Music evolves in much the same way life does. DNA gets copied when cells divide and replicate. Music gets copied from mind to mind when people hear it and want to reproduce it. All musical learning begins with imitation of other musicians. I’d go so far as to say that all learning boils down to imitation. Primates and other smarter animals learn by imitation too.

As music gets copied from one person’s mind to another, it sometimes mutates. Think of learning an existing piece of music as being like asexual reproduction. Usually the two child cells are exact clones of the parent cell. Mutations are errors that result in inexact copies. Usually mutations harm the child cells’ ability to survive and reproduce, but every once in a while the mutation is advantageous.

Imagine that you know how to sing “Amazing Grace” and that I want to learn it. Say we can’t read music and don’t have any recordings. You’ll repeat the song to me until I can successfully copy it by imitation. Maybe I won’t quite nail the melody completely, and will remember it with one or two notes changed. This mutation will probably make my version of “Amazing Grace” less compelling and memorable, and other people will be less interested in learning it from me. But maybe I’ll have stumbled on an improvement. My version might even spread and eventually crowd out the original.

Musical imitation doesn’t just have to happen at the scale of entire songs. It can happen at smaller scales, at the level of riffs and chord progressions and rhythmic motifs. This kind of modular recombination is especially common in improvisation-based music. When someone combines so many small pieces of existing tunes into a hybrid that bears little obvious resemblance to any of the source material, we call the process “composing” or “songwriting.” Writing music is closer to hybridizing and selective breeding than creating a new lifeform from scratch.

The evolutionary view of music creation has practical benefits. If you want to arrive at the best new ideas efficiently, the best method is to have a lot of ideas compete for your attention. Most new mutations and hybrids will fail, but if you throw enough combinations of musical DNA together, eventually you’re bound to get lucky with something that survives, thrives and spreads itself. Shorter generation times speed up evolution — the more copying and breeding you do, the more chances there are for fruitful errors.

This is why Michael Jackson recorded hundreds of demo songs for Thriller. He wanted an album where every song was good enough to be a single, and knew that would only be possible if he had many albums’ worth of material to choose from. This is also why Lil Wayne records new material just about seven days a week. On the flip side, I’ve known many lesser musicians who obsessively fiddle and tinker with the same ideas, year after year, missing out on the chance to work through broader sets of possibilities.

My view of the positive value of copying and imitation in music is directly at odds with copyright law. Our legal culture operates from the assumption that copying is evil, a crime in need of punishment. In his infamous ruling in the Biz Markie sampling case, Judge Kevin Duffy began his opinion by quoting the Bible: “Thou shalt not steal.” This culture is the result of judges and legislators not being familiar with how music actually gets made. Legal professionals have a lot of experience writing text, and so it’s not surprising that the laws around plagiarizing writing are much looser. The law grants wide latitude to quote, paraphrase and restate existing ideas in written form. Maybe if more judges were musicians, there would be wider freedom to perform these necessary acts in music as well.

I got some validation for my opinion from Marcus Boon’s new book, In Praise Of Copying. True to his message, he’s made the book available for free download in PDF format. Click the image to help yourself.

Boon’s book deals with the grating cognitive dissonance between our society’s outspoken ban on copying and the reality of doing any kind of creative or intellectual work.

[University students] are encouraged to learn through the act of repeating information, quoting, appending citations, in the traditional academic way; but with access to the Internet, to computers that can copy, replicate, and multiply text at extraordinary speed, they are also exhorted not to imitate too much, not to plagiarize, and to always acknowledge sources. They are ordered not to copy—but they are equally aware that they will be punished if they do not imitate the teacher enough!

Can we really identify an area of human activity outside copying which would make it possible for us to choose or decide whether to copy or not? I will argue that there is no such area, that we are always entangled in the dynamics of mimesis, and I write “in praise of copying” as an affirmation of copying rather than as an ethics.

