Overzealous Copyright Bozos and Other Enemies of Creativity

this is a sampling sport

Tim Quirk’s first unpleasant encounter with copyright law came in the form of a cease-and-desist letter sent by a clown. The word “clown,” by the way, isn’t a mean-spirited jab at greedy lawyers. No, I’m talking about Bozo himself.

Quirk was the lead singer, songwriter, and guitarist for Too Much Joy, a poppy, punky band whose career spanned the 1980s and 1990s. Much to his chagrin, Quirk’s old band is probably better known for getting into trouble than for their sometimes goofy, sometimes sophisticated, and often catchy music. Over the course of a decade, Too Much Joy was arrested for performing obscene 2 Live Crew songs in Broward County, Florida; Quirk was detained by the Secret Service after drunkenly joking onstage about strangling Bill Clinton when Chelsea was in the audience; and they pissed off Bozo the Clown.

In the larger scheme of things, Too Much Joy is just a footnote in pop-music history, and Quirk’s new band, Wonderlick, probably won’t even qualify for that status. I don’t mean this as an insult; on the contrary, not-even-a-footnote is the level at which almost all working musicians live. Comparatively speaking, Quirk has done pretty well for himself. When I first met him during the course of writing this book, he was happily married, the proud father of a nine-year-old daughter, and had somehow spun his love of music into a respectable career in the music industry—in the form of a nine-to-five job at Real Networks, one of the companies to get in early on the legal music-download business. In the time since Quirk first recorded “Clowns,” he has gained some weight and lost a little hair. But even though he’s not quite the same person who rocked the stage ten years ago, he’s still a spry guy.

How exactly does one end up on the wrathful receiving end of one of America’s most beloved (and disturbing) children’s entertainers? The story begins in 1988 with Too Much Joy’s song “Clowns,” a ridiculously hummable slab of power pop that is about, as Quirk puts it, “how parents seem to think clowns are harmless even though all kids know that clowns are weird and evil.”¹ A band member still had a Bozo the Clown LP from childhood, and when the group was in the recording studio, they excerpted a story recited by the happy/evil clown. In a voice that eerily resembled The Simpsons’s Krusty the Clown, Quirk uttered something that can only be taken the wrong way: “I found something in one of my pockets. It was about as big as your shoe,” Bozo declared on the scratchy piece of vinyl, “but it was shaped like a rocket!” This five-second sample served as the intro for “Clowns,” a track off my favorite Too Much Joy album, Son of Sam I Am.

A clown was my boss at every job I ever had.
Clowns run all the record companies that ever said we’re bad.
A clown pretended to be a girl who pretended to be my friend.
This world is run by clowns who can’t wait for it to end.

Unfortunately for the band, Larry Harmon, who played Bozo and who owns the intellectual-property rights to the clown character, keeps track of the Bozo brand. He has a clipping service to monitor when Bozo is mentioned in newspapers. It was through this means that he discovered a review of Son of Sam I Am that described “Clowns,” so Bozo’s lawyers sent a cease-and-desist letter that claimed Too Much Joy’s record infringed on Harmon’s copyright. Above the dense legalese was a maniacal red-and-blue Bozo smiling in the upper right-hand corner. Too Much Joy was selling out and jumping from Alias Records—the independent label that originally released Son of Sam I Am—to Warner Records, one of the industry’s largest major labels (which had recently signed R.E.M.). If Alias had pulled the record off the market because of Bozo’s threats, it would have put this small label out of business, but because Warner paid Alias for the rights to re-release the album, this wasn’t an issue.

The band felt there were bigger principles at stake, but no one had the money to defend themselves against the clown’s copyright lawsuit. Alias agreed on a monetary settlement with Bozo, and Warner re-released the album, without the offending clown sample. In retrospect, the suit may have helped more than hurt, because Too Much Joy received some publicity and “Clowns,” minus the sample, was used as the theme song to the 1992 cult-film classic Shakes the Clown (which was hailed by one reviewer as “the Citizen Kane of alcoholic clown films”). Despite the soothing waters of time, Quirk is still angry about the episode. “The goofiness of this incident obscures an important principle. Copyright can be used to prevent unflattering commentary on copyrighted works,” says Tim, taking the words right out of my mouth. “That has more potential to suppress authors than it does to motivate them.”

OVERZEALOUS COPYRIGHT BOZOS

“The impression I’m left with,” says Quirk about Bozo’s legal threats, “is that Larry Harmon didn’t really care all that much about the sample, and just saw it as a way to make a quick buck.” It may have also been true that Bozo felt he had the “moral right” to control his image. That’s one way of looking at it, Quirk concedes. “But you know what I say to that? Tough shit, you fucking clown. You said it! All we did was remind the world.” He adds, later, while sitting in his brick-walled Real Networks offices, “Just because Bozo had a copyright on that sound recording, copyright isn’t a right to not look like an idiot.” In tribute to Larry Harmon, I’ve coined the phrase “overzealous copyright bozos” to describe the overreaching actions of bullying intellectual-property owners.

Here’s the rub: The original and re-released versions of Son of Sam I Am also sampled tiny fragments from the Clash, the Police, Gang of Four, Lou Reed, and many other artists, all without the band or the label worrying about these uncleared, unlicensed samples. What was a 1980s rock ’n’ roll band doing using all those samples? Well, Quirk explains, it was 1988, “and if you’re a music geek—and anyone in an indie-rock band in 1988 is a music geek— playing spot-that-sample is one of your new favorite pastimes.” Not coincidentally, Too Much Joy was hopelessly addicted to Public Enemy’s brand-new It Takes a Nation of Millions to Hold Us Back.

I myself wasn’t prepared for this aural assault of a record, despite the fact that I was a record-store clerk/dork who had spent a year or two of his life in a supremely wack break-dancing crew of rhythmically challenged adolescents. We called ourselves the Virginia Beach Breakers. There was something in the music of Grandmaster Flash, Kurtis Blow, and the Fat Boys that moved me enough to do backspins on a cardboard box when most of the other neighborhood kids were listening to Van Halen or Duran Duran. This still didn’t prepare me for the release of It Takes a Nation. This sonic space oddity came frontloaded with sirens, squeals, and squawks that augmented the chaotic, collaged backing tracks over which Public Enemy’s Chuck D laid his revolutionary rhymes. He rapped about white supremacy, capitalism, the music industry, black nationalism, pop culture, and—in the case of “Caught, Can I Get a Witness?”—digital sampling. “Caught, now in court ’cause I stole a beat,” Chuck D bragged. “This is a sampling sport.”

