Manu Dibango released “Soul Makossa” in 1972. He wrote it as the B-side to “Mouvement Ewondo,” a praise song for the Cameroonian football team on the occasion of the 1972 Tropics Cup. Language Log explains the chant-like lyrics:

The story behind these seemingly nonsensical syllables is a fascinating one, originating in the Cameroonian language Duala.

Duala is spoken in Douala, Cameroon’s largest city, which has long been a musical hotbed. Since the 1960s, Cameroonian pop music has been dominated by a rhythmic style of dance music from Douala known as makossa. The Duala word makossa is often glossed as “(I) dance” (as in this article by Cameroonian linguist George Echu). The entry for makossa in the Oxford English Dictionary further explains that makossa is “derivative of kosa ‘to peel or remove the skin of (a fruit or vegetable)’; the name refers to the twisting and shaking movements of the dancer.”

Language Log quotes this excerpt of Dibango’s autobiography, Three Kilos of Coffee:

On one side of the 45 I recorded the hymn [praise song]; on the other I recorded “Soul Makossa,” written using a traditional makossa rhythm with a little soul thrown in. In my Douala neighborhood, at my parents’ house, I rehearsed this second piece. The house had no air-conditioning, and the windows were wide open. All the kids flocked around. Hearing me rehearse, they fell over laughing. Unbelievable — how on earth had I concocted that mishmash? Poor makossa really took a blow. My father was astonished: “Can’t you pronounce ‘makossa’ like everyone else? You stutter: ‘mamako mamasa.’ You think they’re going to accept that in Yaoundé?” The Cup organizing committee reacted the same way. The march on side one they found “impeccable.” But the other side… “Really, Manu has gone nuts. What possesses him to stutter like that?”

The New York DJ and party promoter David Mancuso got his hands on “Soul Makossa” and played it incessantly at his loft parties. The song became an underground hit, especially when it started getting airplay on WBLS. The few copies floating around New York were quickly snapped up by other DJs. Several bands rushed out their own covers to fill the gap, most notably Baba Olatunji and the Lafayette Afro-Rock Band. Their versions are fun, but nowhere near as funky as the original. Finally, Atlantic Records released Manu Dibango’s version on one of their sub-labels, and it went so far as to crack the top 40 in 1973.

Soul Makossa quotes, samples and remixes

Quoting “Soul Makossa” became something of a trope in the early eighties, ranging from subtle references to the beat or bassline or horn line to full-blown quotation. My favorite example is by Nairobi featuring the Awesome Foursome.

This song just screams 1982, especially with those 808 cowbells. This song was itself sampled in many other songs, including Schoolly D’s “Mama Feel Good.”

Kool Moe Dee’s “Pump Your Fist” draws on “Soul Makossa” for percussion, the wah guitar stab and part of the main sax riff.

A more recent example: “Latinhead” by Dirty Beatniks.

Soul Makossa has also been sampled by Jay-Z, Geto Boys, Poor Righteous Teachers and A Tribe Called Quest, among many others. See a full list of samples.

Michael Jackson and “Wanna Be Startin’ Something”

By far the most famous musical descendant of “Soul Makossa” is Michael Jackson’s first single from Thriller, the best song on that album and a strong contender for the best song of the eighties, period.

I was at a hippie-ish wedding this past summer. People were having a good time, but not really dancing. Then “Wanna Be Startin’ Something” came up on the iPod and the party suddenly jumped off. Little kids, old folks, everyone in between, people were getting down. Say what you want about Michael Jackson as a human being, but there’s no denying the power of this song. It never fails to get people shaking their butts, across all ages, races, classes and cultural backgrounds.

The copyright-minded among you might well ask: did MJ steal the Makossa chant? Manu Dibango certainly thought so, and sued MJ, eventually reaching an out-of-court settlement. The issue isn’t a cut-and-dried one for me, though. Here’s a side-by-side comparison of the two chants:

The most obvious difference is in the syllables, but there are musical differences too. Manu Dibango’s chant is a two-bar phrase sung/chanted entirely on the note G, over an unchanging G7 chord. Michael Jackson’s chant is a four-bar phrase with a call and response structure. He adds a two-note melody harmonized in thirds and a chord progression alternating between D/E and E7. MJ also uses a little more syncopation. I’d say that MJ’s chant is more of an adaptation than a direct theft.

