling against Biz Markie which essentially destroyed the notion that there’s any such thing as fair use when it comes to sampling.

Now, Too Much Joy are hardly poster boys of the sampling movement. We weren’t suppressed provocateurs like Negativland or genre-defining visionaries like the Bomb Squad or the Dust Brothers. If I’m being totally honest, we weren’t even Pop Will Eat Itself. We were just some kids trying to make some music, but because of where and when we tried to do that, we watched as making certain kinds of music went from being a thrilling new possibility, to a potential crime, to something you’re only allowed to do if you have enough money to pay the people who control whichever corner you’re busking on today.

sosiaOK. So it’s September 1988, and TMJ are recording our second album, funded by the kind folks at an indie label called Alias. Our bass player loves Public Enemy as only a rich suburban white kid who’s just graduated from Yale can, and we’ve been playing “It Takes A Nation of Millions…” pretty much non-stop in the van for the last three months. Looking back, I think we loved that record the same way we’d loved the Clash’s debut – because we were so removed from the social concerns that each addressed so aggressively, we could only appreciate that layer intellectually; on a gut level, we responded to both albums as pure music, sonic assaults unlike anything we’d encountered previously.

That pemight be why I have very little patience for academic defenses of sampling as a natural extension of an oral tradition or as a means of reflecting the social milieu or a method of linking present and past. I don’t deny that sampling can do all those things, I just think claims like that begin with the assumption that sampling might be morally questionable and therefore needs some ennobling purpose to justify its use. To me, sampling is just another way of making music, and that’s all anyone needs to say. Samplers shouldn’t need to explain why their work has merit on its own; copyright owners should have to demonstrate that a particular sample somehow crosses the line of fair use and seriously threatens the original author’s economic interests.

Just because that’s not the way copyright law currently works doesn’t mean it’s not the way it should. The thing that drives me most batty about sample clearing is what I call the “Why Do Dogs Lick Their Balls?” line of attack, in which publishers and sound recording owners come after artists who sample for one simple reason: because they can. This is one area where we can’t keep arguing backward from existing law – we need to start with first principles and go from there. I’m only going to quote one bit of law during this presentation, but it’s a good one. In the landmark Betamax decision, Justice Stevens explained quite clearly that the monopoly powers inherent in a copyright – and it says this right there in the Constitution — are designed to benefit society, not authors and inventors: Copyright’s purpose, he writes, is not

to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired. The copyright law, like the patent statutes, makes reward to the owner a secondary consideration.

That’s the thing everyone seems to forget once he controls a copyright: reward to the owner is a secondary consideration. The primary goal is achieving an important public purpose by motivating the creative activity of authors. Almost all current sample clearance practices do the exact opposite: they encourage authors who have already created to bleed as much money as they can from those works rather than creating new ones, while quashing the efforts of authors who dare to create new works that use the tiniest snippet of an old sound recording.

The remedy seems simple to me: we need a system that establishes reasonable parameters under which anyone can sample anything.

All right. End of philosophical digression. On to the anecdotes that illustrate those principles. Like I said, it’s 1988, and if you’re a music geek (and anyone in an indie rock band in 1988 is a music geek), playing spot-that-sample is one of your new favorite pastimes. Lacking both the skill and the desire to build songs from the ground up using snippets of other works, but wanting to honor our heroes, we decide to use samples as a special sauce: sprinkling them throughout and in-between tunes on our record. Sometimes they’re relevant to the song itself: in a tune about how the Clash broke our hearts, we drop Mick Jones saying, “So hit it” from “Hitsville U.K.,” we have the Police answer the line, “I wasn’t alive in 1964,” with a mocking “We were!” from their tune, “Born in the ‘50s,” and of course we use Chuck D. shouting “Bass!” just before our Yale grad takes an ostentatious bass solo. Other times, we just like the way the samples sound – our guitar player has been imitating Big Country’s Stuart Adamson shouting “Sha sha!” on a number of ours called “Connecticut,” so we figure what the hell and just drop in the real thing.