“It’s almost like ‘Caught, Can I Get a Witness?’ was a pre-Napster record,” says Public Enemy member Harry Allen, talking with me years later in a friend’s Manhattan apartment. “It’s really speaking to the way the industry handles technological change.” Just as there are now multitudes of panel discussions about digital downloading, which achieve little consensus, Allen vividly remembers that in the late 1980s sampling was the new music-industry boogeyman. “Even more than a prediction or looking forward to the controversies that would bloom around sampling,” says Allen about Chuck D, “it was really more like looking forward to the controversies that would bloom around Napster.”

“The first Public Enemy records are like the blueprint, technique-wise, for what I do,” says Scott Herren, aka Prefuse 73, a key player in today’s thriving underground hip-hop scene. “That was just the most powerful onslaught of sound that had been experienced, and it [was] all coming from, like, machines. When you heard it for the first time, back then, it’s like”—cradling his temples with his finger-tips—“whooooaaaa. It was inconceivable for me. Back then I didn’t make music, and it sounded like science fiction, like, ‘What the fuck?’ ” Mr. Lif—part of the Def Jux family, a popular independent hip-hop label—says that Public Enemy sounded “like they harnessed chaos, but somehow made it palatable.” Nodding his dreadlocked head, he grins and says, “They made chaos delicious.”

I was destined to love Public Enemy’s music because I’m the quintessential Bobo—“Bourgeois Bohemian”—and I loved the poetry fired from these prophets of rage. As did Tim Quirk. “So,” he remembers, “it’s September 1988, and Too Much Joy are recording our second album. Our bass player loves Public Enemy as only a rich suburban white kid who’s just graduated from Yale can, and we’ve been playing It Takes a Nation pretty much nonstop in the van for the last three months....I think we loved that record the same way we’d loved the Clash’s debut—because we were so removed from the social and political concerns that each addressed so aggressively, we could only appreciate that layer intellectually. On a gut level, we responded to both albums as pure music, sonic assaults unlike anything we’d encountered previously.”

They didn’t really have the technical skills or even the knowledge to collage songs from the ground up as hip-hop artists did, but they wanted to honor and pay tribute to sampling. Sometimes their sonic quotations were relevant to the song itself. “In a tune about how the Clash broke our hearts, we drop Mick Jones saying, ‘So hit it’ from ‘Hitsville U.K.,’ ” Quirk says. He mentions how they inserted a sample of Chuck D shouting “BASS!” on It Takes a Nation right before Too Much Joy’s bass player took a solo. “Other times,” Tim explains, “we just liked the way the samples sounded.” The band’s guitar player had been imitating the “Sha Sha!” shout in a Big Country song. “We figure, ‘What the hell?’ and drop in the real thing.”

In 1988 digital sampling was about three or four years young, and there were few legal precedents. It was a sort of Wild West, where there was a creative window that had been forced open by hip-hop artists, a magical time when surprises were abundant on records, the sort of moment that makes the sacrifices of obsessive music fandom worth it. But by the early 1990s, the free experimentation was over. The West was won by copyright lawyers and major labels who realized a whole new revenue stream could be opened up with a copyright-clearance bureaucracy.

You can hear the increasing limitations imposed on mainstream hip-hop stamped on Public Enemy’s music. Between 1988 and 1990, Public Enemy released what are considered to be two of hip-hop’s greatest albums, It Takes a Nation and Fear of a Black Planet. Public Enemy’s production team, the Bomb Squad, took sampling to the level of high art while still keeping intact its populist heart. But by the time the group’s Apocalypse 91 came out, even the casual listener could hear a dramatic change. Gone were the manic collages that distinguished their previous two albums, where they fused dozens of fragments to create a single song. The new sample-licensing rules didn’t differentiate between collaging small sonic chunks and using entire choruses, so by 1991 it became economically prohibitive to release a record such as It Takes a Nation or Fear of a Black Planet.

“That changed how we had to approach music,” Chuck D tells me, “to the point where we couldn’t use fragments in a song. That’s what changed overnight. It would take maybe a hundred different artists to construct a Public Enemy song, though they are all unrecognizable.” Tim Quirk concurs. “You can hear a difference from Fear of a Black Planet to Apocalypse 91,” he says. “To me, it’s the sound of the 1990s. The 1990s is just this big, hollow, empty period, where you are not hearing anything half as shocking, invigorating, creative, wonderful, and inspiring as you were at the end of the 1980s.” By the turn of the decade, everyone had to pay for the sounds that they sampled or risk getting sued. For now, though, let’s take a trip back in the day, before the copyright police came to Dodge.

KILLING THE AUTHOR SOFTLY WITH TWO TURNTABLES

Musical revolutions are often the result of the most mundane circumstances. Sometime in the mid-1970s at a housing project in the Bronx, a teenager was in his room blasting records. As parents are likely to do, his mom banged on his door, telling him to turn his music down. When she walked in, he stopped the record with his fingers, listening partially to what she was telling him while unconsciously moving the record back and forth over the same drumbeat. That teenaged boy morphed into Grand Wizard Theodore. “I wanted to get that same groove I was on,” the veteran DJ explained in the documentary Battle Sounds. “So I was, like, back and forth and I said to myself, ‘Hey, this sounds pretty good!’ Ya know?” Whether this story is a fanciful bit of mythmaking or straight-up fact, it illustrates hip-hop’s haphazard evolution—a series of events built around mistakes that sounded good, and which were further developed.

The DJs who inspired Grand Wizard Theodore—Kool DJ Herc, Afrika Bambaataa, and Grandmaster Flash—often plugged their massive sound systems into street-lamp outlets in local parks. They dug deep into their crates full of records and kept the party rocking till the cops quite literally came a-knocking. The earliest of these DJs to gain popularity was Kool DJ Herc, who had a habit of creating infectiously danceable collages with his two turntables. Herc was from Jamaica, and the music of his birthplace was extremely influential for him, especially the dub reggae records made by producer/engineers King Tubby and Lee “Scratch” Perry. These men turned the recording studio’s mixing desk into a musical instrument. They altered the speed, equalization, and other elements of the recording—also dropping instruments in and out of the mix— to make multiple “versions” of one song.