“Wanna Be Startin’ Something” quotes, samples and remixes

Pop and hip-hop musicians quote MJ’s version of the Makossa chant incessantly. Some high-profile examples:

• “No Clause 28” by Boy George
• “Gettin’ Jiggy Wit It” by Will Smith
• “Cowboys” by the Fugees
• “Brooklyn Girls” by Charles Hamilton
• “Lost In The World” by Kanye West

People love to shout out the chant during live performances, too, everyone from Zap Mama to Jamie Foxx. Rihanna goes further than quoting MJ’s chant; she builds an entire dance track around a reharmonized sample of it. MJ’s song is in the key of E, but Rihanna’s producers put it in the key of F# minor. This is hip stuff; the same notes in MJ’s sunny and uplifting coda become melancholy in Rihanna’s track.

People quote other parts of “Wanna Be Startin’ Something” too. Big Daddy Kane quotes the “Yeah yeah” part in “Warm It Up Kane,” listen at 1:32.

Other tracks quoting this phrase include “Vibin’ (The New Flava Remix)” by Boyz II Men and Busta Rhymes featuring Treach, Craig Mack and Method Man, and “Feels So Good” by Mase.

Lord Tariq and Peter Gunz adapt big swaths of MJ’s song in “Startin’ Something.”

Björk has to be different, of course, so she (mis)quotes the opening line of MJ’s song in live versions of “I Go Humble.” And by the way, her MJ fandom was apparently reciprocal, if this radio show transcript is to be believed.

Visualizing the Makossa diaspora

Here’s a complete map of the genealogy of the Makossa chant; click to enlarge.

Putting it all together

Here’s a mashup I made combining several of the tracks mentioned above so you can get your makossa on.

Wanna Be Startin’ Something megamix by ethanhein

Any noteworthy sightings of the Makossa meme that I missed? Let me know in the comments.

Hat tip to Mike Devlin for coining the phrase “Makossa diaspora.”

While Girl Talk tracks have way too much information in them for my tastes, I could easily imagine having a rich musical life just unpacking their possibilities. Pop-oriented hip-hop over thrash metal! Gangsta rap over buttery piano ballads! Mixing prog and teeny bopper pop and classic rock! Teasing out the ideas suggested in these pairings could launch a thousand bands. In my own life as a musician, mashups have been the richest source of inspiration imaginable. Girl Talk lights the way with his fearless transgression of all boundaries of taste and style and copyright; it’s up to older and mellower musicians like me to pick up all the loose and tangled threads and knit them into something a little more coherent and structured.

Mashups by ethanhein

Why do some people like Girl Talk?

Let’s say one of the umpteen copyright holders sampled by Girl Talk decides to go after him. Greg Gillis is white, nerdy and well-educated. He’s a generally sympathetic, press-friendly defendant with a rabid online following. If the copyright holder wins, the internet will rise up as one in protest, resulting in a public relations disaster that’ll cost way more than any amount of money that could conceivably be wrung out of Gillis. If the hypothetical copyright holder loses, it opens the floodgates to unlicensed sampling under Fair Use, which right now has tenuous status at best as a legal argument. Rights holders prefer the status quo, where the law is murky and everyone is so nervous that they mostly license their samples. Girl Talk might be popular, but until unlicensed mashups dominate the pop charts, the music industry will probably just keep ignoring them.

I should add that Schwimmer himself owns and loves all of Girl Talk’s albums. I think Gillis is pretty safe.

Original question on Quora

Here’s “Amen, Brother.” The famous drum break comes at 1:27.

“Amen, Brother” is an uptempo adaptation of “Amen” by Jester Hairston, written for the movie Lilies of the Field, and made famous by The Impressions (with Curtis Mayfield, before he went solo.)

“Amen, Brother” didn’t get much attention until crate-digging hip-hop producers started sampling the drum break in the 1980s. Breakbeat Lenny included it in the first volume of Ultimate Breaks and Beats. Since then, the 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 shows up in rock and pop songs ranging from Oasis to Nine Inch Nails. It’s in TV theme songs and commercials. Casual music listeners have probably heard it in dozens if not hundreds of recordings. Here’s a family tree showing the most noteworthy usages.

As is so often the case in sample history, GC Coleman never got a dime from any of these uses beyond his union scale for the original recording session. He died in 2006, so there’s not much we can do for him now, but I think he at least deserves some recognition.

Inside the break

Here’s the Amen break, looped four times:

Amen break by ethanhein

Wikipedia has handy drum notation and drum machine tablature for the break.

Here’s how the break looks in the sampling program Recycle:

Each blue spiky blob is a drum hit. The vertical lines are slices I added using Recycle. Once you’ve sliced up the loop, you can play the slices back in any order and any combination using a MIDI keyboard or drum pads. You can generate an infinite variety of new loops this way.

