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.

What Is Originality?

Before we can discuss the impact that digital music has had on the concept of originality, it would be helpful to have a definition of the term. Donald Coffman has a useful approach based on information theory. In his formulation, originality is coextensive with novelty, which in turn is coextensive with informational entropy. A more novel musical idea will have higher entropy because it will contain information that is new to the listener. A well-worn cliché will have lower entropy because it introduces little or no new information. Coffman’s example of a low-entropy musical idea is the leading tone followed by the tonic. This note sequence conveys little information to the Western listener; we have heard it countless times, and we have come to expect it. Following the leading tone with the flat second would be a higher-entropy move, unexpected to most Western listeners.

Analogies with physical systems are helpful here. Atoms in a regular crystal lattice like a diamond comprise a very low-entropy physical system. The musical equivalent would be a MIDI sequencer playing “Twinkle Twinkle Little Star” on an endless loop. Gas molecules bouncing randomly around a room are a high-entropy system. Here, the musical equivalent would be a sequence of pitches, rhythms, durations and so on all chosen at random, or unpredictable bursts of white noise.

We generally find the extremes of both high and low musical entropy to be equally boring. Our senses are most gratified by systems in the middle, blending order with disorder: fractals, chaos, recursion, metastability. In the physical world, our senses are most gratified by biological forms, mountains, clouds, and ripples in water. In music, we prefer a delicate balance between predictability and novelty. While Western culture gives lip service to the supreme value of originality, in actual practice, we prefer a balance of the predictable and unpredictable.

What is Authenticity?

The idea of originality is inextricably tied up with notions of ownership, authorship and authenticity. For my purposes, these three concepts are interchangeable. When we hear a piece of music, we want to know that there is a human mind behind it, a set of emotions we can connect with and relate to. The era of recorded music has posed a challenge to our notions of authenticity. Walter Benjamin puts it best:

Even the most perfect reproduction of a work of art is lacking in one element: its presence in time and space, its unique existence at the place where it happens to be….The presence of the original is the prerequisite of the concept of authenticity. (Benjamin 1969)

If we hold Benjamin’s criteria for authenticity to be true, then modern studio recordings are inauthentic indeed.

The Beatles are an excellent test case. At the beginning of their recording career, they simply performed live in the studio, producing a slightly more polished result of what you would hear if you attended one of their concerts. Their last few albums, on the other hand, were elaborately overdubbed collage works that would be difficult or impossible to recreate live. There is no single “original” performance of “A Day In The Life” or “Strawberry Fields Forever” in Benjamin’s sense.

Recent decades have seen an ever-widening gap between people playing instruments in real time and the final product of a recording, especially since the advent of synthesizers, sequencers and digital editing techniques. As Evan Eisenberg says:

The word ‘record’ is misleading. Only live recordings record an event; studio recordings, which are the great majority, record nothing. Pieced together from bits of actual events, they construct an ideal event. They are like the composite photograph of a minotaur. (Eisenberg 2005)

Jesse Walker concurs:

Critics have long debated who ‘creates’ a pop record: the artist listed on the sleeve, the producer behind the scenes, the composer in the wings, or the sometimes anonymous studio employees who actually play the music. (Walker 2003)

It is no wonder that our ideas about authenticity, authorship and ownership of music have grown so muddled. Some musicians remain convinced that synthesizers can never be “authentic” because they are “fake.” But creating a synthesizer patch “from scratch,” building up timbres from raw waveforms using modular electronics or code, could logically be viewed as being more “real” than playing a piano or guitar built by someone else. Traditional instrumentalists decry the use of samples as “unoriginal” or “stealing,” but have no difficulty at all drawing on standard chord progressions, rhythmic and melodic figures, instrumental combinations, song forms, stylistic idioms and the like. The term “sampling” includes practices as diverse as appropriating long and recognizable sections of existing recordings; using short and unrecognizable fragments of existing recordings; using single-note recordings of “real” instruments designed to be mapped to a MIDI controller in order to mimic the sound of the original; and exotic granular synthesis techniques that process short samples beyond recognition. Musicians will vary wildly in their convictions about which of these practices are acceptable and which are not.

At the most controversial end extreme end of the scale lies the mashup, a new work consisting solely of pieces of pre-existing works, individually familiar to the listener, designed to produce surprising juxtapositions. The mashup has been hailed as the most emblematic and significant art form of the time, while simultaneously being dismissed as a shallow novelty or reprehensible thievery.

Controversy over digital music extends far beyond sampling. Some musicians feel that playing digital synthesizers by hand counts as “real music,” but that MIDI sequencing is “cheating.” Some feel that laborious tape editing is acceptable, but effortless digital audio editing is not. Still others can accept digital recording and editing in general, but morally object to techniques like pitch correction and rhythmic quantization. And the situation only gets more complex when we consider the gulf between what musicians say publicly and what they practice in the privacy of the studio.

So what is authenticity in the digital world? I believe that the technological tools and techniques at work do not determine the “realness” of a piece of music. The important factor is emotional truth-telling. Does the music convey or evoke real feelings? Does it tell stories, literally or metaphorically, that truthfully convey the world in which we live? Can a human connection be formed between musician(s) and listener? If the answer to these questions is yes, then I consider the music to be authentic. That said, it may still be difficult or impossible to identify a specific author for a piece of modern electronic music, or even a clearly-defined group of authors. Can music be authentic without having an author? I believe that it can.

Recoding and oral tradition

Art and architecture critic Hal Foster coined the term “recoding” to refer to sampling, remixing, mashups, quotation and all other forms of artistic appropriation. (Foster 1985) Recoding is a useful word — while the various practices it subsumes differ technically, they spring from the same creative impulse and are treated similarly under the law. Recoding shows the way toward a future for recorded music that is more in continuity with music’s past. If I buy a recording, I can listen to it or dance to it, which are both fine activities, but what if I want to go further? What if I want to engage with it, converse with it, customize it or adapt it to my own needs?

Copyright law tightly circumscribes our ability to recode recordings. This flies in the face of the uncountable centuries of musical culture. Before recording technology existed, if you wanted to hear music, someone needed to play or sing it. The normal method for passing music along for nearly all of human history was by oral tradition. A great deal of responsive interaction, adaptation and reinterpretation was an inevitable part of this transmission process. While most of the music we encounter in the modern world is in recorded form, we still carry strong traditions of sharing, adapting and customizing our music. Our instinct to share music we like and to remake it as we see fit is in direct conflict with our notion of recordings as physical and intellectual property that we do not control.

Sampling and originality

More than any other digital music-making practice, sampling provokes the greatest controversy, the hottest emotions, and the most contentious legal battles. For the purposes of this section, I will define sampling to be the appropriation of pieces of recordings created by others in order to recontextualize them in new works. The sample might consist of a single snare drum hit or a long passage, or anything in between.

While digital sampling is a new development, the practice of interpolating familiar material into a new work is of long standing. Classical composers have frequently “sampled” one another’s themes, along with folk and traditional music. Puccini uses “The Star-Spangled Banner” as a leitmotif for an American character in Madame Butterfly. Tchaikovsky interpolates the French and Russian national anthems in the 1812 Overture, along with a Russian Orthodox plainchant and other folk songs. The Nutcracker Suite quotes the traditional “Grossvater Tanz.” At the end of his Violin Concerto, Alban Berg quotes Bach’s chorale “Es ist Genug.” The Habanera from Carmen is based on the song “El Arreglito” by Sebastián Iradier. (Slonimsky and Kassel 1998) The list of such appropriations is endless.

While we have largely made our collective peace with the idea of composers borrowing ideas from one another, sampling recordings feel like another matter entirely. A recording is a physical, tangible artifact in a way that a chord progression is not. Copying the information from a recording feels like a physical act of taking. Even though digital copying does not remove or destroy the original, our mores are still shaped by the idea that unauthorized sampling deprives the original owner of something. Sample-based forms like hip-hop, house and techno have swept the world and transformed global culture, but controversy continues to rage over their basic moral validity.