The existence of these dub versions, British cultural studies scholar Dick Hebdige comments, demonstrates that “no one has the final say. Everybody has a chance to make a contribution. And no one’s version is treated as Holy Writ.”² In Roland Barthes by Roland Barthes, the French philosopher says something similar about his writing and his life: “What I write about myself is never the last word.”³ He means that there’s no way to permanently imprint his intentions in the words he types. Someone can always misinterpret his writing, or they can take a small fragment and put it in a new context—as I have just done with his words. Kool Herc brought from Jamaica the idea that the musicians no longer had the last word in their music, and when he arrived in the early 1970s, disco DJs had independently come to the same sonic conclusions.

With their two turntables and a mixer, early disco DJs stretched tunes from three minutes to twenty, crafting entirely new versions of songs—all without involving the original songwriters and musicians. Disco was primarily a downtown happening, while up in the Bronx hip-hop DJs such as Kool Herc were doing much the same thing in a different style. “I quickly realized that those breakbeats were making the crowd go crazy,” Herc told me, speaking of the catchy and percussive breakdowns that make songs go BOOM. “As long as I kept the beat going with the best parts of those records, everybody would keep dancing, and the culture just evolved from that.” Herc fused together the chunks of songs that were the most popular with dancers, segueing the instrumental and percussion breaks into one long musical collage.

Some of the better known hip-hop breakbeats came from the Incredible Bongo Band’s “Apache,” James Brown’s “Funky Drummer,” and even the opening bars of the Rolling Stones’ “Honky Tonk Women” or Aerosmith’s “Walk This Way.” Afrika Bambaataa took a cue from Kool Herc’s eclecticism, going a bit further by mixing in television commercials and the theme to The Andy Griffith Show. But in terms of sonic skills and agility, Grandmaster Flash left Kool Herc and other DJs in the proverbial dust. “Most great records had amazing parts,” Flash told me. “You know, the percussive part that you wait for—before they called it ‘the break’ it was ‘the get-down part.’ What pissed me off was that part was so short, so I just extended it with two copies to five minutes.”

The one thing Flash couldn’t do was spit rhymes, which wasn’t a big deal because in 1970s hip-hop culture the DJ was the star, not the MC. “I was like totally wack on the mic,” said Flash, “so I had to find someone able to put a vocal entertainment on top of this rearrangement of music.”⁴ From there, Grandmaster Flash and the Furious Five—best known for “The Message” and “White Lines”— were born. Herc, Flash, and Bambaataa inspired numerous up-and-coming Bronx DJs during the late 1970s, including Grand Wizard Theodore, Grandmaster D.S.T., and DJ Afrika Islam, among others.

Offering a window into that time is a rare taped performance by the Cold Crush Brothers that fell into my hands while writing this book. It was recorded over a quarter century ago, but something about it sounds fresh—funky fresh—because the music was created live with turntables, mixed by a deft (and def ) DJ who might screw up and drop a beat at any moment. It’s that sense of danger, the feeling that comes from live performances, that makes it so compelling. The same year of the Cold Crush Brothers recording, 1977, the French intellectual Jacques Attali published an important book, Noise, in which he unknowingly described (in the abstract) the turntable practices South Bronx hip-hop DJs had already perfected. In his book, Attali breaks up the history of music-making into four stages, with the fourth stage, composition, existing only in his imagination at the time, or so he thought.

“The listener is the operator,” said Attali about this musicmaking method, where anyone could compose music, regardless of whether they fit the traditional category of “musicians” or not.⁵ In the composition stage, the distinction between the worker and consumer, the musician and listener, was blurred—quite an advanced concept for the 1970s. Afrika Bambaataa’s sonic collages echoed Attali’s technique, in which the cultural consumer—the record buyer, the DJ—morphed into the cultural producer. The turntable is an object of consumption that was reimagined by DJs as a technology of production, and today’s software programs now allow anyone with a computer to collage and compose.

This expansion of creative possibility has resulted in the MP3 “mash-ups” of today, where thousands of bedroom composers are creating new songs by smashing together two different songs and putting them on the Internet for free. One hilariously compelling mash-up I’ve downloaded crosses Eminem’s “Without Me” with “Come On Eileen” by Dexy Midnight Runners, which—dare I say it?—aurally emasculates the posturing white rapper by placing him atop a goofy one-hit wonder of the 1980s. Another great one is Eminem’s “The Real Slim Shady” set to a ragtime instrumental. At their best, mash-ups sound equally right and wrong; the fusion can be both seamless, but weird and jarring. Yet again, the original authors no longer have the last word.

This sensibility echoes philosopher Jacques Derrida’s writings, in which he encouraged readers to play with the text—mocking, deconstructing, and reconstructing it. Derrida was publishing his writings on deconstruction roughly at the same time hip-hop DJs, disco DJs, and dub reggae producers developed their deconstructive music methods in the early 1970s. And his ideas were as revolutionary in the academy as hip-hop was in the South Bronx. There was a common impulse shared at the time by all sorts of people— whether they were working with typewriters or turntables, in the ivory tower or in the streets—to “break it down,” so to speak. The deconstructive tactics these DJs used would have likely been approved of by Roland Barthes. He attempted a literary drive-by in his widely cited essay, “The Death of the Author,” where he more or less blew away established assumptions about what authorship is.

For instance, in Leviathan, that influential Enlightenment artifact, Thomas Hobbes defined the author, first, as someone who is responsible for his writing and, second, one who determines the text’s meaning after it circulates. For Barthes, the first definition doesn’t stand up to scrutiny because it is the critical reader who determines the meaning of a text. Just ask that Catcher in the Rye fan and John Lennon assassin Mark David Chapman, or all the fans who misinterpreted Bruce Springsteen’s anti-Vietnam anthem “Born in the U.S.A.” as a jingoist ditty.⁶ Barthes wanted to give more power to the people—the readers, in this case. This desire wasn’t merely a theoretical exercise, because it was rooted in the very real fact that all readers have their own interpretations and can make their own meanings.