Two documentaries on the Amen break

The usual reference for the Amen break is this twenty-minute video by Nate Harrison.

Here’s an hour-long podcast on the break by Crissy Criss:

Noteworthy Amen break samples

I’m not attempting anything resembling completeness here; these are just tracks I like or find interesting. Starting in the eighties with the old skool, here’s “King Of The Beats” by Mantronix.

In “I Desire,” Salt N Pepa mixes the Amen with drums from Aerosmith’s “Walk This Way” and the synth line from “Daisy Lady” by 7th Wonder.

Maybe the best-known hip-hop usage of the Amen is NWA’s “Straight Outta Compton” (very, very NSFW.)

The break appears in pitched-down form at the very beginning of “Informer” by Snow. What the heck is he saying in the chorus, anyway?

As I said above, the Amen is most closely associated with drum ‘n’ bass, for example “The Angels Fell” by Dillinja.

Luke Vibert did an album under the pseudonym Amen Andrews where just about every song uses a variation on the Amen break.

An artsier take on the Amen: “Girl/Boy” by Aphex Twin.

Even artsier: Amon Tobin’s “Nightlife.”

David Bowie uses the Amen for his foray into the world of drum ‘n’ bass, “Little Wonder.” It’s not one of his strongest tunes but he gets huge points for trying.

The most current hip-hop song I could find that uses the Amen is Lupe Fiasco’s “Streets On Fire.”

Many, many more examples can be found on the Amen Break Database and Whosampled.com.

The Amen break on TV

As the Nate Harrison documentary points out, the Amen pops up in quite a few TV commercials. It’s made its way into some theme songs, too, most notably the one from Futurama:

The Amen also shows up in the Powerpuff Girls theme song.

Do you still think that sampling is stealing? I don’t mean monetarily, I mean artistically. Do you think that there’s something unoriginal in all these uses of the Amen break? Do you think that the way Aphex Twin or Lupe Fiasco recontextualizes the break is somehow a lesser creative act than getting out a drum kit and playing something? You can probably guess where I stand.

Why is the Amen break so magical?

Producers talk about how funky and passionate the Amen is, how compressed and dirty the drum sounds are, how much hip syncopation it uses in its second half. But what if there’s a mathematical explanation for the break’s popularity? Michael Schneider has a theory that the Amen Break sounds so good because it’s structured around the golden ratio.

Is there anything to this theory? You be the judge.

Try it yourself

Here’s my mashup of many of the above tracks, with heavy processing of the Amen break in Recycle and Reason.

Amen Brother megamix by ethanhein

If you want to play too, the internet is full of resequenced and reshuffled variations on the Amen break available for your downloading pleasure. Here are a hundred fifty Amen loops. Here’s another forty and yet another twenty. Stick them in your favorite audio editor and have fun!

I learned the answer from Creative License: The Law And Culture Of Digital Sampling by Kembrew McLeod and Peter DiCola. It’s a companion book to the invaluable documentary Copyright Criminals. The story of Jay-Z and Alan Lomax isn’t quite as epic a copyright fail as the Biz Markie lawsuit or the story of “Bitter Sweet Symphony” but it’s still pretty absurd.

So here’s Jay-Z’s “Takeover.” As you might expect, it contains salty language.

For my tastes, “Takeover” isn’t one of the better Jay-Z songs, since all it does is make fun of Nas. It’s depressing when an artist of Jay’s caliber devotes his  considerable creativity to a diss track. Still, the production is pretty powerful. The main samples come from the Doors’ “Five To One.” Jay also quotes David Bowie’s “Fame,” along with various other rap songs. Finally, the sampled line “Watch out, we run New York!” comes from “Sound Of Da Police” by KRS-One.

KRS-One samples a riff from “Inside Looking Out” by Grand Funk Railroad — listen at 6:28.

Grand Funk didn’t write the song. It’s a cover of The Animals.

The Animals didn’t really write the song either. As was a common practice among their British rock peers at the time, they took a folk melody and wrote somewhat different lyrics. The tune they used is called “Rosie,” which they learned from a recording made by Alan Lomax of a chain gang at Parchman Farm.

“Rosie” can’t be said to have any particular author. But Lomax was the first person to record and publish it, so according to the peculiar norms of America’s property laws, he was able to copyright it. Not only does Lomax hold the copyright for “Rosie,” he’s also listed as a co-author of both versions of “Inside Looking Out.”