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Maybe we’re simply young and stupid, but it never occurs to us that there’s anything questionable about what we’re doing. Probably the only time we’d ever thought of sampling in moral terms was when we’d first heard Grandmaster Flash’s “White Lines,” and recognized the bassline from a Liquid Liquid track. Since the hook from the new tune was pretty much the hook from the old tune, that felt like some kind of line had been crossed. Even then, though, we didn’t think it was illegal – just lame.

Anyway, when our record, Son of Sam I Am, comes out in 1989, it’s not the musical snippets that get us in trouble – it’s a sample of Bozo the Clown, which we used to introduce a song about how parents seem to think clowns are harmless even though all kids know that clowns are weird and evil.

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Apparently Larry Harmon, the original Bozo, has a clipping service, and he’s read a review that specifically mentions the sample, and he’s pissed.

Bozo’s attorneys send us a threatening letter with all kinds of legal jargon and a big red white and blue picture of a smiling Bozo in the corner. Bozo wants us to pull the record off the market, and he wants us to pay him damages. Because we’re in the process of signing a deal with Giant/Warner Brothers at this point that includes Warner re-releasing Sam, and Warner also wants Alias to stop selling their version, the cease and desist bit does not seem like such a big deal. Alias offers Bozo $200. He accepts.

The impression I’m left with is that Bozo didn’t really care all that much about the sample, and just saw a way to make a quick buck. Then again, I don’t know what would have happened if we hadn’t been planning on pulling the Alias record off the market anyway. It’s certainly possible that Larry Harmon was more concerned with the unflattering way the sample portrayed him. But you know what I say to that? Tough shit, you fucking clown. You said it! All we did was remind the world.

The very goofiness of this particular incident obscures an important principle: copyright can be used to prevent unflattering commentary on copyrighted works. And again, that has more potential to suppress authors than it does to motivate them. Existing copyright owners now have powers that extend far beyond the economic incentive copyright’s supposed to grant. They wind up with the power to dictate how they may or may not be portrayed, not to mention what genres of music may or may not flourish.

Back to 1989. To give you an idea just how undefined sampling rules were back then: after stripping out the offending Bozo sample, and adding in three new tracks, Warner Brothers re-releases our album with no other changes. Bono’s still on there. So’s Sting, and the Clash, and the Gang of Four and Lou Reed and a host of others, all as potentially infringing as Bozo.

Three years later, though, everything’s changed. We’ve just finished our latest album for Giant. We haven’t settled on a title yet, but we’re thinking about calling it Burn Down the Suburbs with Too Much Joy, after a line from “Clash City Rockers” in which Joe Strummer sings, “burn down the suburbs with the half-closed eyes.” In fact, the album starts with a sample of that very line: we’ve looped Joe singing “burn down the suburbs with” three times, then appended ourselves singing “Too Much Joy” off a tune on our previous Giant release. In order to get the keys to match, we’ve had to slow Joe down to the point where his voice is unrecognizable, but we’re still excited to have him kick off our record.

Alas, it’s not to be. Shortly after sending the label the master tapes, our manager receives an envelope from the Warner Brothers legal department containing something called a sample clearance report. This is our third record for the label, but the first since the Biz Markie ruling, and we’ve never been sent one of these. As we read it over, it becomes clear that some poor lawyer has had to sit through our album with headphones on, hitting pause and jotting down notes any time he hears something that might possibly be a sample. The report notes the intro snippet, and enquires as to its source. The report also mentions several other interstitial moments, one of which is a radio conversation between our drummer (who was also a NYPD patrol officer) and his South Bronx headquarters, another of which was some testimony I’d taped off of Court TV. The report says we have to obtain permission from the copyright holders in every instance.