The attempt to eliminate the godlike power and influence of the author was only a reaction to the critical tenor of the times, when the author’s intentions had previously eclipsed most everything in the field of literary criticism. One of Roland Barthes’s motivations—which was shared by Michel Foucault in his essay “What Is an Author?”—was to undermine the overpowering influence of the author. The things that DJ Derrida, Funkmaster Foucault, and Roland 808 Barthes wrote about in the late 1960s and 1970s foreshadowed, in part, the way today’s young adults have been brought up reading and playing with fragmented, hyperlinked texts and images. The manner in which my college students use the Internet and editing software has severely damaged the myth of the individual genius author, for it gives them the tools to freely collage image, music, and text.

OLD-SCHOOL SAMPLING

The reason these collage practices seem so natural and copyright industries have been unsuccessful in convincing people that it’s wrong is that this kind of borrowing is a natural part of being a sentient being. The earliest example of “sampling” on the Billboard charts was Buchanan and Goodman’s 1956 hit “The Flying Saucer.” Bill Buchanan and Dickie Goodman composed this funny “breakin” record on a reel-to-reel magnetic tape recorder, creating a skit about an alien invasion—as told through then-current rock ’n’ roll hits. Imitating the radio broadcasts of War of the Worlds, the songs break into the radio announcer’s comments, creating a jarring, goofy collage of sound.

“Radio Announcer: The flying saucer has landed again. Washington: The Secretary of Defense has just said...” Then Fats Domino bursts in, singing, “Ain’t that a shame.” Elvis appears, as do many others, and the record sold over a million copies, inspiring a host of imitators. A few song publishers sued Goodman, which prompted these jokers to release the totally unauthorized “Buchanan & Goodman on Trial.” The delirious 1956 single swiped the Dragnet theme, among many other songs, and Little Richard “played” their defense attorney—who argued in front of a jury of Martians. Four labels (Imperial, Aristocrat, Modern, and Chess) and two performers (Fats Domino and Smiley Lewis) filed for an injunction to prevent the sale of all Buchanan-and-Goodman recordings. They also asked for $130,000 in damages.

Judge Henry Clay Greenberg sided with Buchanan and Goodman, denying the injunction because he believed that the single was clearly a parody and not a violation of anyone’s copyright. The judge stated that Goodman “had created a new work,” rather than simply copying someone else’s music.⁷ Goodman had a long career, working into the 1970s (“Energy Crisis” and “Superfly Meets Shaft”) and the 1980s (“Hey E.T.” and “Safe Sex Report,” which eclectically samples Michael Jackson, the Grateful Dead, L.L. Cool J, Huey Lewis, and Los Lobos!). To make his life easier, Goodman started working within the system—buying licenses for most of the songs he excerpted—but he never lost his subversive edge.

Igor Stravinsky once said, “A good composer does not imitate, he steals.” He was one of many European composers who borrowed from folk melodies in composing their own works. Another notable appropriator was Johannes Brahms, who was quite obsessed with the songs of his youth. He arranged well over two hundred folk tunes in his lifetime, with some melodies finding their way into his art-song compositions such as Sehnsucht. But Brahms’s most significant and highly regarded use of folk-song material was his Deutsche Volkslieder for voice and piano. He took as much pride in these works as his “original” compositions, perhaps more. Biographer Malcolm MacDonald wrote that Brahms’s Deutsche Volkslieder are “a series of miniature masterpieces worthy to stand with any of his art songs of the same period.”⁸

Although it is quite “original” in its own right, Brahms’s First Symphony borrowed musical phrases from Beethoven’s Ninth Symphony. And in composing the introduction to his Third Symphony, Mahler swiped a major theme from Brahms’s Beethoven-biting symphony, converting it into minor mode but keeping the melodic structure intact. When someone pointed out to Mahler the fact that those two pieces were so similar, he snapped, “Any fool can hear that.” Elements of Beethoven’s Ninth can be heard in Mendelssohn’s Lobgesang, as well as a great deal of Wagner’s body of work. This kind of musical borrowing continued into the twentieth century and beyond. Woody Guthrie was inspired by and borrowed from all sorts of artifacts, including books. One such book is John Steinbeck’s The Grapes of Wrath, which dealt with the plight of the dust-bowl victims during the Great Depression. Guthrie condensed much of the novel’s action into his song “Tom Joad,” down to Tom’s last words to his mother, and he sang it to the tune of “John Hardy,” an outlaw folk ballad Guthrie was familiar with.

Steinbeck later half-jokingly groused, “That little fuckin’ bastard! In seventeen verses he got the entire story of a thing that took me two years to write!”⁹ Rather than suing, the novelist was honored by the transformation of his work. Bruce Springsteen loved Guthrie’s music, declaring during a concert that “This Land Is Your Land” was “one of the most beautiful songs ever written.” And for the title track to his 1995 album, The Ghost of Tom Joad, Springsteen similarly transformed and drew inspiration from Steinbeck’s novel. Bob Dylan also followed in Guthrie’s footsteps. After reading Guthrie’s autobiography Bound for Glory and mastering almost every song in his vast songbook, Dylan traveled from the Midwest to New York City to make his musical fortune.

One of his first compositions was, fittingly, “Hard Times in New York Town.” Its melody borrows from an old folk song popular among white southern farmers. For his own song, Dylan took the verse structure, the opening two lines, and the primary melody from “Down on Penny’s Farm.” The one major difference is that he shifted the setting from the country to the city. The same is true of other early songs by Dylan, such as “Man on the Street,” which borrows the melody of an American frontier song, “The Young Man Who Wouldn’t Hoe Corn.”¹⁰ Like his mentor hero, Dylan pillaged and plundered from that which inspired him. Even the tune of “Blowin’ in the Wind” was cribbed from an old freedom song sung by ex-slaves.