Here’s where the story gets truly silly. When KRS-One sampled Grand Funk Railroad’s cover of “Inside Looking Out,” he needed the permission of both the owner of the recording and the underlying composition. This is in spite of the fact that the sample is from an instrumental section that Grand Funk added, and that doesn’t reference the original melody at all. And even though Jay-Z sampled KRS-One’s unaccompanied vocal, he also needed to get copyright permission from everyone sampled in KRS-One’s track. Including Alan Lomax.

So that’s how a folk song collector wound up as the legal co-author of a Jay-Z diss track. I can’t think of a better illustration of the copyright system’s dysfunction than that.

The copyright maze is no obstacle to Jay-Z — he has the money, lawyers and connections to clear whatever he wants. But what about up-and-coming or unheard-of artists? What if they want to use samples? Should the most vital art form of our time be the exclusive province of forty-year-old multimillionaires? And grateful as I am to Alan Lomax for recording and disseminating so much great folk music, I remain baffled as to why he was allowed to copyright it. Our creative heritage deserves better stewardship than our current laws provide.

Update: I seem to have touched a nerve with this post. Jesse Walker posted it on the Reason Magazine blog, and since then it’s also been on Andrew Sullivan’s blog, Metafilter and Techdirt. There are some interesting discussions happening in the comments to those posts. Thanks for linking, everybody!

After Techcrunch published the slide, the web lit up with the rumor that Delicious would be shut down. It took Yahoo a full twenty-four hours to respond, an eternity in internet time, and when their official statement did finally come, it didn’t exactly put anyone’s mind at ease. They’re keeping Delicious live for the time being, but they plan to… do what? Sell it? The language is vague.

I’ve loved Delicious since I started using it — here’s my full-length rhapsody on why it’s so valuable to me. Watching Yahoo neglect it has been painful, since there’s a lot of untapped potential. For example, two months before Twitter launched, Delicious rolled its Network feature, which lets you subscribe to other users’ bookmarks. It’s basically a more tightly curated and better annotated version of Twitter. I started going back through my bookmarks to see who else was saving them and following everyone who was coming up with interesting tags and notes. The result is my list of a hundred or so Delicious users who consistently post interesting, useful and entertaining links. I look at my Delicious network feed first thing in the morning, before any news site, or Twitter or anything, because its signal to noise ratio is superb. Yahoo had an opportunity to create a robust social network around the Network feature, and they blew it.

If you’ve invested a lot of effort in curating your Delicious bookmarks, at least you don’t have to worry about losing them. It’s easy to download a backup of them and there are plenty of other services you can upload them to. But having Delicious shut down or just atrophy would be a huge loss because of the accumulated mass of everyone else’s curated bookmarks. Yahoo lets you grab your own data but not everyone else’s, and everyone else’s data is what gives Delicious its value. ReadWriteWeb compares Yahoo’s data policy to “setting a museum on fire.”

Where else are you going to find a reading list of the best collected written works and other multimedia about almost any given topic? Unfortunately, automated extraction is blocked by the site and the rickety, antiquated API appears focused on returning you little more than your own bookmarks. If there’s a clear way to accomplish export of not just my bookmarks, but all bookmarks with one or more tags, from all users – I haven’t been able to find it yet.Yahoo blocks all automated extraction of data from Delicious. The company apparently is going to let this unique cross between a museum, a library and a crazy old collector’s attic burn to the ground. I’d like to take a few things with me before that happens, please. One community of non-profit technologists has been bookmarking links with the tag “NPTech” for years – they have 24,028 links categorized as relevant for organizations seeking to change the world and peoples’ lives using technology. Wouldn’t it be good to have that body of data, metadata and curated resources available elsewhere once Delicious is gone?

What someone probably ought to do, as Karl Long said to me on Twitter today, is scrape all the public bookmarks and data and put it on Bittorrent. That would be against the rules, though.

Please, please Yahoo! let us save some of what you’ve got, before it goes to waste.

I’ve heard the argument that we’ve been using Delicious for free all these years, so why should we feel entitled to anything? I for one would have appreciated the opportunity to pay for it. I quite happily pay for Flickr, I pay for web hosting, I’d pay for Twitter too. Yahoo never even attempted to monetize Delicious, aside from a little advertising on the popular bookmarks page, which I don’t think I’ve ever used. Yahoo’s focus on the popular bookmarks page misses the point. I don’t care what everyone has been bookmarking. I care what specific smart people who I trust are bookmarking. Mass trends are occasionally interesting, but only occasionally.

