8Sided Blog

a zine about sound, culture, and the punk rock dream

Small Potatoes

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Sample-Snitching → One quiet morning in the early 2000s, I arrived at my label’s office and listened to the voice mail no sampling record producer wants to hear. The call was from a lawyer representing the estate of the leader of an obscure ’70s funk band. He knew that I used a 2-bar drum loop from this band on a song from my first album. It didn’t matter that this loop was fairly common, used prolifically in both mainstream hits and underground white labels. It also didn’t matter that I probably grabbed the loop off one of those erroneously named ‘royalty-free’ sample CDs that were common in the ’90s. The lawyer (and, presumably, his client) wanted his cut. 

Long story short, the fact the loop appeared in several mainstream hits probably worked in my favor — once the lawyer saw the requested final sales figures for my album, he realized I was small potatoes. I guess I wasn’t worth the effort, and I never heard from him again. But the most disturbing thing was how he found me. He was going through listings of songs that sampled his client on a sample-identifying website. 

I’m not sure which site the lawyer used at the time. Today’s most popular one, WhoSampled.com, launched several years after that frightening phone call. But the fear persists among producers. A new article in Pitchfork by Mosi Reeves details how representatives of legacy catalog use WhoSampled to source potential litigation, despite its intended purpose of pointing fans to old records:

It is a useful resource for rap listeners, despite its complicated role in sampling culture. Chris Read, the London-based company’s head of content, said that using the website as a fact-finding tool for potential lawsuits is a violation of its terms of service, and that the practice “stands in opposition to the reason WhoSampled was created, which is to provide a place for music fans to discover the origins of the music they love and celebrate sampling as an artform.” He acknowledged that the site does not distinguish between cleared and uncleared samples in its listings, because information about sample licensing is not always made publicly available. Producers can request takedowns of listings related to their work if there is information that “they would prefer was not published” on the site, he added.

The law is clear, so producers using uncleared samples — myself included — are unambiguously in the wrong. Many in the music industry’s creative roles have called for an overhaul of these laws to recognize sampling as an art form and create avenues for producers working outside the profitable mainstream. Some lawyers, like the one who contacted me and ended up letting the sample slide, would seem to agree. But then there’s the challenge of differentiating those who use samples artfully vs. those who use them to profit off the notoriety of earlier works. Yes, music rights are complicated (a phrase that’s in the running for the motto of this blog).

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A preview of Marc Méan’s forthcoming album Basteln → Friend of the blog Marc Méan has recorded a new album, titled Basteln. It’s out next week on Neologist Productions. I’m sure I’ll write more about it upon release as it’s terrific, maybe even better and lovelier than his previous effort, Collage. You can listen to the advance single (or, perhaps, it’s an excerpt as the album consists of two 20-minute tracks), recorded using “Cocoquantus, piano, voice & FX.” 

Marc lives in Zürich. The Swiss city has been on my mind as I’m near completing Kim Stanley Robinson’s fantastic near-future climate change novel The Ministry for the Future. Zürich is the setting for much of the novel, and the descriptions of the city are inviting. However, Zürich was already on my radar as the home base of the founders of my favorite art pranksters, the Dadaists. Here’s where Cabaret Voltaire got their name.

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Optional Essentials Vol. 1 → My friend Dr Olive — who once took me to the top of Mont St-Michel — recently launched a new label, 3 to the 3rd Music. The latest release is an ambitious two-part compilation cheekily titled Optional Essentials. The hype-text describes this collection as “the home-made home-listening soundtrack to one of the strangest years, written by music makers from 7 countries.” The sound is chill, overall, but audacious. There’s a diversity of instrumentation and mood-scapes, never a dull moment. The sequence is thoughtful, easily pulling the listener into its zone when played from beginning to end. And I have a connection — I contributed the song “Tarkovsky” under my Q-BAM moniker. I recorded this song ages ago, inspired by repeated visits to Moscow and my admiration of the Russian filmmaker named by the title. And I sampled Robbie Hardkiss saying, “Everything is cool.” Also on the compilation: amazing new tunes from my friends (and label-mates) Monta At Odds and Gemini Revolution.

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