Although folkie Pete Seeger was the first to finger the Dylan song’s original source, the enigmatic icon also admitted as much. “ ‘Blowin’ in the Wind’ has always been a spiritual,” he said. “I took it off a song called ‘No More Auction Block’—that’s a spiritual, and ‘Blowin’ in the Wind’ sorta follows the same feeling.”¹¹ In a 1962 interview on the New York City independent radio station WBAI, Bob Dylan played his guitar, answered the DJ’s questions, and gave a rare view into his early songwriting methods. WBAI: “That’s a great song, how much of it is yours?” Dylan: “I don’t know, I can’t remember.”

A minute later, he introduced another song, “I got a new one, it’s called ‘Emmett Till.’ I stole the melody from Len Chandler. He’s a folk singer, uses a lot of funny chords. He got me to using some of these funny chords, trying to teach me new chords. He played me these, said, ‘Don’t they sound nice?’ So I said, ‘They sure do.’ So I stole it, the whole thing.12 After Dylan released 2001’s fittingly titled Love and Theft, reporters discovered that he directly lifted about a dozen passages scattered throughout the English translation of Junichi Saga’s Confessions of a Yakuza. The author, rather than being incensed, was honored, telling the Wall Street Journal, “Please say hello to Bob Dylan for me because I am very flattered and very happy to hear this news.”

ENTER THE SAMPLER: ART MEETS THE LAW

Once it was introduced in the mid-1980s, the digital sampler allowed for a new method of musical appropriation. Hip-hop producers could now manipulate recorded sound in a more complicated and sophisticated way, something Public Enemy took advantage of. Their songs contained dozens of fragmented noises, melodies, percussion, and spoken-word recordings from Malcolm X and others. Despite the fact that there had already been a tiny handful of copyright-infringement lawsuits against hip-hop artists, Chuck D and company didn’t worry themselves with clearing samples, which gave them a huge amount of creative freedom. “The only time copyright was an issue was if you actually took the entire chunk of a song, as in looping a measure, which a lot of people are doing today,” Public Enemy producer Hank Shocklee tells me.

“But the kind of things we were doing,” says Shocklee, “we were just taking a horn hit here, a guitar riff there; we might take a little speech, part of a speech over here, a kick snare from somewhere else. It was all bits and pieces.” At the time It Takes a Nation was released in 1988, hip-hop was largely an underground phenomenon and had yet to make inroads to pop radio or MTV. For a short time, hip-hop producers were getting away with the intellectual-property equivalent of murder, though many soon found themselves in court for their sampling sport. “We never really cleared the samples when we first did it,” remembers Shocklee. “As a matter of fact, it didn’t start catching up with us until the album afterwards, which was Fear of a Black Planet, in 1990. That’s when the copyrights and everything started becoming stricter....Usually you could put a record out there on the block and nobody would even think about it.”

“The corporations found that hip-hop music was viable,” Chuck D tells me. “It sold albums, which was the bread and butter of corporations. Therefore, lawyers felt that since the corporations owned all the sounds, people began to try to search out who had infringed upon their copyright.” Record companies became stricter after an important 1991 copyright-infringement case that pitted sensitive 1970s singer-songwriter Gilbert O’Sullivan against Biz Markie, who used a twenty-second sample from O’Sullivan’s most popular song, “Alone Again (Naturally).” Markie offered to pay for the sample but was denied permission, so he and his record company, Warner Records, put it out anyway.

The judge who presided over the case was not hip to these newly emerging sample practices, nor did he care about the culture from which the music emerged. Judge Kevin Thomas Duffy found the defendant guilty of copyright infringement and invoked the Seventh Commandment when suggesting Markie should be subject to criminal prosecution—for stealing. In order to remain consistent, though, that judge would also need to prosecute Igor Stravinsky, Gustav Mahler, William Shakespeare, Marianne Moore, T. S. Eliot, Bob Dylan, Muddy Waters, Woody Guthrie, and others, because they too were guilty of “blatant theft.” To those who are skeptical of digital sampling as an art form, I say this: Even I, your author, the world’s biggest spaz, can learn how to competently strum three guitar chords in three hours. Without much practice and with no previous musical training, almost anyone can play any number of songs on guitar, like “Louie, Louie” or “All Along the Watchtower.”

It would take much more time for that same person to learn and become competent with the many technologies involved in sampling and collage. Public Enemy member Harry Allen puts it best when he explains to me that sampling is just a tool, like a paintbrush; it’s a way of expressing yourself. There’s nothing inherently creative or uncreative about the digital sampler. “Sampling is like the color red,” Allen says. “Is the color red creative? Well, it is when it’s used interestingly, and it isn’t when it comes out of the can— just lying there, so to speak.” The physicality of playing a musical instrument makes it seem to be a more “authentic” kind of musical expression than digital sampling. But I believe these notions of authenticity are more generational than inherent to the “pure” act of strumming a guitar itself; the distinctions are, in the end, arbitrary.

One of the more headache-inducing aspects of the way copyright law is interpreted is the seeming randomness of it all. When writing a book, quoting from another book is perfectly acceptable—for instance, Derrida’s Dissemination and Kathy Acker’s Blood and Guts in High School borrow large chunks from the prose writings of others. But quoting more than two lines from a song’s lyrics in a book—even if it takes up only 0.001 percent of the book’s total text—might get you and your publisher in trouble. As long as it’s brief, singing a phrase from an old song and placing it in a new song probably won’t get you sued, and a court likely wouldn’t consider it an infringement. However, David Sanjek—director of the Broadcast Music Incorporated (BMI) Archives—is careful to point out to me that any copyright owner with an ax to grind could sue. There’s nothing stopping them.

Fortunately for the irony-drenched metal band The Darkness, their fragmentary borrowing didn’t provoke a lawsuit. On their 2004 hit, “I Believe in a Thing Called Love,” the group lifted the line “touching me, touching you” from Neil Diamond’s karaoke classic “Sweet Caroline” without asking. Although this wasn’t a problem, if they digitally sampled those four words without permission, it surely would have instigated a lawsuit. More mind-numbing examples from other mediums: Referring to a trademarked good in everyday conversation will cause no problem, but movie directors often have to get permission from an intellectual-property owner to show it or even mention it in movie dialogue. Referring to trademarked brands in pop songs is okay. But creating satire on a Web site by using a company logo requires you to exactly duplicate a privately owned image, and this leaves you more vulnerable to a lawsuit.

