“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.