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 watchedclosely, 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
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,
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.”
Brian Eno & David Byrne’s My Life in the Bush of Ghosts is often credited as one of the first ‘sample-driven’ albums. It can be argued whether or not its cut-and-paste tape embellishments are ‘samples’ in the Art of Noise “Who’s Afraid Of?” or The Bomb Squad sense, but the influence is undeniable. The album did alert many already art-inclined musicians to the possibilities found in adding sounds and dialogue to productions. Rather than sampling, we could say it popularized collaging.
I was on a high school trip to Disney World, probably around 1986, and we ended up in Panama City for an overnight rest stop (we were coming from Louisiana). I was hungry for ‘alternative’ records, as they were scarce in small town I lived in. So, in our short stay in Panama City I sought out and somehow found an underground record shop. I was tempted by the many albums I’d never heard of — they all looked like something I should listen to — but I only had money to buy one. I did what you did in those days: I asked the record clerk for his recommendation.
He asked me what I was into and where my taste currently resided. I’m not sure what I said, but I was mining early Cabaret Voltaire at the time (Red Mecca was an obsession) so that may have influenced his decision. He pulled out a vinyl copy of My Life in the Bush of Ghosts and asked, “Have you heard this?” I hadn’t, so he insisted I spend my cash on this unassuming-looking album. Once I returned home and put the album on the turntable I was transfixed. It was weird, completely different than anything else, and organic and sloppy while other sample-based/electronic albums at the time were technical and precise. I wish I could thank that guy at the record store.
I bring up My Life in the Bush of Ghosts today because of this sad news story reported in Soundblab:
Less than two weeks ago from this writing (December 2, 2018), the body of longtime progressive radio host Ray Taliaferro was discovered in the woods near Paducah, Kentucky. Taliaferro was a pioneering black broadcaster and community leader in San Francisco starting in the late ‘60s. Sadly, he suffered from dementia in his later years and mysteriously went missing several weeks before his body was found.
It’s hard not to think about Taliaferro wandering disoriented and alone when he was a lamp to so many in life. For posterity though, his voice was captured in a much more vibrant moment as the first that is heard on Brian Eno and David Byrne’s collaboration, My Life In The Bush of Ghosts.
If you know the album you immediately know the voice: “America is waiting for a message of some sort or another.” It’s so matter-of-fact, but ominous, almost authorative, denoting a conspiratorial paranoia that we recognize all-too-well in 2018. I knew nothing about Ray Taliaferro — I didn’t even know he was behind the song’s vocal until today — but he seems to have been a well-respected broadcasting forerunner. I wonder what he thought about his voice on “America Is Waiting,” portraying him with nervousness and an almost methodical mania.
This brings up some of the problems expressed about My Life in the Bush of Ghosts. There’s a matter of cultural appropriation and context-shifting that could be extended to Ray Taliaferro.
At the time, fellow world-tapping producer Adrian Sherwood seemed to sneer at this and Eno’s intent of creating a “vision of a psychedelic Africa” when he titled an African Head Charge album My Life in a Hole in the Ground, not soon after the Eno/Byrne release. Sherwood also later appropriated the Eno quote for another album title.
Writing for Getintothis, Jono Podmore is heavily critical of Eno and Byrne’s ethics with regards to the project but eventually celebrates the tension:
The musicians were by and large white but the style is rooted in African American forms of funk, replete with thumb slapping bass and the sound world of George Clinton. There’s no rock drum sounds, no wailing guitar solos. And then there are the “found voices”. Of the 10 tracks on the original release, there are 9 vocals and 6 of them are American, and at least half of them are clearly African American voices. None are African. There’s a sense of selling American culture back to itself as exotica. A slight change of context, a touch of “African psychedelic vision” and the picture we get is a Pynchonesque world, a filmic unreality directed by Wim Wenders featuring Harry Dean Stanton as a sweaty southern preacher …
Cultural appropriation is a tricky subject. No one disagrees that the originators should get their due. And context-shifting is fine and dandy until it happens to you. But the mash-up of different cultures is how new movements and genres are made — Hank Shocklee has even stated the influence of My Life in the Bush of Ghosts on The Bomb Squad and his innovative production for Public Enemy. And these combinations also release a bubble, inspiring fans to track down the influences. Paul Simon got a bit of flack for Graceland, but the album did turn a lot of people (including me) onto Soweto street music.
Even Jono Podmore admits, “The first African book I ever read was My Life in the Bush of Ghosts – because the album had introduced the title to me.” The line is even blurrier once we learn that Eno and Byrne never read the book themselves — they just liked, and appropriated, the title.
