The Beastie Boys, James Newton, and phonographic orality

One of the most complicated copyright situations covered in my Musical Borrowing class is the landmark sampling lawsuit Newton v. Diamond. “Newton” is jazz flutist and composer James Newton, not to be confused with James Newton Howard. “Diamond” is Michael Diamond, aka Mike D of the Beastie Boys. The song at issue is the Beasties’ “Pass the Mic” (1992).

The flute sample in the intro and throughout comes from James Newton’s piece “Choir” (1982).

If you want to sample legally, you need two separate licenses: one from the owner of the audio recording (typically a record label) and one from the owner of the underlying song or composition (typically the songwriter or composer, or their publisher.) The Beastie Boys got permission to use the recording of “Choir” from James Newton’s label, ECM, and paid a license fee. They did not, however, seek permission from Newton himself. ECM didn’t ask Newton either, and he didn’t even find out about the sample until eight years later, at which point he sued the Beasties for copyright infringement.

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We Are Never Ever Getting Back Together

I was not expecting to write a post on here about Taylor Swift. I have nothing against her and wish her the best, I’m just not her target audience. But when you have kids, you find yourself in all kinds of new situations. Ever since my daughter started second grade, she has gone from mildly Taylor-curious to being a full-blown Swiftie. We’ve been listening to the greatest hits together, and so far, “We Are Never Ever Getting Back Together” is the one I like the best. It’s from Taylor’s 2012 album Red, and it was her first number one Billboard hit. She co-wrote and co-produced it with Max Martin and Shellback.

Taylor also released a version for country radio. It has the banjo mixed louder, it lacks the backwards guitar parts and synth swooshes, and the drums don’t have such a conspicuously electronic timbre. I think the pop version is better. 

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Musical Borrowing syllabus

This fall I’m teaching Musical Borrowing from Plainchant to Sampling at the New School for the first time. Here’s my syllabus. It will probably evolve as we go, but this is the initial plan.

This course on “non-original” music explores how frequently existing compositions have been appropriated and adapted into new works, and how these borrowings challenge conventional notions of originality and authenticity. The course provides historical perspectives on musical borrowing from the Renaissance through 19th-century paraphrases and 20th-century cover versions to debates about sampling and plagiarism cases today. It explores the evolving cultural, philosophical, legal, and economic considerations around the phenomenon of musical borrowing. Students engage with these topics through guided listenings, readings, response papers, quizzes, class presentations, and creative projects, with a final research/analysis paper on a recent/current case of musical borrowing. A basic knowledge of music theory and some ability to read music notation are helpful but not required for this course.

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Boogie Chillen

Here’s one of the heaviest and most wonderful recordings ever made.

The song is so mysterious, so intense, so ancient-sounding yet so fresh. John Lee Hooker recorded it in 1948 at United Sound Systems in Detroit. (He re-recorded it many more times afterwards.) It went to number one on the R&B chart, which is pretty impressive for a song whose only percussion is Hooker’s foot stomping on a miked-up shipping pallet. When I was an ignorant teenager, I assumed that Hooker recorded this way because it’s how he was used to playing on his back porch in Mississippi. In fact, Hooker usually played with a band at the time, and he only recorded solo at the suggestion of his producer, the breathtakingly sleazy Bernie Besman.

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Did Lorde rip off George Michael?

Lorde has a new song. If you are a George Michael fan, parts of it will sound very familiar!

The guitar part in the first verse is strongly reminiscent of the one in “Faith.”

But people seem to be mainly worked up about the similarities in the overall rhythmic groove and chord changes to the ones in “Freedom ’90.”

Let’s unpack!

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Is it okay to post tracks with unlicensed samples?

I am not a lawyer, just a guy who studies hip-hop academically. But I’m married to a lawyer, and have spoken to various music industry people and done a lot of reading on this. My advice is to go ahead and post tracks with uncleared samples, even though doing so is technically illegal.

Flute in Simpler

Understand that you are not allowed to use samples without permission, even if you are giving away the track for free, and even if you give credit and say you aren’t intending to infringe anyone’s copyrights. But posting tracks with uncleared samples is “illegal” the way jaywalking is illegal. It is very unlikely that doing it will get you into any trouble. Entertainment lawyers cost money, and the copyright holders have better things to do than go after indie artists who aren’t profiting off their samples. The chief copyright attorney for a major publisher told me that they don’t go after random people on the internet, because there’s no upside, and it attracts negative publicity.

