8Sided Blog

thoughts about music’s place in the 21st century

Thank Me In Ten Years

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Last night I watched the new documentary about The Go-Go’s. The doc shares the name of the band, and I don’t know why that apostrophe is there, but it’s there, and it drives me crazy. Another thing that drives me crazy is when bands don’t evenly share songwriting credits (and, in turn, publishing royalties) and end up acrimoniously splitting up. Yes, one person may write all the songs. But that person didn’t come up with that drum part or that bass guitar riff, and the song wouldn’t be the same without those. 

This is a prime example of long-term thinking, as bands that swallow their pride and share songwriting credits are the ones that stay together for a long time. Just ask U2 — which you might find surprising as they’re known for having a singer with a Jupiter-sized ego. But U2 splits their songwriting credits four ways.

If you need further convincing, listen to this interview with REM’s Mike Mills on Brian Koppelman’s The Moment. Mills was a principal songwriter in that band from the beginning. And he explains that it took a lot of coaxing to get him to share songwriting credits on his songs equally with his bandmates. In retrospect, he’s thankful he did as he owes this to REM’s long career and continuing friendship.

And the other side of the coin — The Police.

If I were a band manager, this would be the first thing I’d tell any new band I took on: share your songwriting credits and share your publishing. Thank me in ten years.

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In today’s issue of his fantastic newsletter, Joe Muggs shared this video of Kraftwerk in 1973 publicly debuting Wolfgang Flür and his homemade electronic percussion. Says Muggs:

You can see the transformation happening in front of your eyes from the psychedelic band they were to the true, technology-centred Kraftwerk: even the outfits are mid transformation, smartened up but not quite the uniforms that would define them. Only months after this, they would record the Autobahn album.

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I had my first long conversation with a COVID-19 survivor. It feels like I should have spoken to many others as I’m here in Florida where things are, uh, not cool. It probably says a lot about the effectiveness of my sequestration. Anyway, I did not realize this friend caught the virus at the end of March. We’ve only chatted briefly online since then, understandably not the place you’d want to bring up the subject. In a phone call, he revealed his illness, and I was full of questions. Yes, it was 14 days of hell — it’s nothing like the flu, folks — but he was lucky and recovered. Even though he feels 100% most of the time now, he told me that there are moments when he feels unusually out-of-breath. He’s athletic, so this happens sometimes (but not all the time) when he’s doing sports-like activities. That’s scary, and I feel bad for the professional athletes who may not perform at a high level after recovering from this illness. Anyway, it was an illuminating conversation — hearing about the virus first-hand made it much more ‘real.’ If you know anyone who has had COVID-19, I recommend having an inquisitive chat if they’re willing. 

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Friend of Ringo and fellow Butthole Surfers fanatic Richard Norris — he of The Grid, Beyond The Wizard’s Sleeve, and a myriad of other projects — has announced a new album titled Elements. Richard describes it as fusing “warm analogue synths, widescreen ambience and pulsating, subtly changing sequencers, creating a hypnotic, mesmerising work.” It’s out on September 4. I haven’t bought a compact disc in a while, but if I did buy one, it would be Elements. The CD has the most gorgeous packaging. Here’s the first track (and the first element), offered as a preview: “Earth.”

Sampling Non-Stop

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CMU’s Setlist podcast is running a fantastic series of shows on the ‘Top Ten Legal Battles’ in the music industry. The latest episode is about a European court’s recent judgment over a two-second sample from Kraftwerk’s “Metall auf Metall”. As I’ve covered on the blog, the defendant lost. It’s all quite fascinating, and the podcast covers the ins-and-outs. The hosts also include a short history of sampling litigation and an easy-to-follow explanation of the rights in play. Check it out:

The unsuccessful lawsuit over a short horn sample in Madonna’s “Vogue” is discussed in the history section. The hosts remark that the publisher for the sampled artist — The Salsoul Orchestra — used ‘new technology’ to identify the short sample. I would make a bet this technology is the website whosampled.com. Rights-owners often consult this site to find who sampled their artists. I speak from experience — someone once contacted me regarding one of my sneaky samples, revealed to the sampled artist’s publisher via that site.