Spotify and Apple Music could soon get the legal grey area of music like remixes and DJ sets that today live unofficially on SoundCloud. Sony Music Entertainment today became the first major record label to allow its music to be monetized through unofficial mixes thanks to a deal with rights clearance startup Dubset. That means Sony’s master recordings will be indexed by Dubset, and rights holders will be compensated even if just a tiny one-second snippet of their song is used in a DJ set or remix.
A source tells TechCrunch that Dubset is getting closer to securing deals with the other two major labels Warner and Universal.
If it can lock down all three, remixes and DJ sets featuring almost any music could be legally hosted on the top streaming services instead of being barred or removed for copyright infringement. That might eliminate the differentiation that’s kept struggling SoundCloud afloat. Illegal music uploaded there has sometimes flown under the radar since SoundCloud is protected by Safe Harbor law regarding user generated content. But if it’s legally available on Spotify, Apple Music, and elsewhere, listeners wouldn’t have to go to SoundCloud.
Could we be stepping closer to a mainstream acceptance of remix culture? A future where derivative works are not only allowed but encouraged is a divergent music future, indeed. As previously stated on this blog, if you can clear unauthorized remixes using Dubset, then why not clear samples eventually? We might be entering an era where most music is fair game for creative mutation, and the original artists get paid. How will that work with songs already released, especially the ones that sneakily didn’t clear drum loops or other samples? Should clearance lawyers start looking at new career options?
As far as Apple Music and Spotify go, I really can’t see them opening up their services to user-uploaded content a la SoundCloud. I’m ready to be surprised, but I do think those predictions are off the mark. The Verge gives a clue to where this might be headed for the two big streamers:
DJ mixes have historically proved to be especially difficult for monetized distribution. “The average mix is 62 minutes long and has 22 different songs in it, and those 22 different songs are represented by over 100 different rights holders,” {Dubset CEO Stephen} White tells The Verge. Using Dubset’s technology, a 60-minute mix can be processed in just 15 minutes.
During that 60-minute mix, White says, MixSCAN will fingerprint every three seconds of audio. “We’re using a combination of audio fingerprinting technologies and fairly advanced algorithmic approaches to identify the underlying masters that are being used in a mix or a remix,” he says. Although MixBANK asks DJs themselves to identify the masters, White says this is just to help validate MixSCAN’s results.
Apple’s Beats 1 Radio regularly broadcasts sets by newsworthy artists and celebrities, but the Beats 1 platform still fails to make the news. These DJ events need exposure outside of the ephemeral original broadcast. Wouldn’t it be nice if the sets were recorded and archived, and then available to play on demand via Apple Music? I think that’s what’s happening here. A different sort of license is required to make these DJ sets available on demand, and every song (and, yes, unofficial remix) must be cleared for this type of usage. Theoretically, Dubset’s technology would not only clear the songs in the mix, but it would be able to do so in 15 minutes. A Beats 1 set could be available to stream on Apple Music within thirty minutes of its broadcast. Voilà. And I’d wager Spotify has similar ambitions.
Previously and Previously and Previously
“I’ve always believed in clearing samples, however I believe it needs to be done on a musicologist basis.” This would involve, {DJ Shadow} explains, breaking down a song in a forensic way, and working out compensation accordingly: “This bass line sample constitutes – based on the space that it occupies and the number of seconds that it plays over the course of the track, in relation to other elements that come and go … this sample is worth 16.7% of the composition.”
“Now, if that could be done,” he says, “then I would clear everything. But the problem is, you go to the first person – they want 75% whether they deserve it or not. You go to the next person they want 70% – whoops – you can’t cut a pie that many times, there isn’t enough pie to go around.”
“In a strange sense I feel like music has never been worth less as a commodity, and yet sampling has never been more risky. We work in a hyper-capitalist time, where you grab what you can, get everything you can, doesn’t matter whether it’s right or wrong, it doesn’t matter whether it’s valid, it doesn’t matter whether it’s deserved.”
My own story: I had to leave a song off Invisible Airline because it had a short vocal sample, and the publisher for the sampled artist (hardly a ‘big name’) wanted $10,000 and 75% ownership of the final song to clear it.
Then there’s the unfortunate case of De La Soul, via The New York Times:
“We’re in the Library of Congress, but we’re not on iTunes,” {De La Soul member Posdnuos AKA Kelvin} Mercer said, adding that when the group interacts with fans in person or online, they always ask the same question: “Yo, where’s the old stuff?”
That old stuff may be fraught with problems, according to people familiar with the group’s recording and publishing history. In 1989, obtaining the permission of musical copyright holders for the use of their intellectual property was often an afterthought. There was little precedent for young artists’ mining their parents’ record collections for source material and little regulation or guidelines for that process.