With the future of Delicious still in doubt, I followed the example of a bunch of geeks I trust and joined Pinboard. I’m using it to mirror my Delicious bookmarks, and if worse comes to worse, I’ll just move over there completely. There’s much to like about Pinboard. It’s not free, which inspires confidence in me that it won’t just vanish. I like its zany pricing scheme, where they charge a tenth of a cent times the current number of users. (I paid $7.65.) I can also set Pinboard to archive all my tweets if I want, though I haven’t taken them up on this because my tweets aren’t that interesting to me. If I have a profound thought I’ll put it on this blog.

So far, Pinboard seems fine and dandy for my own bookmarks, but it’s missing the social component. Delicious has over five million users, Pinboard (as of this writing) has nine thousand. Those nine thousand are mostly power users, but even so, that’s not the glorious emergent hive-mind that Delicious offers. If my entire network were to migrate over en masse, I guess it wouldn’t be such a big loss, but so far I don’t see that happening.

So what’s to become of my favorite thing on the social web? Former Delicious engineer Stephen Hood runs through the most plausible options on his blog:

Selling Delicious to a third-party

is not a straightforward proposition. As mentioned above, most of the team is now gone. Last week’s leak (and the subsequent fallout) also did unfortunate damage to the Delicious brand, sending panicked users to competing products.

But ultimately the real challenge here will be the technology. During my time at Delicious we rebuilt the entire infrastructure to deeply leverage a number of internal Yahoo technologies. It’s all great stuff but not exactly easy to remove or replace.  Yahoo may have to license some of this technology to the buyer. I’m not sure they’ve done that before.

Open sourcing Delicious

This is a seductive concept but doesn’t make much sense.  As in the case of a sale, they would need to unwind a bunch of proprietary technologies before this could happen.  And open sourcing a complex product isn’t as simple as switching your GitHub repository from private to public.  It involves a lot of work to clean up and document the source.  For Delicious this would add up to a huge effort that would be hard to justify purely on a financial basis. Even then, it’s not clear how an open source social bookmarking system would work, given that much of its value comes from being centralized.

Donating Delicious to the Library of Congress or the Smithsonian

Now we’re getting closer.  While it is folly to assume either of these institutions could take over Delicious and keep it running as a viable service, it does seem like they would be interested in preserving the Delicious corpus and making it available for research.

I love Delicious for many reasons, but chief among them is that it is the Internet’s memory storage device.  In the 7+ years of its existence it has recorded the collective online journeys of millions of users during a time when the Web was evolving dramatically.  Those memories are irreplaceable and have enormous value both to their owners (the users) and to society.

For now, I continue to post to Delicious, mirror in Pinboard, watch and wait. Whoever winds up owning Delicious, I hope they value it properly and show it some love.

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.)

Many mash-up artists seem unaware that their work implicates any rights at all, and copyright owners may be reluctant to alienate fans with copyright restrictions. Artists such as Girl Talk remain outspoken against copyright restrictions on mash-up culture. Individual copyright owners, such as the owners of Star Wars, have adopted terms of use for mash-ups.

Is fan and other mash-up activity important to enrich our culture? Are existing allowances for fair use adequate? Should mash-up artists and fan fiction publishers have any right (legal or moral) to complain when others copy and redistribute their work? What is a copyright owner or licensee to do when it has contractual obligations to third parties in connection with their contributions? How should these issues be resolved?

The panelists: Professor Sonia Katyal of Fordham Law School, Professor Shaka McGlotten of Purchase College, Martin Schwimmer (Partner, Moses & Singer), and me! The moderator is Jay Kogan (DC Comics and MAD Magazine).

February 24th, 2010
12:00 p.m.-12:30 p.m.: Cocktails (cash bar)
12:30 p.m.-1:00 p.m.: Lunch
1:00 p.m.-2:00 p.m.: Program
The Princeton Club, 15 West 43rd Street, New York, NY
Cost: $65.00 (members) $75.00 (non-members)

SPEAKERS (besides me):
SONIA KATYAL is a Professor of Intellectual Property, Property and Civil Rights Law at Fordham Law School. Her work focuses on intellectual property, civil rights, and new media, with a special focus on art and freedom of expression. Katyal was awarded a grant from the Warhol Foundation for her book, Contrabrand, which studies the relationship between art, advertising and intellectual property. Her new book, Property Outlaws, (co-authored with Eduardo M. Penalver), which studies the role of civil disobedience in property and technology, was just published from Yale University Press, and her work on fan fiction focuses on how copyright affects the representation of gender and sexuality. Her scholarly work has appeared in prominent legal publications, including the Texas Law Review, the University of Pennsylvania Law Review, the UCLA Law Review, and the Yale Law Journal. She received her A.B. from Brown University and her J.D. from the University of Chicago Law School.