In other sampling news, CMU also recently covered Drake successfully arguing fair use for one of his samples. The sampled artist was Jimmy Smith, with a snippet appearing in Drake’s “Pound Cake.” It’s a sample of a spoken word bit from 1982’s “Jimmy Smith Rap” where Jimmy states that “jazz is the only real music that’s going to last, all that other bullshit is here today and gone tomorrow, but jazz is, was and always will be.”

The case is curious because Drake cleared the recording — usually the only requirement in sample clearance — but Smith’s estate argues that he should have cleared the ‘lyrics’ as well. So, Drake went for a fair use defense for his appropriation of the lyrics.

I’ve written before how fair use is a tricky argument. There aren’t any set-in-stone conditions that qualify for fair use, but there are some loose guidelines. In the end, it’s left to the opinion of the court. And surprisingly (to me), the court ruled in Drake’s favor.

CMU:

In the words of the Second Circuit: “The message of the ‘Jimmy Smith Rap’ is one about the supremacy of jazz to the derogation of other types of music, which – unlike jazz – will not last. On the other hand, ‘Pound Cake’ sends a counter message – that it is not jazz music that reigns supreme, but rather all ‘real music’, regardless of genre”.

The court goes on: “‘Pound Cake’ criticises the jazz-elitism that the ‘Jimmy Smith Rap’ espouses. By doing so, it uses the copyrighted work for ‘a purpose, or imbues it with a character, different from that for which it was created’”. Which, the judges reckon, is sufficient to constitute fair use.

That’s a coherent and straight-forward opinion. But I still feel the ruling could have gone either way. As I’ve said before if you’re going to argue fair use then be ready to defend that in court. And keep your fingers firmly crossed.

🔗→ Artist News Business News Labels & Publishers Legal Setlist Setlist: Top ten legal battles – The Kraftwerk sampling case
🔗→ US appeals court rules that Drake’s Jimmy Smith sample is definitely fair use

A Tale of Two Copyright Rulings

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This week saw a couple of big events in the world of music copyright. First off, resolution to the Kraftwerk “Metal On Metal” case in the EU courts, as mentioned previously. Here’s Complete Music Update:

The court said in a statement yesterday: “Phonogram producers have the exclusive right to authorise or prohibit reproduction in whole or in part of their phonograms. Consequently, the reproduction by a user of a sound sample, even if very short, taken from a phonogram must, in principle, be regarded as a reproduction ‘in part’ of that phonogram so that such a reproduction falls within the exclusive right granted to the phonogram producer”.

But what about the artistic freedom of the sampler that the German Constitutional Court was so concerned about? Well, the ECJ has put some constraints on its main ruling. […] In the words of the court: “Where a user, in exercising the freedom of the arts, takes a sound sample from a phonogram in order to embody it, in a modified form unrecognisable to the ear in another phonogram, that is not a ‘reproduction’”. That conclusion is necessary, the court then added, to properly balance the rights of an intellectual property owner with the rights of artistic freedom.

There’s been the myth of a time allowance on samples, that if one samples only two-seconds (or another arbitrary small amount) then, legally, everything is okay. This has never been true in the short history of sample litigation. The issue is identifiably and uniqueness. If, say, a jury can point to a phrase and agree that it’s an unauthorized appropriation of a master recording (a sample) then it’s likely deemed copyright infringement. The length doesn’t matter.

The confusion is probably due to the lack of precedent and definition in the US courts. There hasn’t been a high profile episode like the Kraftwerk complaint yet. So, while the ruling of the EU court doesn’t necessarily say anything new (and it doesn’t add any new limitations, despite what some clickbait headlines might lead one to believe) it is good to have the context fully explained by a legal body.