Thomas Joo represents the prevailing view of the anti-sampling camp: “[S]amples are valuable to music producers because they offer a way to obtain the sound of a musician without employing any musicians.” (Joo 2012) I take strong issue with this assertion. Sampling musicians are still musicians. Indeed, in my own experience, the selection and deployment of the right sample can require significantly more creative effort and time than producing boilerplate genre material on the guitar or on sheet music. People who like hip-hop but are uncomfortable with the practice of sampling tend to invoke the Roots, who play live instruments with considerable skill. However, the Roots are firmly part of the sampling community. Their live performances strive to emulate the sound of sample-based production, turntablism and sequencing. And even though the Roots’ drummer, Ahmir “Questlove” Thompson, is one of the finest musicians of his generation, he nevertheless regularly uses sampled breakbeats in his production work.

Is sampling stealing?

Sampling provokes considerable ire from not just from copyright holders, but from musicians and listeners generally. Some musicians equate sampling with simple plagiarism, and some judges ruling in high-profile sampling cases concur. My own stance is that transformative use should absolve the sampler of all accusations of theft. Sampling, say, a two-bar segment of a song takes nothing away from its author or performer. No one would ever mistake a transformative use of this two-bar sample with the original. Indeed, the sample might draw valuable attention to the original, so long as there is proper attribution.

There is a reasonable objection to sampling that has nothing to do with theft. Rather, it concerns the hijacking of emotional associations. When we hear a song based on a sample before we hear the original, then the original will inevitably evoke the sampling track. I heard “Crazy In Love” by Beyoncé dozens of times before I ever heard the source of its distinctive brass and cymbal samples, “Are You My Woman (Tell Me So)” by the Chi-Lites. As a result, the Chi-Lites’ song will always evoke Beyoncé for me. It is natural to feel protective of one’s memories and emotional attachments around favorite songs. My hope is that while samplers should be free to recode, they would be attentive to the feelings surrounding a well-known piece of music, and that they would handle those feelings consciously and respectfully.

The creative value of sampling

Sampling is an essential part of the contemporary creative toolkit. It enables us to actively engage our music collections, to remake recordings as we see fit. In this respect, sampling has some of the same satisfaction of learning how to sing songs we like, or how to play them on an instrument. As with learning and adapting songs in the traditional manner, sampling lets us remake recordings to our own tastes.

Samples can also be sonically manipulated in real time in ways that live instruments can not. One can instantly alter the pitch or tempo of a sample, or rearrange its components in a different order. Thomas Joo, like many critics of sampling, undervalues this power to reshape the meaning of a sample’s source material: “Even the most active engagements with texts, such as the production of innovative derivative works, involve at least some ceding of the meaning-making function to the author of the source work.” (Joo 2012) This may be true for some works, but it is quite possible for sample-based music to be significantly greater than the sum of its parts. For example, the song “They Reminisce Over You” by Pete Rock and CL Smooth turns samples of a lite-jazz recording of a Jefferson airplane song into the basis of an elegaic tribute to a friend who died young. Pete Rock and CL Smooth transform trite and banal source material into a powerfully moving and substantive new work.

Sampling is also quite effective as a music teaching and studying tool. Sample hunting requires listening actively, with an acquisitive ear. Once a sample has been isolated, hearing it looped endlessly allows the sampling musician to gain a more intimate and nuanced familiarity than the usual listening experience affords. Furthermore, the expediency of sampling encourages spontaneity and experimentation. If I want to try out ideas over a certain beat, it would be logistically inconvenient to involve a live drummer. My apartment is not the right environment for a full drum kit, and I lack the equipment to record one properly. Meanwhile, I have a hard drive full of the best drummers in recorded history playing in every conceivable style, with an essentially limitless selection of others a few mouse clicks away on the internet. How could I possibly pass up the opportunity to practice and write along with Clyde Stubblefield or Questlove or Max Roach? It isn’t just beats that can inspire new tracks or compositions. A short instrumental passage, a vocal phrase, a fragment of speech, a sound effect or atmospheric sound can inspire new work. The effortlessness and immediacy of sampling creates such a wealth of possibility that the challenge becomes choosing from among them.

Samples are not only valuable for their expediency. They possess their own sonic and musical qualities. There is a substantial difference between a person playing a particular phrase repeatedly and the playback of a recorded loop. People cannot help but introduce slight variations of attack, subtle tempo changes, and all of the other nuances of live performance. In some styles of music, constant nuance and variation is a good thing. In electronic music, however, one usually wants the hypnotic, trance-like effect produced by identical looping. A sample’s effect comes not just from its musical content, but all the subtleties of its timbre imparted by the particular interaction of the microphone and preamp and mixing desk and tape or digital medium. The magic of a sample like the Funky Drummer or Amen break is not just in its beat — there is also the tape hiss, the equalization, the compression and reverb. A drummer might be able to recreate the musical performance closely, but not the particular sonic ambiance.

The evocative power of a sample can be used to create webs of reference and self-reference. A striking example is “The Score” by the Fugees, from the album of the same name. In addition to an array of samples of other artists, “The Score” samples every other song on the Fugees’ own album, making for a dizzyingly recursive work of art.

Nas Is Like

An excellent example of the sampling art form is the hip-hop song “Nas Is Like” by Nas, produced by DJ Premier. The instrumental track combines a programmed drum machine beat with twittering birds sampled from “Why” by Don Robertson. The vocals are accompanied by a sample of low-fidelity plaintive strings, sampled from a rather unlikely source, a Lutheran inspirational recording called “What Child Is This.” Imaginative though these sample choices are, DJ Premier’s real artistry comes in his construction of the song’s chorus, built entirely from snippets of other Nas songs. Most of the lines in the chorus come from Nas’ breakout hit “It Ain’t Hard to Tell,” including the phrase “Nas is like” that gives the song its title. Other phrases come from Nas’ “Street Dreams,” itself based on “Sweet Dreams” by Eurythmics.

The most inventive sample in “Nas Is Like” is a single syllable taken from Biz Markie’s song “Nobody Beats the Biz.” Biz Markie describes himself in the song as “highly recognized as the king of disco-in.’” He hits the last syllable in ‘recognized’ in a particularly loud and nasal tone, and out of context, it sounds like he is saying “Nas.” It is no wonder that DJ Premier is an admirer of Biz Markie — both are given to creative samples and allusions. The chorus and title of “Nobody Beats The Biz” are a play on a commercial jingle that will be familiar to anyone who watched television in the New York City region during the 1980s. Just as Biz Markie’s tune evokes the familiar in a surprising context, so too does DJ Premier gratify fans of Nas’ earlier recordings by sampling them in “Nas Is Like.”

Remixes and originality

The conventional wisdom in the music world holds that remixes are antithetical to originality. After all, a remix is, by definition, a modification of an existing work, with substantial amounts of the original still present. William Gibson disagrees with this conventional view:

The record, not the remix, is the anomaly today. The remix is the very nature of the digital. Today, an endless, recombinant, and fundamentally social process generates countless hours of creative product (another antique term?)….The recombinant (the bootleg, the remix, the mash-up) has become the characteristic pivot at the turn of our two centuries. (Gibson 2005)

I agree with Gibson’s sentiment, with one caveat: remixing is not so new as we generally believe. While the recorded form of the remix is a technological novelty, the practice of placing an existing musical work in a new setting is quite ancient.

As with sampling, remixing has strong precedent in classical music. Any piece entitled “Variations on a Theme by [Composer]” is effectively a remix; for example, “Variations on a Theme by Haydn” by Johannes Brahms. It is quite common for classical works to be elaborated versions of folk, dance or religious songs. Bach is known to have drawn heavily on Lutheran hymns for source material, using their melodies and chord progressions as the bases for his Baroque elaborations. The album Morimur substantiates this hypothesis by superimposing a performance of the D minor violin partita with a choir singing the hymns believed to form its basis. The musical fit is remarkably seamless.

