Marvin Gaye is one of the great singers and songwriters of all time, with a status deservedly approaching secular sainthood. Robin Thicke is a sleazy dirtbag who made a giant pile of money by knocking off one of Marvin’s songs to produce a rapey earworm, accompanied by a porn video. Naturally, I side with Team Marvin, and am delighted that Thicke and Pharrell lost the lawsuit.
While my fellow musicians are gleefully crowing, other observers are worried that this case sets a bad precedent. Michaelangelo Matos is among them.
I encourage vocal fans of this verdict to demonstrate their solidarity by deleting and/or destroying every piece of music they own featuring an unlicensed sample or bearing a notable resemblance to an earlier piece of music. But they won’t, and they shouldn’t, because that would entail deleting just about everything. Even if you loathe Thicke, this is no cause for celebration, because the size of the Gaye estate’s bounty is only going to encourage more lawsuits like this one.
Bennett, J. (2011). Collaborative songwriting – the ontology of negotiated creativity in popular music studio practice. Journal on the Art of Record Production, (5), online.
My professional life at the moment mostly consists of teaching classical and jazz musicians how to write pop songs. While every American is intuitively familiar with the norms of pop music, few of us think about them explicitly, even trained musicians. It’s worth considering them, though. While individual pop songs might be musically uninteresting, in the aggregate they’re a rich source of information about the way our culture evolves. Bennett describes popular song as an “unsubsidized populist art form,” like Hollywood movies and video games. The marketplace exerts strong Darwinian pressures on songwriters and producers, polishing pop conventions like pebbles being tumbled in a river.
Maybe, like me, you’re a fan of “Super Rich Kids” by Frank Ocean featuring Earl Sweatshirt.
Maybe, like me, you were especially delighted by the part at 1:59, when Frank unexpectedly quotes “Real Love” by Mary J. Blige.
A “record label” (really a group of lawyers) called TufAmerica heard that quote too, and now they’re suing Frank Ocean for sampling their property without permission. TufAmerica owns 3.15% of “Real Love.” They acquired this stake by suing Mary J. Blige, whose song samples “Top Billin'” by Audio Two.
In case you don’t pay attention to such things, there’s a miniature scandal swirling around the Red Hot Chili Peppers’ performance at the Super Bowl halftime show.
Close examination of the footage reveals that the bass and guitar weren’t plugged in.
Flea, the Peppers’ bassist, came forward and admitted that they used a pre-recorded track, and offered various excuses and explanations. I’m surprised to find myself writing about this, since if there’s anything I care about less than the Super Bowl, it’s the Red Hot Chili Peppers. But I was struck by Flea’s prevaricating; the whole thing points up the strangeness of live music in the age of technology.
This post is longer and more formal than usual because it was my term paper for a class in the NYU Music Technology Program.
Questions of authorship, ownership and originality surround all forms of music (and, indeed, all creative undertakings.) Nowhere are these questions more acute or more challenging than in digital music, where it is effortless and commonplace to exactly reproduce sonic elements generated by others. Sometimes this copying is relatively uncontroversial, as when a producer uses royalty-free factory sounds from Reason or Ableton Live. Sometimes the copying is legally permissible but artistically dubious, as when one downloads a public-domain Bach or Scott Joplin MIDI file and copies and pastes sections from them into a new composition. Sometimes one may have creative approval but no legal sanction; within the hip-hop community, creative repurposing of copyrighted commercial recordings is a cornerstone of the art form, and the best crate-diggers are revered figures.
Even in purely noncommercial settings untouched by copyright law, issues of authorship and originality continue to vex us. Some electronic musicians feel the need to generate all of their sounds from scratch, out of a sense that using samples is cheating or lazy. Others freely use samples, presets and factory sounds for reasons of expediency, but feel guilt and a weakened sense of authorship. Some electronic musicians view it as a necessity to create their tools from scratch, be they hardware or software. Others feel comfortable using off-the-shelf products but try to avoid common riffs, rhythmic patterns, chord progressions and timbres. Still others gleefully and willfully appropriate and put their “theft” of familiar recordings front and center.
Is a mashup of two pre-existing recordings original? Is a new song based on a sample of an old one original? What about a new song using factory sounds from Reason or Ableton Live? Is a DJ set consisting entirely of other people’s recordings original? Can a bright-line standard for originality or authenticity even exist in the digital realm?