SHAKA MCGLOTTEN is an Assistant Professor of Media, Society, and the Arts at Purchase College, where he teaches courses on media, ethnography, and digital culture. His research focuses on the intersections of media technologies with categories of gender, sexuality, and race in particular. He also works in what might be broadly called “affect studies,” or the study of the ways feelings are central to our individually lived and shared social experiences. He is currently at work on a manuscript that explores these themes. “Virtual Intimacies: Media Cultures and Queer Sociality” examines a range of media sites DIY porn, online gaming, gay chatrooms to examine the mutual intensification between digital media culture and the creativity of queer sociality.

MARTIN SCHWIMMER is a partner in the New York law firm of Moses & Singer, practicing trademark and copyright law. He publishes The Trademark Blog, the nation’s oldest blog devoted to IP law. He is a fan of the Mets, the Jets, Arsenal, Lost, Fringe and Arrested Development. He has all of Girltalk’s albums.

MODERATOR:
JAY KOGAN is Vice President Business & Legal Affairs and Deputy General Counsel for “DC Comics” and “MAD Magazine”, where he serves as the companies chief intellectual property counsel. Jay is also an adjunct professor at New York Law School, where he teaches Intellectual Property Licensing and Drafting. Jay received his J.D. and Masters Degree in Mass Media in a dual degree program at Boston University School of Law and his Bachelor of Arts from the University of Connecticut.

Sponsored by the Copyright Society Of America

Sampling lets you actively engage your record collection, iTunes library, etc

The vast majority of my musical experience has been through listening to recordings, and the same is true of everyone I know. The real pleasure of music is participation, and historically recorded music hasn’t been participation-friendly. It was a humongous deal for me to discover that I can interact with my record collection beyond deciding which song to listen to when.

Sampling has some of the same satisfaction of learning how to sing songs I like, or how to play them on the guitar. As with learning songs the old-fashioned way, sampling lets me remake recordings to my own tastes. I’ve learned through extensive experimentation that what I really like is to hear the song’s major hooks repeated in groups of eight at a medium slow tempo over an 808 drum machine playing a hip-hop beat. Sampling helped me discover that, and it’s transformed my approach to my own compositions too.

Expediency leads to spontaneity

I know a lot of drummers. Some of them are world-class musicians. But they aren’t usually available to me. If I just want to try out ideas over a certain beat, the logistics are a big problem. I don’t have a drum kit in my apartment, and if I did, it would drive my neighbors crazy. Even if that weren’t a problem, I don’t have the right mics or acoustic environment to do a decent recording of live drums. Meanwhile, I have a hard drive full of the best drummers in recorded history 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 — any of those things can inspire new work. The effortlessness and immediacy of sampling creates such a wealth of possibility that the challenge becomes choosing from among all the new ideas. This is a much nicer problem than sitting there thinking, “I wonder what Duke Ellington’s brass section would sound like over this part? I guess I’ll never know.”

People get bored, computers don’t

A great way to write songs is to set up the basic groove on a loop and then let it play continuously for a few hours while you hang out, eat lunch, fold your laundry or play video games. The best creative work is done by your unconscious mind, and your unconscious mind likes to work while your conscious mind is busy doing something relatively uninteresting. This reality is an awkward fit with the reality of collaborating with other humans. Even if I could have a band at my beck and call, it would be completely wrong to ask them to loop a phrase identically for hours while I hung out eating oranges and reading my email. Fortunately, the computer has no objection to this way of working.

Freedom from permission

I don’t just mean legal permission, though that’s a thorny set of challenges in and of itself. For a lot of would-be samplers, the major obstacle is a sense of moral guilt. Many of us feel guilty “stealing” someone else’s idea. I resisted sampling for years out of guilt.

It’s strange to have so much power over sound. If I want a human to play the Funky Drummer beat exactly at a certain tempo for a certain length of time, I need to convince them to do it. If I just want to loop the Funky Drummer beat in Recycle, the computer is always happy to oblige me.

Should sampling make me feel guilty?

What do I owe another musician by sampling them? Let’s assume I’m not making any money off my work, just giving away copies to my friends. Is it cool if I do this without the original performers’ consent? There would be no hip-hop or electronica at all if everyone was “properly” hesitant to use unauthorized samples. I do try to get permission when it’s reasonably possible. Many of my musician friends have volunteered the use of samples of themselves with the understanding that if I ever make money from something, they get a cut. Meanwhile, if it’s just for experimentation or teaching, I’m free to use the samples as I wish. In a perfect world, this is the relationship I’d have with every recording artist.