If your track does blow up, and you want to release it on a major label, or license it for a TV show or movie, or otherwise make real money from it, then the situation changes. At that point, you will absolutely have to negotiate a sample clearance, both with the songwriter(s) and the owner(s) of the master recording (usually not the same people). You or your label can use a sample clearance service, or hire an entertainment lawyer. I do not recommend trying to do this on your own. The clearance might take the form of a one-time fee, a percentage of royalties/publishing, or both. Depending on who you sampled and how well-resourced they are, this might be a big up-front payment or a major percentage of your publishing. So you or your label might decide that it doesn’t make sense to go through with the clearance. At that point, you will have to replace the sample or withdraw the track from circulation.

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Remixing “A Day In The Life”

Back in 2009, Harmonix came out with The Beatles: Rock Band. In order to prepare the sound files for the game, the company needed the original multitrack stems for fifty Beatles songs. Someone at the company posted the stems online, and they remain in widespread circulation. (You can easily obtain them via a Google search.) This was a tremendous gift for people who teach production, songwriting and the history of music technology. It was also a gift for people whose preferred method of expressing their fandom is through remixing. I fall into both categories.

A few years ago, when I was first teaching myself controllerism, I went through the multitracks of “A Day In The Life” and sampled a bunch of loops from each stem: drums, bass, piano, guitar, orchestra, and vocals. I’m writing a book chapter right now about Ableton Live and the Push controller, so to help focus my thoughts, I figured I would load all these loops into a new session and see what I could make happen. I decided to limit myself only to material from the song, in the spirit of The Reflex. Here’s the result:

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Ableton Loop 2018

I’m recently home from Ableton’s stupendous “summit for music makers,” and I’m still mentally unpacking it all.

Ableton Loop posters

Loop was quite a different experience from last year, when Ableton held it in their home city of Berlin. This year, they moved it to Los Angeles to make it easier for people in Latin America and the Pacific to get there. Rather than the dark and cold of November in Germany, we got to enjoy Southern California’s high seventies (and raging forest fires, so, a tradeoff.) In Berlin, the conference was all held in one big building, the Funkhaus recording studio complex. In LA, it was spread across several smaller venues, including the Ricardo Montalbán Theater with its beach-like roof deck, and the legendary EastWest Studios.

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Ilan meets the Fugees

My youngest private music production student is a kid named Ilan. He makes moody trip-hop and deep house using Ableton Live. For our session today, Ilan came in with a downtempo, jazzy hip-hop instrumental. I helped him refine and polish it, and then we talked about his ideas for what kind of vocal might work on top. He wanted an emcee to flow over it, so I gave him my folder of hip-hop acapellas I’ve collected. The first one he tried was “Fu-Gee-La [Refugee Camp Remix]” by the Fugees.

I had it all warped out already, so all he had to do was drag and drop it into his session and press play. It sounded great, so he ran with it. Here’s what he ended up with:

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Goodbye SoundCloud?

I love SoundCloud. I love it for being an exceptionally easy way to share my music with people all over the world. I love the community aspect, especially the Disquiet Junto. I have all of my students host their portfolios there. But like a lot of the electronic musicians who form the heart of the SoundCloud userbase, I’m running into some problems with copyright.

Recently, I needed to unwind from a stressful morning, so I fired up Ableton, put in some Super Mario Bros mp3s and James Brown breaks, and went to town. I uploaded the results to my SoundCloud page, as usual, but got one of their increasingly frequent copyright notices.

SoundCloud copyright notice

I’ve uploaded a lot of material to SoundCloud that violates copyright law in various ways, and for the most part, no one has made any objection. I’ve occasionally used some long intact samples that triggered takedown notices, but my remixes and mashups are usually transformative enough to slip through the filter. Lately, however, I’m finding that SoundCloud has dramatically stepped up its copyright enforcement. A few months ago, I could have posted my Super Mario Bros/James Brown mashup without any trouble. Not any more.

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