I intend to parse out our varied and conflicting notions of originality, ownership and authorship as they pertain to electronic music. I will examine perspectives from musicians and fans, jurists and journalists, copyright holders and copyright violators. In so doing, I will advance the thesis that complete originality is neither possible nor desirable, in digital music or elsewhere, and that the spread of digital copying and manipulation has done us a service by bringing the issue into stark relief.
Thomas Wuil Joo. A Contrarian View of Copyright: Hip-Hop, Sampling, and Semiotic Democracy. 44 CONN. L. REV. — (2012)
As both a fan and a producer of sample-based music, I’m naturally sympathetic to Lawrence Lessig and the free-culture movement, a group of legal scholars advocating reforms to copyright law that would make it easier to sample, remix and mash up the works of others. The free-culture adherents believe that copyright law exceeded its original purpose to “foster the Useful Arts and Sciences,” and that now it mostly stifles less-powerful creators while benefiting more-powerful entities. A narrative has emerged in this movement implicating the high-profile sampling lawsuits of the 1990s like Grand Upright Music v. Warner Bros. Records and Bridgeport Music Inc. v. Dimension Films in suppressing sample-based hip-hop and related collage-like popular music.
Lessig and company think that sampling and remixing of popular culture can empower us, enabling us to take ownership over the products of the dominant culture industry and enhancing “semiotic democracy.” Copyright law inhibits recoding and is grossly overbalanced in favor of large corporate entities and other powerful actors. In particular, so the narrative goes, marginalized hip-hop artists have suffered under the heavy hand of lawsuits and exorbitant licensing fees.
Is the free-culture movement right?
Thomas Joo challenges the free-culture movement’s assertions both theoretically and empirically. He analyzes the infamous lawsuits and finds only reinforcement of a longstanding status quo. He provides extensive evidence that commercial hip-hop artists of the “golden age” (the 1980s and early 1990s) were perfectly aware of the requirement that they license their samples, and that they were able to produce and profit from their music nonetheless.
Guberman, Daniel. Post-Fidelity: A New Age of Music Consumption and Technological Innovation. Journal of Popular Music Studies, Volume 23, Issue 4, pp 431–454
Guberman divides the history of recorded music into two distinct sections: the fidelity era, stretching from Thomas Edison through the invention of the compact disk, and the post-fidelity era, beginning with the iPod. He argues that, since about 2001, the listening public has come to value convenience, variety, personalization and curation over sound quality.
An emblematic image of the late fidelity era: the Maxell advertisement showing a wealthy young man in his home, sitting deep in an easy chair with a martini, getting physically blown away by giant, powerful speakers.
The emblematic image of the post-fidelity era: silhoutted people of both genders and diverse backgrounds, dancing with iPods.
The trumpet player Nicholas Peyton wrote a blog post recently: On Why Jazz Isn’t Cool Anymore. It’s a must-read for anyone interested in the future of the art form. If jazz is ever going to be popular again, it needs to regain its cool.
Jazz was popular when it was intimately connected to popular culture. In the early-middle part of the twentieth century, jazz was popular culture. The last significant jazz work to really communicate with pop music was “Rockit” by Herbie Hancock.
“Rockit” was informed by hip-hop and electronica, but it also gave something back — a generation of hip-hop turntablists all point to it as a central inspiration. Jazz since then has mostly tried to ignore pop culture entirely, or comment on it condescendingly.
Last year, I spoke on a panel about sampling with a few academics and copyright lawyers. One of the panelists was Martin Schwimmer, a partner in a law firm practicing trademark and copyright law. A big part of his job is going after copyright infringers. Schwimmer assured the audience that no one will ever sue Girl Talk, regardless of the legal merits, because in terms of real-world consequences, it’s a lose-lose proposition.
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Why does folk music collector Alan Lomax have a copyright interest in “Takeover” by Jay-Z?
I learned the answer from Creative License: The Law And Culture Of Digital Sampling by Kembrew McLeod and Peter DiCola. It’s a companion book to the invaluable documentary Copyright Criminals. The story of Jay-Z and Alan Lomax isn’t quite as epic a copyright fail as the Biz Markie lawsuit or the story of “Bitter Sweet Symphony” but it’s still pretty absurd.