Today’s unrealistically high standards of originality don’t reflect the way people have always made art and music. What’s the difference, really, between T. S. Eliot invoking and directly quoting from the Bible, Greek myths, Dante, Shakespeare, Arthurian legend, and dozens of other cultural works, and Public Enemy doing the same sort of thing with sound? There is no convincing argument I have heard that justifies why it is fine in printed works to quote small fragments from books, poems, or plays, but quoting and collaging small fragments of sound is unacceptable. If T. S. Eliot were young and alive today, he would maybe, just maybe, use a computer and sampler to construct his cultural collages, rather than pen and paper. The Waste Land Remixed?

“With sampling, we took an arrangement and we was able to take an assortment of sounds and arrange it in our own way,” Chuck D tells me. “We thought sampling was just a way of arranging sounds. Just like a musician would take the sounds off of an instrument and arrange it their own particular way. We thought we was quite crafty with it.” The song “Don’t Believe the Hype” from It Takes a Nation is an example of the kinds of aural experiments Chuck D and Hank Shocklee and the rest of the Bomb Squad were up to. “That’s a song that’s been basically played with the turntable and transformed and then sampled,” says Shocklee. “Some of the manipulation we was doing was more on the turntable itself. Then there were certain things that was straight-up taking, and we applied multiple effects to it.”

In the late 1980s, when they could still get away with it, Public Enemy collaged together hundreds of fragmentary samples to create an album. In some cases, the drum track alone was built from a dozen individually sampled and sliced beats. “The first thing we’d have is what is known as the beat, which is the skeleton of the track,” remembers Shocklee. “The beat would actually have bits and pieces of samples already in it, but it would only be the rhythm sections—the thing that gives you some sort of idea or melody. Then the track goes through a writing process.” They created new songs cobbled together from bits and pieces of old music, undermining dusty old romantic notions of originality and authorship with this crisp new digital technology.

Even though there was more freedom to sample and remix during this time, that doesn’t mean people weren’t paranoid. Coldcut is a British duo whose 1987 remix of Eric B. & Rakim’s “Paid in Full” helped spread hip-hop outside the United States, and their copyright-violating debut record popularized the cut-and-paste aesthetic in the U.K. club scene. “John More and I,” Matt Black tells me, sitting in Coldcut’s overstuffed London recording studio, “when we made Hey Kids, What Time is It?, we sampled Kurtis Blow, and The Jungle Book [soundtrack], and a whole heap of stuff. We actually thought we might be arrested when we went down to the pressing plant, so we used false names.” Black adds, “We went through each record and scratched out with a soldering iron the matrix number that identified it. We were aware that this was potentially litigious, but we thought we could probably get away with it with five hundred copies.”

The $1.7 million lawsuit brought by the Turtles against De La Soul justified Coldcut’s fears. “Sampling is just a longer term for theft,” said an angry Mark Volman, a member of the Turtles. He complained about this after De La Soul used a relatively inconsequential song fragment in their 1989 album 3 Feet High and Rising.¹³ When sampling first started gaining attention in the late 1980s, this was the attitude of many aging rockers—and even some funksters. Protecting the individual artist is a large part of the rhetoric that props up the way copyright law is currently structured, even though in reality copyrights largely accrue capital for intellectual property–owning companies, not the artists themselves. Chuck D sums it up this way: “You might have some lawyers from Sony looking at some lawyers from BMG, and some lawyers from BMG saying, ‘Your artist is doing this.’ So it was a tit for tat that usually made money for the lawyers and garnered money for the corporations.”

Most sampling cases were settled out of court, though one example that broke from this trend was the unanimous 1994 Supreme Court ruling that favored 2 Live Crew. The group, fronted by Luther Campbell, was sued for reworking Roy Orbison’s hit “Pretty Woman” when they sampled the guitar, bass, and drums from the original song. Both songs begin, “Pretty woman, walking down the street,” but after that, things go horribly awry on the 2 Live Crew version.

ORBISON LYRICS:

Pretty woman, walking down the street

Pretty woman, the kind I like to meet

2 LIVE CREW LYRICS:

Big hairy woman, all that hair ain’t legit,

Cause you look like Cousin It.

Two Live Crew’s lawyers argued that the song was a parody and it should have “fair use” protection, while Orbison’s publishing company’s lawyers claimed that the song violated their client’s copyrights to the original song. The Court voted unanimously that this wasn’t an infringement; instead, it qualified as fair use, even though the record was sold commercially. It also opened up the possibility that not all sonic quotations are automatically copyright infringements. Unfortunately, though, case law remains muddy when it comes to sampling. The Biz Markie and 2 Live Crew cases are the only two major rulings that have ended up guiding common practice. This is unfortunate because they both deal only with the song’s main “hook,” and don’t deal with more fragmentary samples such as those used by Public Enemy. Therefore, the assumption is that any sampled sound of any length in any context is without doubt copyright infringement, unless it’s a parody.

Two Live Crew’s awful version of “Pretty Woman,” by the way, is what fair use and free speech can sound like—sometimes it’s not attractive at all. The fair-use statute was written into the 1976 Copyright Act to allow taking from a copyrighted work for the purposes of education, criticism, and parody, among many other things. Most copyright owners—corporate owners, especially—aren’t very liberal in their interpretations of how their intellectual property is used by others (for them, any use is stealing). But for the most part, the law is not on their side; their only advantage is they have more money to devote to litigation than most individuals.

Although there’s no hard and fast rule that allows us to instantly assess whether something is a fair use, the statute provides us with four factors to help us determine the legality of our borrowing. According to Section 107 of the 1976 Copyright Act, these include: “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; (4) the effect of the use upon the potential market for or value of the copyrighted work.” Fair use is an intuitively named statute, because it is designed to enable uses of copyrighted material that are considered, quite simply, fair.

Let’s say a pop artist took a large chunk of “Pretty Woman” and only made slight alterations, essentially getting a free ride on Roy Orbison’s creative labor. Such a use would seem unfair, especially because the updated version could replace the original in the market. In the 2 Live Crew case, it didn’t unfairly step on the original’s sales potential. Even though the amount taken was substantial, the Supreme Court recognized that parodies, by definition, require a relatively large amount to be taken. The Court’s unanimous decision in the 2 Live Crew case stated that these four factors should not be seen as a rigid checklist—a yes/no binary. If you “fail” one (or even more) of the four tests, your borrowing still isn’t necessarily a copyright infringement.