We presuppose originality as the norm, and that copying deviates from that norm. The reality is the opposite — copying is normal, and ideas that are genuinely disconnected from what has come before are radically unusual. Truly novel ideas are easy to produce and are usually worthless. You can effortlessly create novel musical ideas by banging on a piano at random. To sound good, you have to stay close to the cliches.

Some classic songs based on obvious copying

The Beach Boys got the guitar riff in “Surfin’ USA” from Chuck Berry’s “Sweet Little Sixteen.” Chuck Berry got the opening riff of “Johnny B Goode” from “Ain’t That Just Like a Woman” by Louis Jordan. The Beatles admitted to learning the guitar riff in “I Feel Fine” from Bobby Parker’s 1960 song “Watch Your Step.” Led Zeppelin is famous (notorious?) for borrowing very heavily from American blues musicians, lifting riffs and lyrics freely. For instance, they adapted “When The Levee Breaks” by Memphis Minnie for their own song of the same name. Appropriately, the drum intro from Zep’s song has been sampled in uncountable hip-hop, techno and pop songs.

Michael Jackson was a brilliant synthesist of ideas appropriated from the world around him. He mostly drew from James Brown and Motown, but he wasn’t afraid to tie in rock and electronica and Afropop and hip-hop and much else. My favorite song of his, “Wanna Be Startin’ Something,” gets its climax from a Manu Dibango song. Michael told Darryl Hall during the “We Are The World” session that he had stolen the “Billie Jean” bassline from Hall and Oates’ “I Can’t Go For That.”

Darryl Hall isn’t too bitter; he says he stole the bassline too, though he didn’t specify where he got it from. The KLF observe that the Billie Jean riff is a widely used dance music trope, and I believe them, but unfortunately they don’t give specific examples either.

Michael Jackson, who we cited earlier on for not being that adept at coming up with the killer Number One hit choruses, CAN come up with the bass lines. “Billie Jean” was the turning point in Jackson’s career. That song, on his own admission, took him into the mega stratospheres where his myth now reigns. The fact is, “Billie Jean” would be nothing without that lynx-on-the-prowl bass line; but he wasn’t the first to use it. It had been featured in numerous dance tracks by various artists before him. Jackson and Quincy must have been hanging out around the pool table in their air conditioned dimmed light atmosphere, L.A. studio one evening wondering: “What next?” when one of them came up with the idea of using the old lynx- on-the-prowl standby. Without making that decision back in 1981 there would have been no Pepsi Cola sponsored jamboree in 1988.

Does this make the “Billie Jean” bassline less awesome? Or more awesome? I find that its status as a communal property gives it a web of associations that makes it a richer work of art.

Here’s a thorough listing of similar musical borrowings and appropriations (or, if you insist, thefts.)

Nas has a great flow full of powerful imagery, but what truly sets this track apart for me is DJ Premier’s production. It’s a complex web of samples and scratches that tie together so seamlessly as to be much greater than the sum of their parts. A lot of the samples are from other songs by Nas himself. Here’s a diagram of all the samples, click to see it bigger:

Primo tells the story of the track, including the serendipitous discovery of the killer orchestral string sample, in The 14 Deadly Secrets by DJ Premier:

A transcript:

The day I made this record, I was at my house in Long Island, and I found this old record that I was gonna throw away. It was a ten inch record from a Lutheran church, and it was pink with a black fish on it. And I was gonna throw it in the garbage, ‘cuz it didn’t look like it had anything hot on it. But somethin’ told me “before you throw it away, put it on the turntable, see if you can find something on it.

And I found that sample of “Nas Is Like”, and I broke it into 3 parts, scratched it live to the drumbeat that I already had, with the little chirpin’ birds and from there, “Nas Is Like” was born, man…

The birds twittering during the intro beat are from “Why” by Don Robertson. And here’s the Lutheran record Primo’s talking about, “What Child Is This.” Very unlikely hip-hop source material.

Most of the lines in the chorus come from Nas’ breakout hit “It Ain’t Hard to Tell.” The “life or death” line is at 0:32, the “Nas is like” that gives the song its title is at 0:44, and the “half man half amazin’” comes in a few seconds later. “My poetry’s deep, I never fell” is at 2:41.