So we try. But Sony, the owner of the Clash bit, wants five thousand dollars for it (that’s $1000 a word), a sum Warner refuses to pay, as we’re already slightly over budget for the record. Needless to say, none of the individual band members has a spare five grand at this point in our lives, so the intro is reluctantly excised.

We explain that the radio bit is actually our drummer’s voice, but the lawyers tell us that the recording is most likely owned by the NYPD, and we will need their permission to use it.

Now we’re losing our patience. None of this stuff is integral to any of the songs, but all of it creates bridges between one tune and the next, and makes for a more interesting and thought-provoking listening experience. But the cost seems to have no relation to the use – if we have to pay five grand a piece for each sample, not to mention legal fees for getting all the paperwork signed, we’ll end up spending more than 10% of our recording budget for less than nine seconds of sound.

So we do what many (possibly most) artists who sample after 1991 will learn to do: we mix everything down a little lower, and then we lie about the source. We’ve already blown our cover on the Clash sample, but we say we recreated all the rest in the studio. The lawyers ask if we’ll sign a piece of paper to that effect, and we say sure.

The thing that drives me craziest about the Clash sample is that no one ever asked Joe. It was just a lawyer at Sony giving a lawyer at Warner an arbitrary figure, and to this day I consider that an abuse of Sony’s copyright. Moreover, I eventually learn that the original author’s desires are often irrelevant in these cases.

I learn that in 1995, and though this time it doesn’t involve an audio sample, the principle’s the same. We’re getting ready to release another record, and we want to include a quotation from one of my favorite authors in the liner notes. The author’s Terry Pratchett, the book’s Soul Music, and the quotation perfectly sums up the way I feel about my chosen profession:

“In my experience,” said Glod, “what every true artist wants, really wants, is to be paid.”

“And famous,” said Buddy.

“Famous I don’t know about,” said Glod. “It’s hard to be famous and alive. I just want to play music every day and hear someone say, ‘Thanks, that was great, here is some money, same time tomorrow, okay?’”

Since I want to include these words of wisdom in my liner notes, I track down Terry Pratchett via email and ask him if that’s O.K. He writes back and says that would be fine, provided we credit him and I send him a copy of the record when it comes out. This seems like a good deal to me, and I dutifully forward the email on to the legal folks at the label.

So imagine my surprise a few weeks later when someone from the label calls me up and says she has good news – she’s cleared the rights to the Pratchett quote, and it’s only going to cost us $300! I explain that I have already gotten permission to use the quote for free. She tells me that’s meaningless, as Terry Pratchett doesn’t have the authority to give us permission – she negotiated a rate with Harper Collins, Terry Pratchett’s publisher. I can only hope that Terry got a cut, even if he didn’t want it.

Something similar but 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. The sample comes from the movie Simon, starring Alan Arkin. At one point, Arkin’s character says, “Uh oh, too much joy.” I’d naively assumed that since I’d taped this off the Simon video, which was released by Warner Home Video, and we were signed to a Warner label, we’d have no trouble getting it cleared. But I was wrong – once again, the fee for five words was going to be $5000.

Of all the examples I’ve cited, this one makes me angriest, because my band would have been charged $5000 by Time Warner to use material controlled by Time Warner. In other words, it was nothing more than a way for the company that controlled our sound recordings to put us $5000 deeper in debt to them.

And that, ultimately, is the most serious unintended consequence of sampling clearance practices as they currently work: they do little to reward the original artist, but much to cement and extend the control enjoyed by existing aggregators of copyrights. Plenty of independent artists today sample in blissful ignorance or willful disregard for the law. But if they have the good fortune or simply the desire to see their sales cross a certain threshold, they can be in real trouble, as trying to clear samples after the fact is a dangerous and costly affair. Assuming the assorted rights holders are even willing to let your samples stand, clearing them can cost anywhere from $2500 to $10,000 per sample just for the sound recording rights – and those fees are often merely an advance against any future royalties, which now have to be shared with the label that controls the sample. Getting the publishing rights can be even more surreal, since the sampled composers often ask for a percentage of the publishing royalties, and if you’ve got several samples in one song you could actually find yourself giving away MORE than 100% of your publishing. Even if you believe that sampling should cost something, I think you have to concede that any system that allows old copyright owners to earn more than the total value of the new artist’s work is seriously out of whack. Assigning 150% of your publishing to other entities is probably the exception rather than the rule, but it has been known to happen, and underscores a disturbing trend: sample clearing forces new works under the control of existing copyright owners, whether the new artists want to sign with them or not.