Instead, the Court ruled that these four factors should be seen as existing on a continuum, where an overall balance of fairness is struck between the old work and the new. In short, the high court argued that just because the new work is for profit doesn’t mean it’s not fair. It’s a common misconception about the statute—that a commercial sale automatically disqualifies something from fair-use status. However, in drafting and interpreting copyright laws, the Supreme Court, lower courts, and Congress recognize that we live in a commercialized society. They have consistently acknowledged that if we make some things totally off-limits for comment, we undermine the founding principles of democracy.

COPYRIGHT CRIMINALS

Before the 1992 Biz Markie ruling, few record companies had internal rules about sampling, which explains why Warner Records allowed Too Much Joy to keep the U2 and Police samples on their record even after Bozo complained. In all likelihood, numerous record employees heard the Too Much Joy record, recognized the samples, but didn’t think anything of it. But that was no longer true in 1992, when the band was trying to complete their next album, which was tentatively titled Burn Down the Suburbs with Too Much Joy, a reference to the song “Clash City Rockers.” The band sampled Joe Strummer singing the line “Burn down the suburbs with...,” to which they appended with “Too Much Joy,” itself a sample from one of the band’s previous albums.

Because the tempos of the Clash and Too Much Joy songs were different, Tim Quirk and company had to slow Joe Strummer’s voice down so much so that he became unrecognizable. You might think this would render the copyright issue moot, but that wasn’t the case. For the first time, after recording three albums for the label, a “sample clearance report” landed in their laps, requiring them to divulge the sources of all samples so that the legal department could pursue licensing agreements with copyright holders. In 1992 this was a relatively new practice that was quickly institutionalized. “Some poor motherfucker in the legal department at Warner [Records] had to sit there with headphones,” Quirk says, laughing, “pushing pause on our record any time they heard anything that they thought might be a sample.” Sony wanted five thousand dollars for the Clash sample, which he points out is one thousand dollars a word. In retrospect, this was a bargain, given the skyrocketing costs of sampling throughout the 1990s. Too Much Joy also sampled their drummer’s voice in his day job as an NYPD patrol officer, but their record-company lawyers told them that in all likelihood the NYPD owned the copyright to this recording.

“Now we’re losing our patience,” remembers Quirk. “The cost seems to have no relation to the use—if we have to pay five grand apiece for each sample, not to mention legal fees for getting all the paperwork signed, we’ll end up spending more than ten percent of our recording budget for less than nine seconds of sound.” Not caring much for legalities, the group signed a form stating there were no copyrighted sources on the album, an obvious lie, but one that lessened Too Much Joy’s debt to their employer. They had to take off the Clash sample because the Warner Records lawyers were onto them, but the group claimed that the rest of the suspicious sounds were created by the band in the studio. This is a common escape hatch in the digital-sampling world.

The way copyright law was enforced helped turn on its head hip-hop’s original creative method: reworking prerecorded sounds. For instance, when Public Enemy wanted to sample from Buffalo Springfield’s “For What It’s Worth” for the title song in Spike Lee’s He Got Game, the fees were outrageous. Chuck D told me it was cheaper to mimic the song’s instrumentation in the studio and to wheel in Stephen Stills, who originally wrote the song, and have him re-sing it. This way, they only had to pay royalties to Stills, the songwriter, and not deal with Atlantic Records, which released the Buffalo Springfield recording and demanded a steep price. This is how copyright law and the sample-licensing bureaucracy have forced hip-hop artists to bend and twist.

Today, hip-hop producers regularly hire studio musicians who are instructed to imitate a known song. This seemingly odd and irrational process is actually a very rational decision by producers who want to sidestep the often-expensive mechanical royalty fee, which pays for the right to sample a Buffalo Springfield record released by Atlantic. When using studio musicians, hip-hop artists still have to pay the publishing fee, which compensates a songwriter such as Stephen Stills. “Sampling a record violates both of these copyrights,” said Hank Shocklee, explaining why he and other hip-hop producers changed their creative practices. “Whereas, if I record my own version of someone else’s song, I only have to pay the publishing copyright.”

As the nineties progressed, record companies began to more aggressively monitor the sampling practices of their artists, which helped create a new cottage industry, called sample-clearance houses. These are third-party companies that track down the original copyright holders and negotiate a license for a sampled sound. The director of a sample-clearance house estimated that the clearance fees for the average hip-hop album totaled about thirty thousand dollars in the early 1990s, and those rates dramatically rose over the decade.¹⁴ Sometimes it can cost as much as one hundred thousand dollars for a single sample. Rapper/producer Kanye West—whose innovative production work on Jay-Z’s records has been heard by millions—learned this licensing lesson when making his 2004 solo disc, College Dropout. He’s on a label, Jay-Z’s Roc-A-Fella Records, that can afford the ridiculously high prices companies charge, but West still had problems.

When Kanye wanted to include a brief sample taken from hip-hop artist Lauryn Hill’s 2002 MTV Unplugged album, he encountered multiple obstacles. “The problem was it had to get cleared through MTV and also through Sony,” says West, referring to the network that originally broadcast Hill’s performance and the record company that owns her master tapes. “The sample was going to end up costing like around a hundred and fifty thousand dollars.”¹⁵ This is an extremely large amount of money, especially when it is added to the cost of recording, promotion, music videos, and the like. Even though Kanye and his record company were willing to pay for this very brief fragment of sound, the bureaucratic wheels turned so slowly that it would have significantly delayed the release of his long-anticipated record.

As a solution, West employed the services of R&B songstress Syleena Johnson, who sang Hill’s part, legally bypassing the need to negotiate a mechanical license for the MTV Unplugged album. The rapper and producer Wyclef Jean, who has both sampled other people’s records and used live instruments to closely mimic records, told me that copyright has played a part—on a subconscious level, at least—in his decision to use live instruments. “Yeah, it’s a way of getting around that mechanical fee, so that has something to do with it,” he tells me, shaking his head. “Licensing is expensive.”

