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It’s Time to Legalize Sampling

Taken from | Author: Dan Charnas | Date: 3 March 2023

Hip-hop is 50 years old, but the genius idea at its core remains unprotected. Here’s how we can change that.

This week marks the release, at long last, of De La Soul’s 1989 debut album 3 Feet High and Rising on music streaming services, along with most of their vital early catalog. It is, for fans of a certain generation, a bittersweet moment, coming as it does on a wave of grief over last month’s sudden death of member Dave “Trugoy” Jolicoeur. It’s hard to overstate the importance of 3 Feet High and Rising as an inflection point in the growth of hip-hop. The group’s eccentric, bohemian aesthetic was a big reason that the genre’s cultural tent expanded over the years, allowing more people to find their place within it. Crucially, the album’s sound, sculpted largely by their producer Prince Paul, changed our expectations about what music itself could be: 24 riotous tracks—well-crafted songs interspersed with anarchic skits—made from hundreds of digital samples of sound from existing records. It was a “create first and ask permission later” kind of affair, as much of early hip-hop was.

Because so many of those tiny digital samples had never been cleared with their original owners—either for digital distribution or for use of any kind—this foundational LP had never been available on apps like Spotify and Apple Music, rendering De La Soul’s oeuvre virtually invisible to later generations of listeners. Fans and industry insiders understood that the decadeslong delay had mostly to do with a dispute between the band and their former label, Tommy Boy Records, about who would pay for all those uncleared samples. And while a recent deal with Reservoir Media resolved the financial issues, as part of this relaunch, a number of songs had to be rerecorded without the very samples that made this sonic treasure hunt so beguiling, because the original owners couldn’t or wouldn’t clear them.

While De La’s absence has been a musical deprivation, their return is marked by a more insidious cultural crime: the adulteration of a landmark work of sonic pastiche. It’s part of a larger injustice we’ve been tolerating for decades. Hip-hop turns 50 this year. Institutions that once ignored the genre are getting in on the celebration: The Grammy Awards tapped Questlove to put together a grand musical reconstruction of the genre’s history, the Museum at the Fashion Institute of Technology is showing a retrospective on 50 years of hip-hop style, and major production houses have filmed a slate of documentaries. But the way hip-hop makes music remains completely unprotected by law. Over the past four decades, even as hip-hop’s method of sonic collage became a basic mode of music making across genres, the legal conception of what music is, and what constitutes authorship, remains rooted in our pre-digital past. As we move into the second half of the hip-hop century, it’s high time to change that. And there is a way to do it, if we have the will.

The idea of legally recycling musical ideas has solid precedents. Songs are written, and once performed by a recording artist, remade by countless others. This process is completely legal, enshrined into U.S. law by what’s called a compulsory license: If you are the songwriter, you do not have the right to prevent anyone from rerecording your song, but if you are the recording artist, you must pay the songwriter an amount mandated by law. The arrangement strikes a balance between ownership and public good, creating a marketplace that rewards innovation but doesn’t allow creators to lock up their creations so no one else can build on those ideas without risking infringement. True, a songwriter might not like how a number of artists might interpret their musical ideas, but they get paid nonetheless. This compromise is integral to the way our democracy views the boundaries of so-called intellectual property.

Yet there has never been a compulsory license for borrowing parts of songs, nor for pieces, or “samples,” of the recordings of those songs. There are some respectable arguments for the status quo, many of them centred around droit moral, a legal concept derived from a French term referring to an artist’s “moral right” to keep others from altering or using their creative ideas in ways that they find creatively or morally wrong. Artists’ rights have been subject to all kinds of violation in our cultural marketplace, so it’s understandable that we conceive of those rights in economic terms: the ability to own or control the trade in their ideas, and to be compensated for them. But that is not the only right that is at risk when we create and apply laws about art and ownership. Another liberty, the most basic one, has also been suppressed: an artist’s right to create art in the first place.

The concept of idea ownership—determinations about what kinds of ideas can and cannot be owned, and when one creative idea lapses into copying—remains capricious. Our popular music is filled with all kinds of copying that’s seen as fair use. Countless blues, jazz, R&B, country, and rock songs use the same melodies and rhythms. We don’t care that “La Bamba” and “Twist and Shout” share the same guitar melody any more than we care that “Don’t Stop Believin’,” “Let It Be,” and dozens of other classic pop songs share the same basic chord progressions. Parody songs, too, were deemed fair use in a case decided by the Supreme Court in 1994. But there have also been some more restrictive rulings, like the infamous “Blurred Lines” case, in which a jury determined that one song infringed on another without the two sharing any melody, harmony, or lyrics, but rather a vague rhythmic “feel.”