Some copyright holders are only too happy to license samples, it can be a great source of income. But some musicians don’t like having their ideas altered and manipulated beyond the bounds of their personal taste, no matter how money it might make them. The Beatles, for instance, have never cleared a sample and are unlikely to change their minds. Meanwhile, if I’m sitting alone in front of my computer and I find a little slice of Beatles music that sounds great as a loop, Paul McCartney and his lawyers are nowhere in sight. It’s nearly impossible to resist the pleasure of sampling all that incredible music, and with a few pieces of software and some free time, anyone can do it. I respect Paul McCartney’s body of work like few others, and I consider it the sincerest form of flattery to sample from him. It’s too bad Paul McCartney doesn’t see it that way.

Samples have their own sonic and musical quality

Even if I could conjure any combination of musicians and instruments at will and had round the clock access to a flawless recording environment, I’d still want to be able to use samples. There’s a difference between a person playing a particular phrase repeatedly and the playback of a recorded loop. Even if a musician wanted to play a loop the way a sampler does, people can’t help but introduce slight variations of attack, subtle tempo changes, and all the other little nuances of live performance. In some styles of music, constant nuance and variation is a good thing. But sometimes you want the hypnotic, trance-like effect you get from identical looping. Electronica and hip-hop derive a lot of attention-grabbing power from the startling gap in a looped pattern, and the satisfaction when the loop returns right on time.

It isn’t just the musical content of the sample that creates its personality. It’s the recording itself, the particular interaction of the microphone and preamp and mixing desk and tape or digital medium. The magic of the Funky Drummer loop isn’t just in its beat — it’s the tape hiss, the equalization, the compression and reverb. A drummer might be able to recreate the musical performance, but not the exact sound.

In addition to their intrinsic sonic qualities, samples can be sonically manipulated in ways that live instruments can’t. I can instantly alter the pitch of a sample, stretch it out, filter sweep it, or rearrange its components in a different order. For maximum gratification, I love to hear live musicians and looped samples combined together.

Hearing a familiar sound in an unfamiliar context is exciting

Some of the coolest songs repurpose recognizable hooks, or even entire choruses, in new contexts. This technique is a foundation of hip-hop songwriting. Here are two examples that I like.

Janet Jackson ft Joni Mitchell – “Got ‘Til It’s Gone”

SWV ft Michael Jackson – “Right Here”

Shared ideas create community

By sampling Joni Mitchell, Janet Jackson invites all the Joni Mitchell fans into the room (and invites herself into consideration by Joni Mitchell fans.) When SWV samples Michael Jackson, they shine some of that Michael Jackson energy through themselves and out on us.

Individual ownership of music is a historical aberration

Ownership of ideas is a recent historical phenomenon, preceded by uncountable centuries of oral tradition in the public domain. Other world cultures don’t necessarily share our preoccupation with ownership. Even in capitalist America, we default to oral tradition in our daily lives. We have an intuition that you’re supposed to share music you like with people you like. It’s one of the basic ways we establish social bonds with each other. This custom isn’t going anywhere, no matter what copyright law might say. Sampling lets you share recordings you love, placed into new contexts, making new statements, while still connecting back to the past. This is a powerful emotional tool, and using it becomes irresistible once you get a taste of using it.

Sampling undermines our magical thinking about originality

It’s been my experience that there are no truly original ideas, only remixes and mashups of existing ideas. The completely original song is a legal fiction. It’s a useful fiction for managing intellectual property, but it’s problematic when it comes up against the collage-like nature of actually composing and improvising. The belief that new ideas spring magically into being from the ether reminds me of the once widely-held belief in the spontaneous supernatural generation of life. Now we know that all life on Earth evolved from previous life. Our ideas evolve according to the same Darwinian dynamics as the brains that produce and host them.

Sampling makes for a healthy intellectual culture

New ideas are always inspired by repurposing existing ideas. Copyright is supposed to motivate new ideas, but, as it’s presently enforced, it can have the opposite effect. When Disney transforms public-domain works into exclusive properties, that jams up the flow of ideas that made their wealth possible in the first place. There needs to be a free flow of ideas if ideas are going to keep evolving.

If sampling is so great, how is everybody supposed to get paid?

Our current copyright model emerged in the era of expensive printing presses, record pressing plants and so on. If a book was the only way to get access to the thoughts in the book, and the vinyl record was the only way to get access to the sounds on the record, it made to treat copies as valuable properties in and of themselves. In the computer era, copying is so routine and effortless that it’s impossible to meaningfully regulate it. You copy files every time you load a program from your hard drive.