One could also make a case that jazz musicians’ reinterpretations of popular songs constitute analog remixing. Even the most prolific jazz composers like Miles Davis, Thelonious Monk and John Coltrane devoted album after album to highly personalized and idiosyncratic arrangements of popular standards. The emblematic Coltrane remix is his rendition of “My Favorite Things,” from his album by the same name. The E major and E minor parts in Coltrane’s arrangement of “My Favorite Things” are open-ended loops. Soloists play each one as long for as long as they see fit, and then signal the band to continue to the next section by playing the “raindrops on roses and whiskers on kittens” melody. The result bears the title of a standard tune, but is unmistakably Coltrane’s creative statement. Even Coltrane’s completely “original” music draws heavily on other sources. His classic tune “Impressions” is a mashup of “So What” by Miles Davis and “Pavane” by Morton Gould.

Aficionados of dance music know that the official release of a song is just the beginning of its musical evolution, and that its truest expression may well come in the form of an extended dance remix. Björk, for example, has embraced the idea of her work consisting of an endless stream of remixes, rather than final, fixed recordings. She encourages her collaborators to find surprising settings for her material, sometimes changing their key and mood entirely, making these songs remixes from the outset. Each single she releases is accompanied by a string of official remixes commissioned by a variety of other artists. Björk released an album, Telegram, consisting almost entirely of remixes of her previous album Post, some of which are quite radical — the electronic dance beats of “Hyperballad” were replaced on the remix by a classical string quartet. Furthermore, Björk has been positively encouraging of fan remixes, to the point of releasing an entire album of remixes and covers of her song “Army Of Me” to benefit tsunami victims in 2005.

It is possible for an artist to make a rich and varied career solely from remixing the work of others. Examples of pop remixers range from the starkly avant-garde “Plunderphonics” recordings of John Oswald, mangling songs beyond recognition, to the good-natured Tangoterje, who extends the funkiest and most danceable parts of songs and layers them with psychedelic echoes. The genre of Jamaican dub consists substantially of remixed “riddims,” recordings of rhythm-section grooves overlaid with snippets of vocals and sound effects, and processed heavily through echo and delay. William Gibson’s statement that the remix is less the anomaly than the static recording, fixed for all time, becomes less controversial with each passing decade.

Mashups and originality

Even more than sampling and remixing, mashups challenge our conventional notions of authorship, ownership and authenticity. Are mashups the most innovative and vital musical form of our time, representing the independent musician’s reclamation of consumerist pop culture? Or are mashups lazy and dishonest, the most venal kind of intellectual property theft?

Club DJs have been mashing up songs on the fly for decades, intermixing popular dance dance tracks with hooks and breaks from other well-known dance tracks. Most of these mixes are ephemeral, created on the spur of the moment for a particular club crowd, but some get recorded and find their way into non-club contexts. High-profile examples include “The Adventures Of Grandmaster Flash On The Wheels Of Steel” and Double Dee and Steinski’s “Lesson” mixes. You could think of these early mashups as very fast-paced medleys, stringing together short segments of well-known songs into a cohesive whole.

While it is possible for a vinyl DJ to combine two different songs simultaneously, lining up the keys and tempos requires considerable skill. The mashup did not find widespread expression until digital editing software made the beat-matching and transposing tasks easier. Using a modern program like Ableton Live, it is possible to superimpose any combination of recordings at the same tempo in the same key with a few minutes of work. Dance and pop songs have long been released in DJ formats with unaccompanied vocals on one side and instrumental versions on the other, facilitating remixing on the fly; such releases are invaluable raw material for mashup artists.

The most typical mashup strategy is to layer the acapella vocals of one song onto the instrumental from another. The challenge is to find two songs that are stylistically wildly different and get them to sound like a unified whole. For example, an anonymous internet artist created a track called “Gettin’ Freaky In Black,” combining vocals from Missy Elliot’s hip-hop/dance song “Get Ur Freak On” with the instrumental version of the hard-rock “Back In Black” by AC/DC. This improbable-seeming combination has a joyous quality distinct from either of its sources.

More adventurous mashup artists take the medley concept of Grandmaster Flash a step further by layering several different songs together simultaneously. DJ Earworm has produced an annual mashup series called The United State Of Pop. Each year, he combines the top twenty-five Billboard hits of that year into a single track. He invests considerable effort into making all of these fragmented songs cohere musically, and the result is a remarkably deep dive into the collective American psyche.

As a practitioner of the mashup, I am strongly in favor of the form as a valuable form of artistic commentary and musical expression. But it is worth examining opposing viewpoints. David Gunkel summarizes them well:

[T]he mash-up is regarded as ‘bastard pop.’ It is the monstrous outcome of illegitimate fusions and promiscuous reconfigurations of recorded music that deliberately exceed the comprehension, control, and proper authority of the ‘original artist.’ In doing so, however, the mash-up does not just challenge the authority of the author but demonstrates that the concept of authorship in popular music has itself always been equivocal and something of an artifice.(Gunkel 2008)

Gunkel’s invocation of the word ‘bastard’ is richly significant. It suggests that there is a proper, ‘pure’ way of breeding songs, and that mashups violate our most basic mores around legitimacy. If artists’ works are their exclusive progeny, then appropriative forms like the mashup are an assaultive affront to artists’ rights to control and protect their ‘children.’

But do artists really own their work, once it is completed? Whatever copyright law may have to say on the subject, our society has not made up its collective mind on this question. Many of us feel that if we purchase a recording, or a book, or a computer program, it is now ours to do with as we please. Sasha Frere-Jones defends the rights of audiences to use creative work to suit their own needs:

See mashups as piracy if you insist, but it is more useful, viewing them through the lens of the market, to see them as an expression of consumer dissatisfaction. Armed with free time and the right software, people are rifling through the lesser songs of pop music and, in frustration, choosing to make some of them as good as the great ones. (Frere-Jones 2005)

Frere-Jones articulates my motivation as a mashup artist precisely.

Kembrew McLeod, a passionate advocate for remixers and other makers of appropriation art, is nonetheless conflicted about the mashup:

Despite my appreciation for them, I do not mean to idealize mash-ups because, as a form of creativity, they are quite limited and limiting. First, because they depend on the recognizability of the original, mash-ups are circumscribed to a relatively narrow repertoire of Top 40 pop songs. Also, mash-ups pretty much demonstrate that Theodor Adorno, the notoriously cranky Frankfurt School critic of pop culture, was right about one key point. In arguing for the superiority of European art music, Adorno claimed that pop songs were simplistic and merely made from easily interchangeable, modular components. Yes, Adorno was a snob; but after hearing a half-dozen mash-ups, it is hard to deny that he is right about that particular point. (McLeod 2005)

This is a thoughtful criticism, but in this instance, I do not believe McLeod and Adorno to be correct. Adorno’s vaunted European art music is, in its way, as modular as contemporary American pop. The components are different, but they nevertheless comprise a finite set, overlaid with fairly rigid restrictions on what is and is not permitted. The rules of harmony and counterpoint are algorithms for producing common-practice era classical music. Software has produced ersatz Bach pieces good enough to fool experts.

Meanwhile, where is it written that mashups must be limited to top 40 pop? Any recording is fair game. Jazz fans can enjoy jazz mashups; country fans can enjoy country mashups; opera fans can enjoy opera mashups. The aforementioned DJ Earworm produced the delightful “Brazilian Diamonds,” combining Django Reinhardt’s “Brazil” with Paul Simon’s “Diamonds On The Soles Of Her Shoes.” The result is a heady blend of jazz, samba, soft rock, isicathamiya and mbaqanga. Who would have guessed that the bouncy rhythms of samba as filtered through the mind of a Belgian gypsy jazz guitarist would mesh so well with the bouncy rhythms of South African pop as filtered through the mind of a Jewish folksinger from Queens? This sort of discovery is only possible via extensive trial and error, and should be rewarded as we would reward any other form of creativity.