Siva Vaidhyanathan summed up this state of affairs quite incisively in his book Copyrights and Copywrongs: “The tension in the law is not between the urban lower class and the corporate uber-class…it is in fact a struggle between the established entities in the music business and those trying to get established. It is a conflict between old and new…by the late 1990s, rap artists without the support of a major record company and its lawyers, without a large pool of money to pay license fees for samples, had a choice: either don’t sample or don’t market new music.”

But I would argue that existing sample clearance practices are just as bad in the long run for established recording artists as they are for emerging ones. As my music attorney friend Whitney Broussard likes to point out, clearance fees tend to earn money for labels as a whole, while losing money for artists as a whole. The math is simple enough: assume for a moment that all samples cost $5,000. But the sampled artist only sees that money if he’s recouped, and even then he typically only sees half. So, even in a mystical wonderland where all old acts are recouped and actually being paid royalties by their labels, every cleared sample costs artists as a whole $2500 (the $2500 the sampled artist earns, minus the $5,000 the sampling artist pays), while earning $2500 for labels as a whole.

There are some who think that’s just as it should be: if an unproven act must resort to sampling someone more widely recognized in order to get noticed in the first place, it stands to reason the newbie have to pay for the privilege; and if the act he sampled never recouped on its own, then it’s only right that the label should use this new revenue stream to offset some of their sunken costs.

But again, assumptions like those use a businessman’s logic, not an artist’s: they assume the only reason to sample is to get a head start by stealing someone else’s work. And ironically, rules based on those assumptions lead to unimaginative sampling becoming the norm, while making the kind of sampling I fell in love with (Siva calls it “playful, transgressive sampling”) virtually impossible, no matter how much money you have. Once you have to give away most of your recording budget and a percentage of your publishing in order to clear samples, the number you can use in a given song gets lowered dramatically, and you’re far more likely to start using riffs with a proven track record, and to feature them prominently as opposed to using them once never to return again.

Maybe I’m breaking my promise here, using “businessman” as a pejorative and “artist” as an exemplar of all that is good. But I’ve been both, so I feel comfortable saying they represent two different ways of thinking. And in this particular instance I think selfishly creating artists do far more good for society than selfishly bargaining businessmen. Mark Hosler from Negativland said everything I think but couldn’t put into words in an interview with the Onion. The writer asked him if maybe Negativland wanted to be sued when they continued to sample after their U2/Casey Kasem imbroglio, and Hosler insisted absolutely not. Here’s how he explained himself: “I don’t want to live in a world where I am afraid of making the kind of art I want to make…So one approach is that you try and live your life and live in the world the way you’d like it to be.”

That’s what I’ve been doing lately. The stuff I’ve recorded in the last few years basically writes with samples. We take a snare hit from one record, a cello note from another, a piano trill from a third, reverse the signals in pro tools to create instruments that don’t exist and build from there. With one or two exceptions, the sources are unrecognizable, and we don’t sell nearly enough records to register on the sample police’s radar screens even when they are. In a perfect world I’d be able to credit each and every musician who helped us create something new, but as things stand if I were to do that I wouldn’t be able to get a CD manufacturing plant to press the records, or a label to release them.

I think that’s tragic, and I get seriously depressed whenever I consider all the music that hasn’t been made since 1991 because of sampling laws. But if I have to choose between making the art I want to make or negotiating for those few notes I can afford, there’s no question in my mind which one’s the right thing to do.

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