The recycling of sound, on the other hand, has with only rare exception been impugned as intellectual larceny. “Thou shalt not steal” was the lead sentence of federal Judge Kevin Duffy’s 1991 opinion on the first hip-hop sampling case that actually went to court. With sampling rhetorically and judicially equated with theft, the only legal way to compose with samples was to engage in a tortured clearance process, in which the owners of recordings and songs can charge any price they want for a sample of a recording or an interpolation of a song, deny songwriting credit to the collage composers, or refuse to license their music entirely. Any sound left uncleared, no matter how brief, can legally be subject to an infringement claim—and that’s true even with some of the most creative forms of sampling, new songs that sound nothing like the old songs from which they are made and don’t interfere with their marketability, a key concept in plagiarism law. In the case of 3 Feet High and Rising, many of the major samples were cleared with the owners, like Hall & Oates and Steely Dan, but the smaller ones in the interstitial “skits” were not. One sample of the Turtles’ “You Showed Me”—decelerated to a dirgelike tempo and paired with some audio from a French language course—provoked a claim in 1990 from the band and its label, and was said to be settled with a payment of $1.7 million.

The terrain of record sampling and song interpolation has thereafter been a feast for the lawyers, as any legal gray area tends to be. Its nebulous borders, its oases and hazards, are mapped on a loose fabric of different and sometimes conflicting legal precedents, and by the U.S. Copyright Office’s compendium of common practices. The landscape is far too precarious for creators, and so we need two things: a clearer, broader conception of fair use and, for everything else, an expanded compulsory license law, which would ideally clear up that gray area, creating rules for engagement that avoid legal wrangling, ensuring owners’ rights and income without stifling new creativity.

A few details would have to be decided: Is there a length of sample that’s too brief to license, like a drum hit? A length that’s too long? Could musicians, like drummers, who received no songwriting credit nor an ownership stake in the original recordings, finally get some? In the age of Shazam, when anyone has the power to detect the digital fingerprint of sound, we certainly possess the technological means to untangle any composition. And speaking of technology, the arrival of music made with generative artificial intelligence could and should also be addressed as part of updated law. One likely scenario: A.I. could make it relatively easy for producers to simulate, say, Mariah Carey singing an album’s worth of their own songs. (If this sounds outlandish, consider that David Guetta already used A.I. to concoct a guest verse from Eminem for one of his live sets last month.) And this is where we get to the crux of the issue that bedevils the confluence of art and commerce, and muddies the relationship between copying and creativity: The devil is deception, not copying. No one ever bought De La Soul’s record because they thought they were the Turtles, nor were any Turtles (or their business interests) harmed in the making of that album many years ago. Any new law must make a clear distinction between dishonest and honest commerce.

The alternative to action is the chilling effect we are seeing right now, not only on sampling but on song creation itself. Some artists seek permission for the slightest of quotations or interpolations lest they leave themselves open to a claim. Other artists second-guess their work and squelch their impulses lest the natural and organic manifestations of their influences be seen as infringement. As I wrote in my book about J Dilla last year, even that great hip-hop producer—considered by some to be the paragon of sampled music production, and whose drum machine is on display in the Smithsonian—for a time abandoned the artform he mastered because of the legal and financial risks. Meanwhile, parasitic “sample trolls” snap up publishing and recording rights to songs often for the express purpose of suing other artists who have interpolated their music.

Siva Vaidhyanathan, the author of the 2001 book Copyrights and Copywrongs, wrote that there is no such thing as intellectual property, only “intellectual policy.” In an era in which corporations have pushed to expand the duration of ownership and shrink the public domain, and predators claim ownership of concepts that cannot and should not be owned—preventing the kinds of copying that encourage creativity and commerce—Vaidhyanathan argued for a “thinner” conception of copyright. The people, he said, decide what intellectual property is and isn’t. The Constitution explicitly gives the people’s Congress the authority to decide what the limits on these rights are.

Of course, we are in a political moment when our democracy itself is at risk, and much of our Congress is beholden to corporate interests. But this has also been a moment in which we’ve been reenvisioning many of our institutions and ending dynamics that we’ve long taken for granted. Imagine, now, a world in which we can reconcile our conception of art so that the artists that we adore aren’t outlaws for making the music we love.

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