It has been my experience that writing an “original” song “from scratch” is more like creating a mashup than unlike it. Songwriting consists of splicing and hybridizing together a series of scale fragments, chord progressions, rhythmic figures, melodic shapes and timbral combinations. The given set of musical modules is bounded by stylistic considerations — I will draw on a different set of modules to write a bebop head than a country ballad. The combinations may be novel each time, but the basic ingredients are not.

The Grey Album

Perhaps the most famous (or notorious) mashup is the 2003 album-length work by Brian “Danger Mouse” Burton called the Grey Album. It accompanies every acapella track from Jay-Z’s Black Album with new instrumentals comprised solely of samples taken from the Beatles’ White Album. Danger Mouse never intended the Grey Album to be a commercial product; he conceived it as a creative challenge to himself. Nevertheless, copies found their way into record stores, and Danger Mouse found himself on the receiving end of legal threats from EMI, administrator of the Beatles’ copyrights. Danger Mouse cooperated with EMI’s efforts to remove The Grey Album from stores, but in the meantime, copyright reformers on the internet turned him into a cause celébre.

On February 24, 2004, the activist group Downhill Battle led an act of civil disobedience known as Grey Tuesday. Hundreds of web sites changed their color schemes to grey, and approximately 170 sites made the Grey Album freely available. Over one hundred thousand copies were downloaded, and the ensuing controversy vaulted Danger Mouse into celebrity. Both Jay-Z and Paul McCartney were vocally supportive of the Grey Album. In Jay-Z’s case, this is unsurprising; he released the entire Black Album in DJ format with the explicit hope that remixers and mashup artists would do exactly what Danger Mouse did. McCartney’s reaction is somewhat more surprising, since the Beatles have generally been strongly protective of their recordings. Nevertheless, in a February 11, 2011 interview with the BBC, McCartney indicated that he regarded the Grey Album as a flattering homage.

Thomas Joo maintains that Danger Mouse “never stood a serious chance of contesting the cultural meaning of the Beatles‘ White Album or Jay-Z‘s Black Album.” (Joo 2012) I myself am proof that this is untrue. I was indifferent to Jay-Z until I heard his music combined with Beatles songs that I had long known and loved. The Grey Album acted as a cultural ambassador, opening me up not only to Jay-Z but to many other hip-hop artists as well. The Grey Album has inspired a flood of imitators, album-length mashups combining Jay-Z’s vocals with Radiohead, Weezer, Brian Eno and others. A notable example is “Dirt Off Your Android,” combining Jay-Z’s “Dirt Off Your Shoulder” with Radiohead’s “Paranoid Android.” As mashups like these become commonplace listening, their impact on the rest of popular music is already being felt, as wild eclecticism and jarring stylistic combinations have moved from the fringe toward the mainstream.

DJs and originality

The least likely exemplars of musical originality are disk jockeys. The typical DJ simply plays one preexisting recording after another. While the job requires attention to song selection and sequencing, few “real musicians” would consider DJing to be a form of creativity, much less an outlet for original expression. Nevertheless, the most skilled DJs have shown considerable ingenuity in their ability to deconstruct and recombine recordings. The cut-and-paste style of urban disco DJs in the 1970s was a crucial influence on the first generation of hip-hop and electronica producers. As technology progresses, the practices of turntable virtuosos have become accessible to average working DJs as well. Ed Montano quotes DJ Goodwill:

You used to be able to just get up and play a record, and it would go for seven minutes, and there’s not much you could do with it. But now… I can loop sections of it, and add bits to it before I go out, and I can get rid of the breakdown if I don’t like it. As technology becomes more palatable and it all goes towards laptops that you’ve already put the music into, you’re going to be able to have so much influence on the music you’re playing. (Montano 2010)

Only the most ambitious DJs presently take advantage of the freedom to create remixes and mashups on the fly in front of a dance club audience. Nevertheless, the practice is spreading. The most meticulously curated and creatively blended mixes show as much of the creative stamp of the DJ as a jazz solo speaks with the voice of the improviser. I foresee that the best DJ mixes will come to be regarded as compositions in their own right, with DJs considered creative authors in their own right. Dance music aficionados already widely hold this view.

The evolutionary model of musical creativity

In his book The Selfish Gene, Richard Dawkins coined the term “meme” to describe a self-replicating information virus, using our minds as hosts. The analogy is to genes, self-replicating molecules using the bodies of organisms as machines to perform the replication. (Dawkins 1976) Memes are transmitted from one mind to another by imitation. This transmission process has been helped greatly in recent history by meme-friendly media like books, recordings and especially the internet.

Dawkins inspired subsequent theorists like Susan Blackmore and Daniel Dennett to argue that all of human culture, language and technology are vast complexes of memes; indeed, memes may even comprise our consciousness and social identities. A key corollary to this theory is that memes evolve semi-independently of their human hosts. Rather than thinking of ideas as belonging to us, we should think of them as symbiotes or parasites, like the mites on our skin or the bacteria in our guts. Sometimes musical memes reward their human hosts (musicians) with wealth, fame and personal happiness. Sometimes the human host ends up broke, despised and alone. The memes don’t “care” one way or the other; they are as mindless as viruses. Whenever we have a song that we dislike stuck in our head, we experience just how independent our resident memes can be.

Susan Blackmore encourages us to take the “meme’s eye view.” From the memes’ viewpoint, humans don’t write music at all. Musical memes self-replicate, mutate and hybridize in our heads. They spread via performances, scores, recordings, teachers, television, movies, web sites and countless other cultural vectors. (Blackmore 2000) The meme theory gives us a useful paradigm for understanding how musical ideas spread. Just as biologists create tree diagrams showing the descent and spread of a particular gene, bifurcating at each mutation point, so too can we make evolutionary trees for memes. Digital sampling in particular makes the heredity networks neatly unambiguous and easy to parse out. It is more difficult to trace the spread of a certain melodic motif or chord progression or rhythmic pattern, but such hereditary histories most assuredly exist.

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. 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. Mutations generally harm the child cells’ ability to survive and reproduce, but every once in a while the mutation is advantageous.

Consider “Amazing Grace,” which was sung to as many as twenty different melodies before it settled into the one familiar to us. Imagine that you know how to sing one of the “Amazing Grace” variants, and that I want to learn it. Say that we can’t read music and have no way to make recordings. You will likely repeat the song to me until I can successfully copy it by imitation. Perhaps I will not quite learn the melody accurately, 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 perhaps I will have stumbled upon an improvement. My version might even spread and eventually crowd out your version. Such a process surely produced the “Amazing Grace” that the world knows now, just as mutation and natural selection produced a variety of hominid species at were then crowded out of existence by humans.

Musical imitation need not take place at the scale of entire songs. It can happen at smaller scales, at the level of riffs and chord progressions and rhythmic motifs. Particularly successful memes in the American folk tradition include the I-IV-V chord progressions, the major and minor pentatonic scales, and the blues scale. When someone combines a variety of memes into a novel configuration, we call the process “composing” or “songwriting.” Writing music is closer to hybridizing and selective breeding than creating a new life form from scratch.

The pioneering producer Brian Eno likes to use the word “scenius” rather than genius to describe exceptional creativity. He believes that the image of the lone visionary is a myth, and that valuable innovations are produced by networks of people communicating ideas back and forth. This view dovetails neatly with the meme theory. A rich and thriving ecosystem of memes under strong selective pressure will produce the most robust and adaptive replicators. By this view, environments like 18th century Vienna or Detroit in the 1960s and 1970s are to be credited for the music they produced more than any particular individual person in those environments.

The meme theory neatly resolves the vexing issues of authorship underlying music-making in the digital domain. Rather than searching in vain for an individual author, we can look at a piece of music and inquire into the natural history of its component memes. We can trace them through software companies, magazines, schools, producers, engineers, compilers of sample libraries, session musicians, songwriters, critics and all the other vectors through which they have traveled to coalesce and hybridize in this particular songwriter’s mind, this sheet of staff paper, this reel of tape, this Pro Tools session, this MP3. Perhaps this complex of memes will be unsatisfying or unfashionable, and will vanish in obscurity. Perhaps it will cause enough gratification to motivate us to copy it, to share it with friends, to imitate and sample and remix it. So it is that the memes evolve and spread.