“It Ain’t Hard To Tell” includes some hot samples of its own, including the synth intro from “Human Nature” by Michael Jackson and a saxophone riff from the much-sampled “NT” by Kool & The Gang (listen at 3:12.)

The other source for the “Nas Is Like” chorus is Nas’ “Street Dreams” from 1996. Samples are at 3:16 (“I’m a rebel) and 3:18 (“no doubt.”)

This track is also a composite of different memes – it quotes “Sweet Dreams” by Eurythmics and samples its beat from “Never Gonna Stop” by Linda Clifford.

Maybe the most inventive sample in “Nas Is Like” is a single syllable from “Nobody Beats the Biz” by Biz Markie. It’s the line “highly recogNIZED as the king of disco-in’” at 2:06. Out of context, “NIZED” sounds like Biz is saying “Nas.” That might be the single most creative sample usage in hip-hop history.

No wonder DJ Premier loves Biz — both like using a lot samples and allusions. Biz’s chorus is a play on a commercial jingle that’ll be familiar to anyone from the NYC region who grew up in the eighties (or has watched Seinfeld.) Biz also samples the drums from by “Hihache” by the Lafayette Afro Rock Band, “Fly Like An Eagle” by Steve Miller and, to heighten the self-reference even more, one of his own classic tracks, “The Def Fresh Crew” with Roxanne Shanté.

To add yet another layer of reference, there’s a bit in here where Biz quotes the jingle for Meow Mix! Biz is so much bigger than copyright law.

Nas does a lot of bragging in his rhymes. I learned excessive self-deprecation as a virtue from both my Jewish and middle American Protestant sides, so swagger feels deliciously subversive for me. There’s nothing more balling than sampling yourself in your own songs. Any sample-based song carries a dense web of associations, and I love the complexity that gets introduced when people sample themselves, or when they sample tracks containing samples, or best of all, both. “Nas Is Like” has a complex family tree, a set of allusions to allusions to allusions. This is as it should be. Fundamentally, all music is built of reshuffled bits of other music. Hip-hop makes this fact an explicit part of the music’s message, and that’s the biggest reason why I love it.

Hear a mashup of “Nas Is Like” with “It Ain’t Hard To Tell,” “Human Nature” and “Right Here” by SWV.

Human Nature Megamix by ethanhein

David Shields says that about one in five hip-hop songs samples “Impeach The President.” That doesn’t sound to me like it’s true, but the break certainly has been sampled enough times to place it alongside the Funky Drummer and Apache breaks as a cornerstone of hip-hop. Here are lists of tracks that sample “Impeach The President” from the Rap Sample FAQ and Whosampled.com. Some standouts:

Audio Two – “Top Billin’”

Cleverly flips the break, reordering its component drum hits into a totally different beat. Audio Two’s beat, in turn, was sampled for “Real Love” by Mary J Blige.

Big Daddy Kane – “Smooth Operator”

Includes a bunch of other samples: “All Night Long” by Mary Jane Girls, “If it Don’t Turn You on (You Outta Leave it Alone)” by BT Express, “Do Your Thing” by Isaac Hayes, “Risin’ to the Top” by Keni Burke, “The Champ” by the Mohawks, and “Put Your Hands Together” by Eric B. & Rakim.

Biz Markie – “Alone Again (Naturally)”

The subject of the infamous lawsuit that ended the golden age of sample-based commercial hip-hop. The song uses two samples, one from Gilbert O’Sullivan, the other from the Honey Drippers. Gilbert O’Sullivan is the one who sued; the Honey Drippers didn’t. To my knowledge, they’ve never received a nickel in royalties from anyone who’s used the sample.

De la Soul – “Ring Ring Ring (Hey Hey Hey)”

The chorus uses lyrics and melody from the Curiosity Killed the Cat song “Name and Number.”

Digable Planets – “Rebirth of Slick (Cool Like Dat)”

The horn lick comes from “Stretching” by Art Blakey and the Jazz Messengers.