Good ideas may still be scarce, but digital copies of them aren’t and probably never will be again. There has yet to be a copy protection scheme for digital media that couldn’t be cracked by any reasonably bright thirteen-year-old. In an interview with The Guardian, Brian Eno says:

I think records were just a little bubble through time and those who made a living from them for a while were lucky. There is no reason why anyone should have made so much money from selling records except that everything was right for this period of time. I always knew it would run out sooner or later. It couldn’t last, and now it’s running out. I don’t particularly care that it is and like the way things are going. The record age was just a blip. It was a bit like if you had a source of whale blubber in the 1840s and it could be used as fuel. Before gas came along, if you traded in whale blubber, you were the richest man on Earth. Then gas came along and you’d be stuck with your whale blubber. Sorry mate — history’s moving along. Recorded music equals whale blubber. Eventually, something else will replace it.

What is this something else? Live performance? I use a laptop and samples for that too.

So how should the creators of my samples get paid? How should they get paid for any of the copying that goes into remixed and mashed up works? How do artists get paid for any kind of idea that can be rendered digitally if copying is so easy?

The question of how to make people pay for digital copies voluntarily haunts every creative professional. Sci-fi author Charles Stross lays out the problems in an articulate blog post here. The comments are full of intriguing suggestions that have some applicability to music.

I’m attracted to a model where we pay creators up front using the Kickstarter method or something like it, and having the copies just disseminate like dandelion seeds to raise interest in the next project. Giving away hours of stuff on the internet has made a lot of money for artists as diverse as the Grateful Dead and Lil Wayne. The fans want to show love to the artists. Maybe more musicians will just start asking the fans to donate directly via their web sites.

For most of human history, music was supported by the same invisible gift economy as any kind of mundane daily practice, like recipes or childcare routines or methods for opening coconuts. I’d like to see the gift economy make a comeback in music. Musicians are like religious leaders. Maybe the funding model should be more like church, where the fans view paying for music as a tithe. I’m a perfect customer for this kind of model. I’ve been looking to music for deeper meaning since I was a kid. I fill it with the reverent belief that I might have put into the spiritual world if I were inclined that way.

If I’m going to invest faith in my music, I need to know it’s on the up and up. It’s like when you meet a person, you want to know their connections, their family and friends. Knowing the connections creates trust. I want and am willing to pay for richer metadata along with my music files. I want context and background. My wish is for more liberalized sampling that comes with an ethic of explicit attribution. I buy music based on the basis of its being sampled in hip-hop or R&B songs all the time. I bought “Are You My Woman (Tell Me So)” by the Chi-Lites when I found out that it was sampled in Beyonce’s “Crazy in Love.” I’d happily open my wallet for more access to a song’s guts. I want remix-friendly stems and karaoke versions. I want super-detailed liner notes that show me the whole musical supply chain. If I pay for “Wanna Be Startin’ Something” by Michael Jackson, I want to be shown a link to “Soul Makossa” by Manu Dibango. From there I’d like some context on makossa as a musical and dance form. I want seamless integration with Allmusic and Wikipedia and Amazon reviews and Whosampled and Youtube.

I want sampling to be legally easier because it would make music more participatory, and thus more fun and interesting

If I really like a song, I want a playable Rock Band or DJ Hero version. I want interactive MIDI lead sheets with the chords, the melody and the rhythms. I want the lyrics annotated so I can click through to see explanations of slang or literary allusions. I want to see production details: who played or programmed what parts, what gear they used, what software, what plugins. I want to be able to hear the tracks one at a time and remix them or mash them up with other stuff I like. It seems like all this should be possible in the age of digital music.

Making your own music is good and good for you

It’s been pointed out to me that if anybody can remix anything, it’ll result in a flood of crappy remixes. This is true. It’s also good and necessary. Amateur participation is about process, not product. The singing in most church choirs is pretty bad. Most amateur bands are pretty lame. It’s still fun and healthy to participate in church choirs and amateur bands. It’s good for you to play basketball whether you play like Michael Jordan or like me (badly.) It’s good to cook your own meals, even if you’re no Julia Child. And it’s good to make your own music.

We still need the masters to light the way, to discover best practices and teach them to the rest of us. But leaving the whole process to the masters cheats us all out of an essential social and emotional vitamin. If sampling is what’s giving the most joy out of the tools we have at our disposal, then people are going to keep doing it. I hope we can all work out a better deal with each other over the permissions and attributions.

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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.