An example meme: The Amen Break

The most-sampled recording in history is likely a song called “Amen Brother” by the 1960s soul band The Winstons, specifically a five and a half second rhythm break by drummer Gregory Cylvester Coleman. “Amen, Brother” was an obscure B-side that would likely have been forgotten had crate-digging hip-hop producers not discovered Coleman’s drum break and begun sampling it extensively in the 1980s. The Amen break gained a higher profile among hip-hop musicians when Breakbeat Lenny included it in the first volume of his compilation series Ultimate Breaks and Beats.

Over the years since, the Amen break has become ubiquitous not just in hip-hop, but in every style of dance music. It almost single-handedly spawned entire genres of electronica, particularly especially drum ‘n’ bass and its various offshoots. The Amen appears in songs by rock and pop artists ranging from Oasis to Nine Inch Nails. It has also been used in television theme songs and commercials. Casual popular music listeners have likely heard the break it in dozens, if not hundreds, of recordings. Noteworthy examples of the Amen break include “King Of The Beats” by Mantronix, “I Desire” by Salt N Pepa, “Straight Outta Compton” by NWA, “The Angels Fell” by Dillinja, “Girl/Boy” by Aphex Twin, “Nightlife” by Amon Tobin and “Streets On Fire” by Lupe Fiasco. Luke Vibert made an album under the pseudonym Amen Andrews in which nearly every song uses a resequenced variant on the Amen break. Noteworthy television usages include the themes to Futurama and the Powerpuff Girls. The Amen is the exemplar of a successful meme. Its success has not benefitted Gregory Cylvester Coleman, however; he died in obscurity, sharing none of the fame of his drum break.

An example meme: The Champ

“The Champ” by The Mohawks has had a particularly colorful evolutionary history as a meme. The organ riff that begins the song will be instantly recognizable to hip-hop fans due its repeated sampling. The Mohawks were an ad-hoc band of session musicians led by a British organist named Alan Hawkshaw, best known for his commercial jingles, library music and television theme songs. He also played on records by Barbra Streisand and Olivia Newton John, making him a rather unlikely source of inspiration for hip-hop artists. Nevertheless, the Champ riff is one of the signature sounds of 1980s hip-hop. It is sampled in “Eric B is President” by Eric B and Rakim, “Smooth Operator” by Big Daddy Kane, “The Big Payback” by EPMD, and “Miami Bass” by Stetsasonic. Its use tapered off somewhat in the 1990s, but it has never gone out of style entirely; for example, Mary J Blige loops it under almost the entirety of her 2005 song “Gonna Breakthrough.”

The most interesting uses of the Champ riff are the ones that reshape or recontextualize the sample. Guy reharmonizes the sample in “Groove Me,” using the accompaniment to change the riff’s key from B major to C# minor. Fu-shnickens shifts and reorders segments of the sample in “La Schmoove” to produce a variant riff. KRS-One alters the sample even further, reordering its constituent notes until it becomes an almost entirely new melody on “Step Into A World (Rapture’s Delight.)” The most popular song to draw on “The Champ” is “Slam” by Onyx. It does not use the sample itself; rather, Onyx shouts/sings its melody for their chorus.

An example meme: ORCH5

While most famous hip-hop and dance samples come from soul, R&B or rock records, a particularly famous sample comes from a highly improbable source: The Firebird by Stravinsky. A single loud orchestral attack from The Firebird was included in the sample library that came with the Fairlight CMI, where it was labeled “ORCH5.” This orchestral stab came to fame in electronic music culture when Afrika Bambaataa used it in his breakthrough 1982 electro-funk/hip-hop song, “Planet Rock.” Robert Fink evocatively describes ORCH5 as “the classical ghost in the hip-hop machine.” (Fink 2005)

ORCH5 is the loud chord at the beginning of “the Infernal Dance of All the Subjects of Kastchei,” pitched down a minor sixth and slowed somewhat. Fink observes that the eight-bit resolution of the analog-to-digital conversion “produced a brittle, grainy sample whose frequency spectrum is shifted noticeably towards the upper registers of the orchestra. This has the paradoxical effect of making the sample sound both ‘old’ (because its low fidelity cannot capture the full range of the orchestra, as in the pre-LP era), and ‘new’ (because the sound itself is noticeably devoid of romantic lushness).” John Robie, the keyboard player on “Planet Rock,” found that he could play eight instances of ORCH5 simultaneously on both hands, producing a distinctive and enormous-sounding minor-key synthetic orchestral hit. This sound has become a standby in hip-hop and electronica production since then.

Other artists of the early 1980s were inspired by Bambaataa or by happenstance to use ORCH5 as well, including Kate Bush, Art of Noise and Mantronix. The multi-octave minor-key orchestral stab has become something of a trope in hip-hop production, though usually not produced with the expensive and user-unfriendly Fairlight CMI. Instead, producers have imitated the general sound of ORCH5, using whatever combination of synthesizers and samplers is at hand. Meanwhile, “Planet Rock” itself has been sampled and referenced a great many times in later hip-hop and dance tracks, including the aforementioned Fugees song “The Score.”

The Anxiety and Ecstasy of Influence

The literary critic Harold Bloom published a book in 1973 entitled The Anxiety of Influence: A Theory of Poetry. In this book, Bloom argues that a poet drawing on the work of another poet will produce weak, derivative work. While he recognizes that some outside influence is inevitable, he urge poets to resist these influences. Bloom gives voice to the broad consensus surrounding up all fields of creativity in western culture: that an original idea is the most valuable idea, and that artists must strive to avoid imitating their predecessors. The anxiety of influence can be felt whenever musicians resist sampling for moral grounds, rather than aesthetic or legal ones. Jonathan Lethem wrote an eloquent rejoinder to Bloom, an essay entitled “The Ecstasy of Influence.” Not only is this essay a rousing manifesto in favor of the remix and the mashup aesthetic across all art forms, but it is itself an example of the mashup form — the essay is comprised entirely of quotes and paraphrases appropriated from other sources. Lethem asks whether it is necessary that we continue to resist the collective nature of creativity. Emphasis is in the original:

[D]oes our appetite for creative vitality require the violence and exasperation of another avant-garde, with its wearisome killing-the-father imperatives, or might we be better off ratifying the ecstasy of influence—and deepening our willingness to understand the commonality and timelessness of the methods and motifs available to artists? (Lethem 2007)

One might well consider appropriation of sounds created by others to be a form of theft, but one could just as easily consider it to be a tribute, an homage, a way of humbling oneself before one’s source of inspiration. In an ideal world, all samples would be clearly sourced and accredited. Sadly, the high cost of sample licenses drives many sampling musicians underground and encourages secrecy about sources.

Copyright

Plato predicted the modern attitude toward copyrighted recordings when he spoke about the written word in Phaedrus: “[E]very word, when once it is written, is bandied about alike among those who understand and those who have no interest in it, and it knows not to whom to speak or not to speak; when ill-treated or unjustly reviled it always needs its father to help it; for it has no power to protect itself.” (Gunkel 2008) Copyright protects recorded artifacts from “ill-treatment.” It does not protect creative acts themselves.

The image of paternity continues to underlie our moral instincts around copyright. Gunkel makes the connection to parenting explicit:

[R]ecordings are, to put it in rather blunt terms, promiscuous bastards… And, in being separated from and abandoned by its progenitor, writing is unavoidably exposed to considerable abuse and misuse… Copyright… includes stipulations that articulate proper use of recorded material and delineate what constitutes inappropriate application of the same. This is done, it is argued, in order to assert the property rights and moral authority of the legal author over his/her creative product. It is, to redeploy the Platonic metaphor, a matter of paternity.” (Gunkel 2008)

The legal status of derivative musical works like remixes and mashups is murky at best. Judicial opinion has been contradictory, with some rulings allowing small portions of copyrighted recordings to be used without permission, while others forbid taking even the shortest and unrecognizable unauthorized sample. The Fair Use exception has protected satirical works, but has thus far not afforded sampling artists much protection generally.