Eric B and Rakim – “Move the Crowd”

There are a ton of other samples in this track, you can read all about it on Wikipedia if you want.

Mick Jagger – “Sweet Thing”

From his nineties solo album. Sounds like there’s a sample of “Apache” in there too.

Nas – “I Can”

The lyrics are on the corny side, but it’s cool that it quotes “Für Elise” and it’s a nice message.

Nice & Smooth – “Funky for You”

Uses a great sample of “Do That Stuff” by Parliament. Dizzy Gillespie did not, in fact, play the sax.

Notorious B.I.G. – “Ready to Die” and “Unbelievable”

Biggie Biggie Biggie Smalls is the illest.

Slick Rick – “It’s a Boy”

Also includes sax from Tom Scott’s version of Jefferson Airplane’s “Today” and vibes from Cal Tjader’s version of the Beatles’ “Lady Madonna.” (The Tom Scott sample is also the hook in “They Reminisce Over You” by Pete Rock and CL Smooth.)

Tekken 3 – “End Theme”

Really.

Wu-Tang Clan – “Wu-Tang Clan Ain’t Nothin’ to F**k Wit’”

Also samples “Hihache” by the Lafayette Afro Rock Band, “Papa Was Too” by Joe Tex and the theme from Underdog.

Here’s a hot mix tape of many tracks sampling “Impeach The President,” along with the original.

The Honey Drippers may be everywhere in music, but they’re not well documented. The internet has very little to say about their members, history or anything else beyond their name. “Impeach The President” isn’t available on iTunes or Amazon, though it’s easy to find mp3s on the web. The imbalance between the Honey Drippers’ anonymity and the omnipresence of their sample is amazing to me. The beat fits under songs about despair and uplift, mindless partying and sober social commentary, bragging and self-loathing. Sample culture is crazy sometimes.

Update: see a blog post on how to program this break on a drum machine.

Part one:

Part two:

Part three:

Part four:

Part five:

Part six:

Steve Albini says that sampling is cheap and easy. He’s right about that. Anyone with a computer and a few pieces of inexpensive software can do it. Mr Albini also thinks people should be “embarrassed by sampling, like a bad dance move.” It’s a funny analogy, because while I like the albums he’s produced for the most part, they aren’t dance friendly. Pick any song that you’ve danced socially to in the past thirty years and the odds are high that it was produced electronically.

Anyway, in response to the charge that sampling is cheap and easy, why is that a bad thing? George Clinton points out that rock and roll was originally all about cheap and easy: three chords, repetitive beats and structures, singable choruses. Now, rock music is expensive and difficult, and thanks to people like Radiohead, every bit as technically inaccessible as jazz or classical. This is why rock has mostly become every bit as lame as jazz or classical. Making an art form expensive and inaccessible makes it elitist and conservative. The big artistic risks are mostly being taken by the electronic musicians, not the guitar tribe.

The documentary makes the intriguing analogy between DJs and photographers. DJs are to traditional instrumentalists as photographers are to painters. You can’t make blanket statements about the validity of the entire medium; you need to go on a case-by-case basis. DJs and photographers have a lower barrier to entry than cellists or painters but the path to mastery is every bit as long.

We’ve become accustomed to lavish production values in our recorded music, and that comes at a steep price tag if you want live instruments and analog tape. The expensiveness of lavish, dense live recordings forces conservative choices. The effortlessness of sampling leads to more risk taking, more experimentation, more innovation. Also more amateurish nonsense, but that’s the nature of the beast. A low penalty for failure is a necessary precondition for success.

Even if money is no object, there are still some strong artistic arguments in favor of sample-based music. The loop is different from a human playing a phrase over and over. I used to play in an R&B group. The singer and I wrote the songs with samples and loops and then taught them to the band. We had a Miles Davis sample that the trumpet player was supposed to use for his part. He played it pretty accurately, but never with the exact phrasing, tape compression and ambiance of the original loop, and it never quite sounded as good. It was cool that he could riff and improvise, but it gave us a looser, jazzier sound than we were going for. The identical repetition effects you to hypnotic effect. Check out the squealing trumpet sample under Public Enemy’s “Don’t Believe The Hype” – even James Brown couldn’t have that disciplined a horn player, not with all that insane noise swirling around. Humans get bored and distracted, they have opinions. Computers don’t. What if James Brown and band had been necessary to appear in person in order to create “Fight The Power”, and they had refused? What a loss.