Then there’s the court’s additional opinion on the artist who artistically messes with a sample to the point of ambiguity. Of course, that artist is in the clear — thanks, EU court — but that’s not so much because it’s ‘artistic freedom.’ It’s that ideally, no one would identify the errant sample in the first place. In other words, sample away. Just be sure to muck that thing up beyond all recognition.

The other big copyright news concerns this Katy Perry vs. Flame outcome. Rolling Stone:

A jury unanimously ruled that Katy Perry’s 2013 hit single “Dark Horse” improperly copied Christian rapper Flame’s 2009 song “Joyful Noise.” The nine-member federal jury in a Los Angeles determined that Perry and her co-writers and producers will owe [$2.78 million in] damages for copyright infringement. […]

Perry, who was not present when the verdict was read, testified that she had never heard “Joyful Noise,” nor heard of Flame, before the lawsuit. Her co-writers testified similarly. Flame’s lawyers responded that the song was widely distributed, with millions of plays on YouTube and Spotify, and reminded the jury of Perry’s origins in the Christian music scene. His team argued that Perry and her team had ripped off the main beat and instrumental line of “Joyful Noise.”

One remarkable aspect is the quoting of YouTube and Spotify plays as evidence that obviously everyone’s heard the song. Umm … okay. Have Spotify plays been argued as evidence in court before?

My feelings, but dialed down a bit, echo those of YouTuber Adam Neely in this video (and kudos for pointing out the similarity of the phrase in question to a famous song by The Art of Noise, which I haven’t seen anyone else mention):

Additionally, Flame’s Marcus Gray added in his original complaint that “Joyful Noise” has been “irreparably tarnished by its association with the witchcraft, paganism, black magic, and Illuminati imagery evoked by the same music in ‘Dark Horse.‘” Of course, there are some kooky internet ‘theories’ out there about Katy Perry and the Illuminati. But I don’t know why people fear the Illuminati so much … if this all-powerful organization couldn’t help Katy Perry win this case then I doubt they’re competent enough to secretly run the world.1Though a hidden overload’s incompetency could explain the current state of affairs.

Conny Plank: The Potential of Noise, a Son’s Tribute

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The documentary Conny Plank: The Potential Of Noise was more touching than I expected. The film is a collaboration of director Reto Caduff and Stephan Plank, Conny’s son. Stephan drives the documentary as conversations with musicians who worked with Conny Plank help him understand and rediscover his father.

Conny Plank died of cancer at 47 when Stephan was just 13. A lot of Stephan’s memories of his father revolve around these odd musicians who stayed and worked at the farmhouse studio. Often the musicians would join the family for dinner (indulgently prepared by Stephan’s mother Christa), and they would become Stephan’s temporary playmates in between sessions. So, in this documentary, Stephan is meeting people who not only have perspectives on his father but are also part of shadowy childhood memories. The musicians are also taken aback — the last time they saw Stephan he was a child and an oblivious studio mascot.

The highlight of the documentary is Stephan’s meeting with the classic rap duo Whodini. Did you remember that Conny Plank produced part of Whodini’s first album? I forgot, too, until this film pleasantly reminded me. Whodini was an upstart act in their late teens, suddenly flown to a farmhouse in rural Germany in a bold choice by their label. The duo grew to love the eccentric but brilliant Conny Plank, and this love and respect pour out of their interview segment. Stephan is visibly emotional as he hears another warm story of the universal impact and guiding influence of his father. Even I choked up a little.

There’s so much more in this film, including interviews with Michael Rother (Neu! and — early on — Kraftwerk guitarist), Eurythmics’ Dave Stewart (who may have been the last to work with Plank), and Holger Czukay (Can). Czukay comes off as kind of a jerk in his honesty about how Conny cared more about his studio than his relationship with his young son. It seems that Stephan has come to terms with this.