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. Lawrence Lessig and his allies believe 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.” In their view, copyright law is grossly overbalanced in favor of large corporate entities and other powerful actors. (McLeod and DiCola 2011) Thanks in part to high-profile controversies like the Grey Album, there are signs that our copyright culture might be relaxing, de facto if not de jure.

Greg “Girl Talk” Gillis is a mashup artist whose work consists entirely of highly recognizable pop samples. Girl Talk samples with no permission whatsoever, and sells his music commercially. He invokes Fair Use to justify his practices. So far, no one has taken action against him. This is probably due less to the robustness of Fair Use as a legal argument, and more to public relations considerations. Copyright attorney Martin Schwimmer once assured me that no one will ever sue Girl Talk, regardless of the legal merits, because it would be a losing proposition. Girl Talk would be a highly sympathetic defendant, with a fervent online following. (Martin Schwimmer himself is a fan.) If Girl Talk is successfully sued, the internet will rise up in protest, resulting in a public relations disaster that would cost the copyright holder far more than they could win in a settlement. If the hypothetical copyright holder brought a case and lost, it would open the floodgates to unlicensed sampling. Rights holders prefer the status quo, where the law is murky and people mostly license their samples to be on the safe side. This tenuous arrangement is unlikely to be stable in the long term.

Is Compulsory Licensing the Answer?

A compulsory license for compositions has been in place since the Copyright Act of 1909. The license allows anyone to perform or record a cover or arrangement of an existing copyrighted composition, so long as they pay a license fee. This fee is determined by statute, not by the copyright holder. Furthermore, the copyright holder can not refuse to grant a license. In fact, there is no need for the would-be cover artist to have any contact with the copyright holder whatsoever; licenses are handled by the quasi-governmental Harry Fox Agency. The compulsory license does not allow musicians to alter the composition beyond light stylistic adaptation, nor does it allow derivative works to be created. While this scheme has been the occasion for some debate, it has worked well enough for over one hundred years.

Legal scholars of the free-culture movement argue that there should be a similar compulsory licensing scheme for sampling and remixing of recordings. (McLeod and DiCola 2011) Currently, anyone who wishes to sample a recording needs the permission not only of the copyright holder of the composition on the recording, but also the copyright holder of the master recording itself. Typically, a songwriter will hold the composition copyright, and a record label will hold the master recording rights. Either of these rights holders can agree to a sample license or refuse it, and can set whatever license fee they see fit. A compulsory license would make it as easy and inexpensive to license a sample as a cover version. Thomas Joo, an opponent of such a scheme, believes that by holding down the market rate for sample clearance, a compulsory license would be a de facto subsidy for samplers and remixers. He objects to such a subsidy, because he does not feel that the interests of appropriation artists should be favored over those of rights holders. (Joo 2012)

Should we place a higher value on the right of a copyright holder to control the use of their work, or on the right of everyone else to recode that work? As a producer and ardent fan of sample-based music, I come down firmly in favor of a compulsory license, along with a clear and generous fair use policy. In the media-saturated world we inhabit, the ability to claim ownership over that media, to repurpose it for our own creative ends, and to be able to freely disseminate our derivative works, is essential to a healthy and functional intellectual climate. Our culture needs remixes and mashups far more urgently than it needs new string quartets or bebop heads. It is exactly the controversial nature of recoded works that makes them culturally valuable.

Conclusion

Trying to identify the author or authors of a given work of electronic music is challenging at best and impossible at worst. Consider “Nas Is Like.” We can identify Nas as the writer of the rap portion, any quotes and allusions aside. But the authorship of the backing track. The components were arranged by DJ Premier, who also programmed the drum machine. But those components were created by Nas and his various collaborators, by the producers and performers on the records that Premier sampled, by Biz Markie, by the makers of the turntables and samplers Premier used in his production, and so. Once we include the web of influences on all of these people, the notion of authorship comes to appear irrelevant.

We will still need some way to identify composers and copyright owners, if only for the sake of the commercial and legal status quo. Regardless of our laws, however, the memes will continue to replicate and spread, as Danger Mouse proved. We should bring the law in line with the inflexible realities of our culture, with an awareness of the true complexity of the concept of authorship in any work that we produce. Ideally, we can embrace the meme’s eye view, and see ourselves and our computers as host environments where music can make itself. The less we resist the memes’ natural evolution, the greater the diversity of new ideas they will produce for us.

Bibliography

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Frere-Jones, Sasha. “1 + 1 + 1 = 1 — The New Math of Mashups.” The New Yorker,2005, Volume 80, Issue 42, pp. 85 – 88.

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Discography

Afrika Bambaataa & the Soulsonic Force — “Planet Rock”

Anonymous — “Gettin’ Freaky In Black”

Biz Markie — “Nobody Beats The Biz”

Danger Mouse — The Grey Album

DJ Earworm — “The United State of Pop” series, “Brazilian Diamonds”

Double Dee and Steinski — “Lesson 1 – The Payoff Mix,” “Lesson 2 – The James Brown Mix,” “Lesson 3 – The History of Hip-Hop Mix”

Fugees — “The Score”

Grandmaster Flash — “The Adventures Of Grandmaster Flash On The Wheels Of Steel”

John Coltrane — “My Favorite Things”

Max Tannone — “Dirt Off Your Android”

The Mohawks — “The Champ”

Nas — “Nas Is Like”

Pete Rock and CL Smooth — “They Reminisce Over You”

The Winstons — “Amen Brother”

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.

Art and architecture critic Hal Foster coined the term “recoding” to refer to sampling, remixing, mashups, quotation and all other forms of artistic appropriation. This is a useful word — while the various practices it subsumes differ technically, they spring from the same creative impulse and are treated similarly under the law. Joo does some sly recoding of his own when he subtitles one of the sections of his paper “More Samples, More Problems?” in homage to “Mo Money Mo Problems.”

Sampling lawsuits go back to the earliest days of hip-hop

Lawsuits over unauthorized use of copyrighted material in hip-hop hardly began in the 1990s; they go back at least as far as 1979, when Nile Rodgers and Bernard Edwards successfully sued the Sugarhill Gang for their appropriation of “Good Times.” Joo provides a valuable service by debunking the sampling lawsuit mythology. However, he goes too far on the other side, casting doubt on the basic validity and worth of remixing and sampling pop culture.

Joo is skeptical of claims made by Lessig and others that that relaxing copyright rules would advance semiotic democracy:

Law and technology facilitating recoding not only help independent record labels and artists question the cultural meanings advanced by major record companies; they also allow the latter to appropriate from the former. Moreover, recoding not only creates new meanings from existing cultural materials, but also repeats and reinforces those dominant cultural meanings. Indeed, by creating alternative meanings for dominant cultural materials such as popular music, recoding can contribute to their commercial appeal and cultural influence… Not all borrowing of cultural products constitutes autonomous meaning-making by individuals. For example, permitting recoding without copyright permission enables individuals to freely appropriate from the powerful culture industries, but it also enables appropriation in the reverse direction. Furthermore, individuals who recode may assign new meanings to dominant cultural products, but they cannot easily displace the existing meanings. Thus recoding re-disseminates those existing meanings and reaffirms their importance.

This is a thought-provoking claim, but one that I ultimately find unconvincing.

Is compulsory licensing the answer?