The entertainment lawyer in the movie equates my sampling your song to me coming into your house, helping myself to the food in your fridge. Sampling might recontextualize old recordings in ways their creators find offensive, but very often sampled works add something of benefit to old recordings’ cultural standing. I’m thinking of all those classic seventies funk and disco songs with incredible beats but outdated lyrics and arrangements. George Clinton is outspokenly grateful to hip-hop producers for putting him back on the map, culturally and then commercially.

Meanwhile, the law is a serious obstacle. Clearing all samples in advance is crushing to the creative process, which depends on immediacy and spontaneity. It’s a lot cheaper and easier to get a license to perform or record a full cover of a song than it is to get the rights to a three second sample. Some copyright holders are laid back or indifferent, but some charge extortionate license fees. Erick Sermon had to pay Marvin Gaye’s estate a hundred thousand dollars for a sample clearance. Unless you’re a major pop star with serious backing, this is prohibitive, and we’re back to the conservatism imposed by high costs that plagues instrumental music.

Clyde Stubblefield’s reaction on first hearing how widely he was sampled: “Cool!” But he’s bitter about not getting credited. He’s not as upset about not getting royalties, maybe because he wasn’t getting those before sampling either – James Brown owns all the copyrights to “The Funky Drummer” and “Cold Sweat” and so on. Public Enemy explains they have to be secretive about their sources to not get sued. A healthier sampling culture would make it easy to use samples and encourage attribution and reasonable payments.

Sampling artists like to use the phrase “fair game” – I’ve used it myself to describe the contents of my iTunes library, and some of the musicians in Copyright Criminals use it too. What’s fair game? Depends. The Beatles are notoriously litigious copyright holders, but they themselves use unauthorized samples in “Revolution 9″, “I Am The Walrus” and “Tomorrow Never Knows.” I’m hopeful that as sampling moves from the fringe into the mainstream, the law will eventually catch up and the absurdities will iron themselves out.

Update: this post and another of mine are quoted in a Brands Plus Music post about the impact computers are having on music making. It’s a good one, thought-provoking, worth a read.

Biz belongs to the period in the late eighties and early nineties that many hip-hop heads refer to as the golden age. The tracks of this period were dense with samples and quotes, most of which were used without permission. Biz was no exception to this trend. This map shows only a few of the samples he used.

The golden age came to an end in 1992, when Biz was sued for illegally sampling “Alone Again (Naturally) ” by Gilbert O’Sullivan.

“Alone Again (Naturally)” is a fine song, but it’s not spectacularly original. The chord progressions, melodic motifs and verbal imagery are all popular music boilerplate. The rhyme schemes are mostly cliches like cried/died. Gilbert O’Sullivan was the first person to use this exact combination of standard musical modules, but the modules themselves can be heard in zillions of other songs. I’m giving you all this music criticism because I think it’s ironic that Biz could be sued for stealing from a song that is itself assembled from other pre-existing ideas.

Biz’s song “Alone Again” isn’t on YouTube, but you can hear an mp3 here.

Biz uses a loop of Gilbert O’Sullivan’s piano and a quote from the chorus. He also uses the frequently-sampled beat from “Impeach The President” by The Honeydrippers. Biz’s song follows the time-honored hip-hop strategy of semi-ironically quoting a well-known chorus and writing new verses around it, all over a funkier beat.