Noticeably absent is Brian Eno who stepped into Plank’s studio on more than one occasion. A section on the recording of Devo’s first album allows Eno most of his screen time, and that’s given to Gerald Casale talking about how he didn’t like Eno’s attempt to add his ‘pretty’ vocals and synth lines throughout the record.

Conny Plank: The Potential Of Noise is inspiring and a stirring tribute to a person who lived the creative life. But most of all it’s the story of a son finding his talented but distant father. With Father’s Day approaching, I can’t think of a better movie to watch, especially for those of us missing our dads.

Conny Plank: The Potential Of Noise currently streaming on Amazon Prime and available as a ‘rental’ on other services. And here’s a fine interview with Stephan Plank about the documentary. For what it’s worth, I’m pretty sure the no-show Stephan refers in that piece is Eno, not Bono.

Trouble for the Two-Second Sample

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There’s a misconception that sampling has a time limit, that one can legally sample anything (a drum hit, a vocal yelp, a guitar riff) as long as it’s short. I’ve heard various guidelines set for this assumption with the two-second mark as the most common. It’s not true. If a judge or jury can identify a sound — any sound — as originating from a copyrighted source, you’re probably in trouble.

Granted, the US courts have not been consistent in how they rule on this, and it’s fair to say there’s no set precedent here. But, in the EU, this may no longer be the case thanks to repeatedly snubbed Rock-and-Roll-Hall-of-Famers Kraftwerk and the synthesized sound of banging metal.

via Billboard:

The case involves a two-second sample from “Metall auf Metall,” which the producers Moses Pelham and Martin Haas used as a continuous background loop in the 1997 song “Nur Mir.” Although the sample consists of just two seconds of the original song, it’s recognizable and important in “Nur Mir,” which is performed by the singer Sabrina Setlur. […]

… Advocate General Maciej Szpunar advised the European Court of Justice, which is deciding a copyright case that involves Kraftwerk’s “Metall of Metall,” that even limited sampling of a recording can constitute copyright infringement. Advocate General opinions are not binding, but they’re watched closely, since they often predict the way the high court of Europe will decide cases.

The case is interesting as it involves only the recording (master) side of the music and not the composition (written song). The idea is that one can take a ‘sample’ of a written song in isolation — such as a couple of notes or a few words — and it would be too general to constitute infringement. The failure of the recent “haters gonna hate” lawsuit illustrates this. But a recording is specific, easily traced to its rights-holder. Complete Music Update once again provides the most helpful explainer:

Basically, when you sample a two second clip of a track, you are sampling both the recording and the song contained within it. But it might be hard to argue that the two second snippet of the song can be protected by copyright in isolation. However, at the same time you could argue that the two second snippet of the recording is.

The ‘Metal On Metal’ case centres on the recording rights. In essence, in the 2012 court hearing, when one argument on the Kraftwerk side was that Pelham could have recreated the sounds he sampled, they were basically saying that there was no song copyright to infringe here, but that the separate recording copyright had been infringed by the uncleared sample.

In his ruling, the Advocate General wrote, “A phonogram is not an intellectual creation consisting of a composition of elements such as words, sounds, colours etc. A phonogram is a fixation of sounds which is protected, not by virtue of the arrangement of those sounds, but rather on account of the fixation itself.” Feel free to substitute ‘phonogram’ with ‘recording’ as you read that.

Billboard again:

Some of the questions referred to the European Court of Justice involve details of European law, including whether the German concept of free use is compatible with EU law. But others get to the center of the debate around copyright and free expression. Generally, most countries’ courts have held that quotation doesn’t infringe copyright when a new work refers to the original one – in a book review, or even in a parody of a song. But what about when the new work has nothing to do with the original? Such questions have increased urgency in the digital age, and this is one of several important cases on the topic.

I wonder if this will create more consistency in how the courts rule on ‘short sample’ cases in the US. And I also wonder if New Order ever had to pony up for their own short Kraftwerk sample in “Blue Monday.”