Some free culture people advocate for the institution of a compulsory licensing scheme for sampling, similar to the longstanding system for covering other artists’ compositions. Joo does not consider this a reasonable solution. He favors the current situation, where copyright owners can set whatever licensing terms and prices that they see fit, or refuse to grant licenses at all. Joo believes that a creator’s right to control the meaning and interpretation of their work deserves protection more than the right of others to recode that work. He sees compulsory licensing of sampling as an effective subsidy for samplers. The market presently sets licensing fees, and a mandated licensing scheme would keep the prices artificially low. Joo questions whether such a de facto subsidy of sampling is worthwhile:

[T]he tension between legal restrictions and creative energy can be a productive one. After all, copyright law does not constitute a prohibition on cultural appropriation: it merely assigns it a price, just as every aspect of artistic production, from guitars to paintbrushes, has a price. Sampling in hip-hop, like earlier kinds of musical borrowing, did not develop in some mythical golden age in which intellectual property was unregulated.

Joo observes that hip-hop pioneers like DJ Kool Herc managed to recode copyrighted works at for-profit dance parties under a copyright regime essentially identical to the one that exists today. This glosses over an important distinction, however. Herc and his peers were operating outside of the law, not in compliance with it. A venue is supposed to pay a blanket license to the rights management organizations covering whatever songs get played by DJs, the jukebox or live bands. But that license doesn’t extend to the extensive alterations that hip-hop turntablists make to recorded works. Also, block parties tend not to pay blanket license fees. Joo equates not being punished with having the tacit blessing of the law.

Did the Biz Markie lawsuit end the golden age of sampling?

The greatest strength of Joo’s paper is his clarification of the widely misunderstood decision in the Grand Upright Music v. Warner Bros. Records. The case resulted in a Biz Markie album being pulled from store shelves due to an unlicensed sample from “Alone Again” by Gilbert O’Sullivan.

Free culture advocates point to this case as having imposed a new legal sanction on unlicensed sampling that hadn’t previously existed. The story goes that before Grand Upright, hip-hop and electronica artists were free to sample at will; after Grand Upright, only the biggest stars could afford to use samples. Joo points out that this is a gross misreading of the decision. Biz Markie and his label were perfectly aware that they were required to obtain permission for all of their sample usage, and that they had failed to obtain such permission for the Gilbert O’Sullivan sample. The only issue in the case was over who precisely owned the copright to “Alone Again,” and whether the injunction ordering the album removed from stores was an appropriate remedy.

So are you allowed to sample without permission or not?

The law regarding sampling copyrighted recordings is unclear. Prior to the Biz Markie case, music labels worked out ad-hoc arrangements, setting prices and reaching agreements according to the specific situation. It’s possible that Biz Markie and other golden age hip-hop artists could have put forward a Fair Use argument for not having to pay for samples at all, so long as their use was sufficiently transformative as to constitute a commentary on or parody of the original work. But this isn’t what artists did; most recognizable samples got cleared, and those artists who didn’t seek permission knew they were at risk of a lawsuit. While sample licenses may have been costly, Joo sees that cost as belonging to the same category as the cost of recording studios, engineers, marketing, distribution and so on.

Joo is less persuasive in his analysis of Double Dee and Steinski‘s 1983 track, “Lesson 1 – The Payoff Mix,” which is comprised entirely of well-known copyrighted songs, along with movie and TV quotes, spliced together from analog tape.

This track and its followups were enormously influential on sample-based producers. Steinski and Double Dee neither sought nor obtained permission to use any of their samples, and never released their proto-mashups commercially. Nevertheless, their work was widely heard and imitated. Joo takes this as evidence that copyright law didn’t hinder creative recoding. However, he misses a key point. The “Lesson” mashups became famous because they were widely played by DJs on commercial radio and in clubs, quite illegally. The fact that Double Dee, Steinski, the clubs and radio stations all escaped legal sanction is their good luck, not a sign of the culture’s broader tolerance for such copyright violations.

Joo is on firmer ground when he observes that several classic sample-heavy hip-hop records were made using licensed samples, including the Beastie Boys’ Paul’s Boutique and De La Soul’s 3 Feet High and Rising. While the license fees for both albums were considerable, that didn’t keep them from turning substantial profits. Joo also points to the example of Public Enemy, who expressed defiance of the law in their lyrics but nevertheless licensed their more recognizable samples. Public Enemy frontman Chuck D has himself brought two infringement suits for unauthorized sampling of his voice.

The conventional wisdom is that hip-hop producers were forced to abandon the dense collage method favored by Public Enemy and De La Soul for fear of lawsuits. Joo points out that this was more likely a consequence of hip-hop gaining a higher profile and becoming more profitable, resulting in copyright holders raising their clearance fees — a simple matter of supply and demand. Furthermore, Joo believes that the collage technique may simply have become passé. While many hip-hop fans would disagree, this argument can’t be dismissed out of hand.

Girl Talk and Fair Use

The law on sampling continues to be confusing and contradictory, with some courts finding that use of very short samples doesn’t violate copyright law, while others finding that any use of a copyrighted recording whatsoever is a violation. The Fair Use exception to copyright law isn’t universally recognized, though Joo considers it to be a good enough shelter for sampling artists from unfair prosecution. He cites Greg “Girl Talk” Gillis, whose work consists entirely of highly recognizable pop samples. Girl Talk samples with no permission whatsoever, invoking Fair Use to justify his practices. So far, no one has taken action against him, but this is probably not due to the robustness of Fair Use as a legal argument. Copyright attorney Martin Schwimmer once told me that no one will ever sue Girl Talk, regardless of the legal issues, because it would be a losing proposition. Girl Talk would be a highly sympathetic defendent, since he’s white and well-educated, with a fervent online following. (Martin Schwimmer himself is a fan.) If Girl Talk is successfully sued, the internet will rise up in protest, resulting in a public relations disaster that would cost the copyright holder far more than they’d win in a settlement. If the hypothetical copyright holder brought a case and lost, it would open the floodgates to unlicensed sampling. Rights holders prefer the status quo, where the law is murky and people mostly license their samples to be on the safe side.

Copyright owners and creators aren’t necessarily the same people

Joo is too quick to overlook the absurdities of copyright law as it stands. He notes approvingly that in the case Bridgeport Music Inc. v. Dimension Films, the interests of a less-wealthy and powerful musician (George Clinton) prevailed over those of two wealthier and more-powerful entities (NWA and Dimension Films.) However, this isn’t quite accurate. George Clinton had sold his copyrights long before the case, in an ill-considered business decision. The winner of the Bridgeport case was Bridgeport Music, a company that buys up copyrights and profits from licensing them. George Clinton didn’t benefit from Bridgeport’s lawsuit at all. In fact, Clinton is outspoken in his enthusiasm for sampling of his work.

Sample licenses are getting expensive

As hip-hop and electronic dance music have become more commercially successful and culturally prominent, rights holders have recognized the value of samples and have raised their license fees accordingly. Free culture advocates and hip-hop lovers alike complain that presently, the only way to make collage-like works from pop music is to either skirt the law or pay exorbitant sums of money. In their book Creative License: The Law And Culture Of Digital Sampling, Kembrew McLeod and Peter DiCola calculated that if Paul’s Boutique were made today, the sample licenses would result in almost twenty million dollars in losses on 2.5 million copies sold. The members of Public Enemy complain that their albums can’t be reissued because of the prohibitive licensing costs. Joo is unconvinced that the price of sample licenses is too high, and argues against a compulsory licensing scheme.

By limiting a copyright owner‘s control over derivative works and allowing users to simply take and pay, a compulsory licensing regime would likely lower users‘ costs. But it would externalize and subsidize users‘ costs; it would not necessarily lower costs overall. A compulsory licensing regime would constitute a subsidy of users at public expense–i.e., the considerable expense of administering such a regime.

His concern here seems overblown; after all, a similar argument could be made against compulsory licensing for compositions, but that system has worked well enough for a hundred years.

Is sampling good for society?

The fundamental question underlying all of the copyright controversies is this: should we place a higher value on the right of a copyright holder to control the use of their work, or the right of everyone else to recode that work? Joo is unequivocal in siding with the copyright holders. “Even assuming recoding advances semiotic democracy, subsidizing any method of cultural production can do so.” This argument too glibly equates all forms of artistic expression, however. In the media-saturated world we inhabit, I would argue that recoding of that media is a much more important right than the ability to compose new string quartets or bebop heads. It’s exactly the controversial nature of recoded works that makes them culturally valuable.