Biz’s label, a subsidiary of Warner Bros, attempted to get clearance to use the piano sample from Grand Upright Music, Gilbert O’Sullivan’s publishing company. When Grand Upright denied the request, Biz and his people went ahead and used it anyway. In response, Grand Upright Music filed an injunction. The decision in Grand Upright Music, Ltd. v. Warner Bros. Records Inc. ruled emphatically in Grand Upright’s favor. The decision was the death knell of sample-intensive hip-hop at the commercial level. Judge Kevin Thomas Duffy began his opinion in the case by quoting the Bible:

“Thou shalt not steal.” has been an admonition followed since the dawn of civilization. Unfortunately, in the modern world of business this admonition is not always followed. Indeed, the defendants in this action for copyright infringement would have this court believe that stealing is rampant in the music business and, for that reason, their conduct here should be excused. The conduct of the defendants herein, however, violates not only the Seventh Commandment, but also the copyright laws of this country… [I]t is clear that the defendants knew that they were violating the plaintiff’s rights as well as the rights of others. Their only aim was to sell thousands upon thousands of records. This callous disregard for the law and for the rights of others requires not only the preliminary injunction sought by the plaintiff but also sterner measures.”

Judge Duffy concluded by referring the matter to the US Attorney, recommending prosecution of Biz et al for criminal copyright infringement.

This ruling makes me sad for several reasons. First of all, Judge Duffy wasn’t in complete possession of the facts. If you choose to define sampling as “stealing,” then stealing was in fact rampant in the music business, and not just among hip-hop artists. Rock and roll was built on uncredited borrowing from blues and R&B musicians. The Beatles used unauthorized samples of copyrighted materials in their artsier tracks like “Revolution 9.” Experiments with tape collage by the classical avant-garde go back to the fifties.

I also take issue with Judge Duffy’s equation of sampling and stealing. There has never been a wholly original piece of music. For that matter, there has never been a completely new idea of any kind that didn’t draw extensively on its intellectual context. Sampling is a novel technological practice, but it’s a seamless extension of the way music has always been made. All creativity consists of recombining and repurposing fragments of existing works into new ones. I would go so far as to say that there is no other kind of artistic practice.

I’m not completely unsympathetic to Gilbert O’Sullivan’s position. I wish that some kind of licensing or profit-sharing agreement could have been reached in this particular case. But where does it end? Would we require Gilbert O’Sullivan to pay every previous user of his harmonic and melodic cliches, and every previous user of the cried/died rhyme? Would there be any kind of art at all if we did?

Meanwhile, I detect more than a tinge of racism in Judge Duffy’s ruling, and in the cultural consensus that produced it. This article from the UCLA/Columbia Copyright Infringement Project is sympathetic to Biz’s legal position, but it slips in some ignorant music criticism:

[A]part from the gibberish chanted over O’Sullivan’s ostinato, there is nothing original in Biz Markie’s song or his recording except his performance of it.

Biz doesn’t enunciate his rhymes very clearly, but there’s a big difference between mumbly delivery of slang and “gibberish.” Maybe the slight wasn’t have a racial motivation, but it’s hard to imagine why else the writer would be so dismissive of the hip-hop art form.

Personally, I value Biz Markie’s music much more highly than Gilbert O’Sullivan’s. I resent the chilling effect that copyright law has on sampling culture, which I regard as the a rich and vibrant method of musical expression. A big part of the pleasure of hip-hop is encountering a familiar sample in a new song. It mixes the warm thrill of recognition with the strangeness of a novel context. Hip-hop has this wonderful ability to make well-worn cliches fresh again.

Even when it’s unauthorized, sampling generally helps the sampled artists more than it harms them in the long run. It keeps the sampled artist culturally relevant to new generations of listeners who otherwise wouldn’t care. I would never have even heard of Gilbert O’Sullivan if Biz hadn’t paid him the compliment of sampling him.

Just for fun, here’s Biz’s best-known song. Like “Alone Again”, the chorus quotes an older song, “You Got What I Need” by Freddie Scott.

Boo copyright. Yay quotation.

Update: Kevin Nottingham posted all the samples from Biz’ I Need A Haircut on his blog. Download and remix to your heart’s content.

Further update: the web site for the documentary Copyright Criminals links to this post.