“My understanding is that due to allegedly uncleared samples, Warners has been uncomfortable or unwilling to license a lot of the De La Soul stuff,” {sample-clearance agent Deborah} Mannis-Gardner said. “It becomes difficult opening these cans of worms — were things possibly cleared with a handshake?”
An added possible complication lies in the language of the agreements drafted for the use of all those samples. (There are more than 60 on “3 Feet High and Rising” alone — the group was sued by the Turtles in 1991 for the use of their song “You Showed Me” on a skit on that album and settled out of court for a reported $1.7 million.) If those agreements, written nearly three decades ago, do not account for formats other than CDs, vinyl LPs and cassettes, Warner Music would have to renegotiate terms for every sample on the group’s first four records with their respective copyright holders to make those available digitally.
In a statement, a person speaking for Rhino, a subsidiary of Warner Music Group that deals with the label’s back catalog, said: “De La Soul is one of hip-hop’s seminal acts, and we’d love for their music to reach audiences on digital platforms around the world, but we don’t believe it is possible to clear all of the samples for digital use, and we wouldn’t want to release the albums other than in their complete, original forms. We understand this is very frustrating for the artists and the fans; it is frustrating for us, too.”
There’s an understandable nostalgia for the anything-goes sampling climate of the late-80s/early-90s, and a lot of sample-free music made today would sound completely different if that anomalous musical era didn’t happen. Now we’re seeing technological solutions paving the way for new sample-based producers, through services like Tracklib and maybe even Dubset (if you can clear unauthorized remixes using Dubset, then why not clear samples eventually?). But these services can’t replicate the thrill and risk of surreptitiously sampling a favorite groove into your production. Take my word for it … it can be intoxicating.
The often excellent Song Exploder podcast has dropped an episode featuring DJ Shadow pulling apart his seminal 1996 track “Mutual Slump”:
It’s difficult to overstate just how much of a creative gut-punch DJ Shadow’s early recordings were to those of us producing electronic music at the time. I remember how the pre-Entroducing singles on Mo’Wax – such as “Lost & Found (S.F.L.)” – totally blew my mind and forced me to raise my studio game. I know I wasn’t alone.
I met Josh Davis / DJ Shadow at a record show in Austin in the early 2000s before one of my gigs. After introducing myself he laughed and said, “ohhh, now I know what my friend meant when he told me DJ Q-Bert was in town.”
Seeking clearance for the vocal sample, Powell emailed Albini, saying how much the music of Big Black had meant to him and explaining what he did. Mr Albini subsequently replied that though it seemed that “you’ve got a cool thing set up for yourself” he was hardly partial to the sort of fruity EBM that Powell makes. “I am absolutely the wrong audience for this kind of music. I’ve always detested mechanized dance music, its stupid simplicity, the clubs where it was played, the people who went to those clubs, the drugs they took, the shit they liked to talk about, the clothes they wore, the battles they fought amongst each other… basically all of it, 100 percent hated every scrap.”
Oh dear. Albini continued: “The electronic music I liked was radical and different, shit like the White Noise, Xenakis, Suicide, Kraftwerk, and the earliest stuff form Cabaret Voltaire, SPK and DAF. When that scene and those people got co-opted by dance/club music I felt like we’d lost a war. I detest club culture as deeply as I detest anything on earth. So I am against what you’re into, and an enemy of where you come from”.
Despite this, Albini was quite happy to let Powell use the vocal sample: “I have no problem with what you’re doing,” he wrote. “I haven’t bothered listening to the links, mainly because I’m in a hotel with crappy internet at the moment but also because it probably wouldn’t be to my taste and that wouldn’t help either of us. In other words, you’re welcome to do whatever you like with whatever of mine you’ve gotten your hands on. Don’t care. Enjoy yourself.”
It shouldn’t be a surprise that the bandleader who considered every instrument a drum would be responsible for giving the world one of the most widely sampled drum breaks of all time. Performed by Clyde Stubblefield, the oft-pulled moment arrives around five and a half minutes into “Funky Drummer”; (James) Brown bookends the break with a “one-two-three-four” count in and out. Ahmir “Questlove” Thompson hit the nail on the head: “It’s hands down the most perfect beat you can loop—it’s very lyrical, very melodic, very rhythmic. It’s perfect. It’s magical.”
A good little ten song list, most of which you’ll probably already know the sampled loops’ origins, but there may be a couple here to surprise you. If the list went to 11, I’m sure Banbarra’s “Shack Up” would be included … and it’s the drum loop I nearly got into trouble for using. Yes, dear reader, the myth that you can’t be sued for a drum loop is just that.
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