Not only is Joo unconvinced that recoding has special value; he thinks it may actually be harmful to semiotic democracy by reinforcing the hegemony of the corporate-produced media. He quotes Hal Foster: “Capitalism welcomes recoding, incorporates it, and co-opts it: such has been the fate of nearly every youth subculture based on recoding, from rock ‘n‘ roll to punk to hip-hop.” This is true, but both Foster and Joo neglect the time lag factor. Capitalism only appropriates recoding movements once they are widely established and no longer dangerous. Coca-Cola can visibly sponsor Jazz At Lincoln Center because it has been many decades since anyone found jazz to be controversial or threatening. Similarly, cruise lines wouldn’t use Iggy Pop’s “Lust For Life” in their ads if the song was still widely associated with heroin use, as it was when it was first released.

Joo is quite mistaken when he says that “[t]he mere act of recoding pop culture is no longer by itself an important or novel artistic statement.” This may be true in certain circles, but is by no means a valid generalization. Musicians, fans and critics remain deeply divided over the merits and ethics of sampling, many decades after it has become a commonplace. Recoding can even provoke vehement rage. Still, Joo does not believe that this controversy is reason enough to be protective of recoding.

Lowering the cost of recoding could retard semiotic democracy in that it would subsidize not only the semiotically weak and resource-poor, but also the most culturally influential members of society. Given the greater resources and distribution networks of established media corporations, their recodings are likely to have more cultural influence than those of less powerful speakers.

The problem with this argument is that it already describes the status quo. For example, Disney is notorious for appropriating public-domain folk tales, and then vigorously suing anyone who appropriates their works.

Does hip-hop need sampling?

Joo questions hip-hop essentialists who maintain that recoding is fundamental to the art form: “Sampling is… neither necessary to nor specific to hip-hop music.” He invokes the Beastie Boys, OutKast and the Roots as hip-hop artists who play conventional instruments. He neglects to mention, however, that these artists also sample and quote extensively. Ahmir “Questlove” Thompson of the Roots is a world-class drummer, but he nevertheless sometimes uses sampled breakbeats in his productions rather than playing live drums. And while Joo further tries to weaken the connection between hip-hop and recoding by mentioning its roots in spoken-word poetry, he neglects to mention that rappers “sample” other songs by quoting them continually, and sometimes run afoul of copyright law as a result. For instance, Slick Rick and Doug E. Fresh quoted the Beatles’ “Michelle” in the original version of “The Show.” They were forced to remove the line by EMI in subsequent pressings.

Joo is sanguine that the restrictions imposed by clearance costs stimulate new forms of creativity. For example, he cites DJ Shadow, who uses unlicensed samples that are too fragmentary or obscure to be litigated over. But flying below the legal radar is not the same thing as cultural approbation. Joo also gives a poor example with M.I.A.‘s 2007 hit, “Paper Planes.” He commends her for using samples of gunshots and a ringing cash register rather than recoded pop, while neglecting to mention that a looped sample of the Pixies runs throughout the entire song, and that the chorus’ structure references Wreckz-N-Effect.

Joo is right to point out that that the stereotype of hip-hop’s pioneers as disenfranchised and poor is a gross oversimplification. From the beginning, hip-hop artists have come from a diversity of class backgrounds. Joo is also correct that in the 1980s, samplers were expensive machines limited to the technological elite. However, once again, he goes too far in puncturing the hip-hop creation myth. Artists who did not have access to digital samplers used whatever means were available to them to do their recoding. Q-Tip of A Tribe Called Quest reminisces in the documentary Beats, Rhymes And Life about making painstaking “pause tapes,” a process that took hours to produce a few minutes of a looped sample.

Sampling musicians turn music listening into a conversation

Just as recording was a novel art form a hundred years ago, so too is sampling today. The ability to sample and remix recordings changes them from passive media to interactive media. Joo undervalues this transformation, and the art of sampling generally: “[S]amples are valuable to music producers because they offer a way to obtain the sound of a musician without employing any musicians.” This betrays Joo’s aesthetic preconceptions. Sampling musicians are still musicians. Creative sample use requires as much skill and practice as creative violin or piano playing. When Joo equates sampling with “automated production methods in other industries,” he shows ignorance of the human choices that comprise the sampling process. Furthermore, Joo undervalues the power of recoding to reshape the meaning of source material: “Even the most active engagements with texts, such as the production of innovative derivative works, involve at least some ceding of the meaning-making function to the author of the source work.” This is demonstrably untrue; it is quite possible for a recoded work to be significantly greater than the sum of its parts. For example, the song “They Reminisce Over You” by Pete Rock and C.L. Smooth turns samples of a lite-jazz recording of a Jefferson airplane song into the basis of an elegaic tribute to a friend who died young. Pete Rock and C.L. Smooth turn trite and banal source material into a powerfully moving work.

Joo continues to be inaccurate in his analysis of the Grey Album, a mashup of the Beatles’ White Album and Jay-Z’s Black Album created by the producer Danger Mouse. Joo maintains that Danger Mouse “never stood a serious chance of contesting the cultural meaning of the Beatles‘ White Album or Jay-Z‘s Black Album.” I myself am proof that this is untrue. I was indifferent to Jay-Z until I heard his music combined with Beatles songs that I knew and loved intimately. The Grey Album acted as a cultural ambassador, opening me up not only to Jay-Z but to many other hip-hop artists as well. Jay-Z is well aware of this effect, and releases his albums in remix-friendly acapella versions with the outspoken hope that people will do exactly what Danger Mouse did.

When Joo says that recoding corporate-created cultural commodities only further cements their hegemony, he conflates the terms “corporate-created” with “corporate-owned.” EMI may own the Beatles’ copyrights, but the Beatles aren’t a corporate entity. (They tried to become one in the late 1960s with their Apple company, and failed spectacularly.) When Danger Mouse recodes the Beatles, he is engaging in a dialog with four musicians, not the faceless corporation who happens to own their copyrights. Joo is eager to convince us that consumption of corporate-produced pop music is no different politically than consumption of corporate-produced sneakers. This is a gross misunderstanding of the musical experience. I may purchase Beatles or Jay-Z recordings, but I don’t “consume” those recordings. I have close and ongoing emotional relationships with them, I study them and remix them, imitate them and react against them. I have no such intellectual discourse with my sneakers. Recoding has made my formerly one-sided relationship with recordings into a dialog, whether that means arranging “Dear Prudence” for a jazz octet or mashing it up with a Michael Jackson song.

Joo’s misunderstanding of the music-listening experience extends to the music production process. He observes that “[l]ike commercial pop hits, the very technology of digital sampling consists of commodities sold by corporations.” This is a facile and meaningless comparison. Some music production is indeed sold by large and powerful corporate entities (like Apple’s Logic); some is sold by small, independent companies (like Ableton Live); and some is given away for free on the Internet (like Audacity and ChucK.) Joo is even more mistaken that it’s impossible to assert ownership over mass-market entertainment. “Because media culture is a product we consume rather than make (at least not entirely), it is not entirely our culture.” This is exactly why it’s so important that we have a right to recode it. Joo draws a false equivalency between “watching television, writing fan fiction, or remixing a hit pop song” as “merely guilty pleasures, more like eating junk food, drinking beer, or driving a big car, and less like meaningful expressive or political activity worthy of special legal concern.” I’m inclined to agree with him about watching TV, but he’s utterly wrong about remixing (and fan fiction.) Writing generic classical or jazz melodies requires significantly less effort for me than a creative remix. There’s no comparison to be made with watching television or eating junk food.

I agree with Joo that the health of semiotic democracy depends on many factors besides copyright law. And I appreciate his effort to puncture the mythology of the free-culture movement. However, his own counterarguments are oversimplified as well, and he doesn’t value recoding highly enough. The free-culture movement may not have its facts in order, but its political heart is in the right place.

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.