“Records like It Takes a Nation of Millions and 3 Feet High and Rising,” Public Enemy’s Harry Allen observes, “they’re kind of like artifacts from an earlier time that couldn’t exist today. They’re just financially untenable, unworkable records. We would have to sell them for, I don’t know, a hundred and fifty-nine dollars each just to pay all the royalties from publishers making claims for one hundred percent on your compositions.” You can place the Beastie Boys’ 1989 densely packed Paul’s Boutique in the same category. “Ninetyfive percent of the record was sampled,” says engineer and producer Mario Caldato Jr., who worked on Paul’s Boutique. “They spent over two hundred and fifty thousand dollars for sample clearances."16 A quarter million turned out to be a bargain, because if those licenses were cleared today the album would be far too expensive to release. In an interview on his band’s Web site, Beasties group member Adam Yauch agreed that “the hectic sampling laws are a bit of a deterrent from sampling.”

These comments remind me of conversations I’ve had with researchers and businesspeople who deal with gene-patent licenses. Because many new drugs and therapies have to use multiple patented genes from many owners, the royalty costs can get very expensive. “I’m very much aware of how many patents that I’ve had to in-license to support one drug,” Helena Chaye tells me, talking about her employer, MediGene. “It results in a stacking of royalties. It has to economically make sense to me, because if I have to pay royalties out to parties A, B, and C, you have to add it all up.” She continues, “Oh, my God, this drug is going to bring in x number of dollars, but I have to pay out x percentage in royalties—that’s not going to work.” For the most part, in Chaye’s experience, she’s able to negotiate a price that makes it financially sensible for her company to release a drug.

However, the same isn’t true of the music industry when it comes to reasonable royalty rates for samples, nor is it the case for documentary filmmakers. “I think of historical documentaries as being, in some ways, analogous to music that depends on sampling,” documentary producer John Sorensen told the Center for Social Media, which has reported on the creative tensions surrounding copyright and filmmaking.

PLAYING FAIR

Curtis Mayfield’s 1970s funk records are sampled often, something that provides an ongoing stream of revenue for the deceased musician’s widow and ten children. Mayfield—who wrote “People Get Ready,” “Freddie’s Dead,” “Superfly,” and other classics—received an expensive, paralyzing injury in 1990. Fortunately, this happened right around the time when his music started to be widely sampled. “Sampling let his family be financially secure,” explains Marv Heiman, the executor of Mayfield’s estate.¹⁸ Who can argue with that? I certainly don’t, because Snoop Dogg and others sampled significant elements of Mayfield’s songs in ways that weren’t especially transformative. The success of the derivative work, its funkiness or catchiness, depends on the power of the original Mayfield song. Although I’m quite critical of the way the current sample-licensing system works, I’m certainly not arguing that no payments should be made to the original artist at all.

“You couldn’t just, like, go and sample an entire chorus of a Beatles record,” Coldcut’s Matt Black tells me, “and stick it on your track and go, ‘Hey, I’m being totally original. I’m a collage artist, man, I don’t owe you nothing.’ It’s bollocks.” What’s clear, though, is that sample fees need to be more reasonable, and should reflect the proportion of what was taken. This isn’t the case with the present sample-licensing system, which is a very arbitrary arrangement that inhibits creativity more often than not. When copyright owners can demand a large percentage of the new song’s royalties (Prince, for instance, requires 100 percent), it makes it impossible to legally release interesting collages.

Coldcut has been around since the mid-1980s, long enough to watch the sample-clearance system evolve into what it is today. Although Matt Black believes in paying artists, he feels the system has its problems, which he points out. “If you sample one snare drum off a Rolling Stones record,” says Black, “and add ninety-nine percent of the song yourself, you shouldn’t pay the Rolling Stones one hundred percent of the royalties—their lawyers notoriously insist on being very litigious.” Most people would agree that if you take an entire hook or chorus, you should pay, but reasonable people (and judges) will disagree on how much you can use before it’s copyright infringement. Those who sample and who have been sampled hold varying opinions about the subject.

De La Soul, which blames their record company for not clearing the Turtles sample, believes in compensating the original artist, especially when the borrowing is significant. “It’s important to us that we clear samples, from day one to today,” says group member David Jolicouer, aka Trugoy the Dove. “We definitely want people to be acknowledged and paid for what they’ve done."19 When Robin Rimbaud—who records under the name “Scanner”—was sampled on a multimillion-selling record by Björk, he really didn’t mind. However, Scanner’s record company and the lawyers cared a lot, and insisted on suing. The polite Englishman describes how he was caught in a cauldron of lawyers, all while remaining apprehensive about what was going on, supposedly for his benefit.

“Morally, it felt wrong to be asking for money,” Scanner tells me, “because this sound of mine is being introduced into another work, this popular piece of music, that took it in a completely different direction.” Scanner eventually pulled the plug on the lawsuit, which frustrated the lawyers and his record company. In retribution, they terminated his contract and released his unfinished demos without his permission, which the record company advertised as a new Scanner album. Because of the terms of his contract, there was nothing he—the author and creator—could do about it.

The first time Tim Quirk thought about sampling as a moral issue was when he heard Grandmaster Flash and the Furious Five’s “White Lines,” which liberally borrows the bass line from “Cavern,” by Liquid Liquid. “Since the hook from the new tune was pretty much the hook from the Liquid Liquid song, that felt like some kind of line had been crossed. Even then, I didn’t think it was illegal—just lame.” Liquid Liquid came out of the same genre-mixing downtown scene that was inspired by the hip-hop music of Grandmaster Flash and Afrika Bambaataa. “In the early 1980s,” Public Enemy’s Harry Allen tells me, “you had this mix of audiences around danceable music at clubs like Danceteria and the Funhouse. You’d have high-energy Latin ‘freestyle’ music, as it was called back then, and hip-hop and other kinds of dance music that are kind of intermingled.”

The Funhouse’s DJ, Jellybean Benitez, used “Cavern” as the last song of the evening, which helped it gain currency among downtown clubbers and hip-hop artists. The four white guys in Liquid Liquid were attracted to New York by the “no wave” punk scene, but were immediately sucked into the cacophonous collage of music that surrounded them. “We were listening to reggae and African stuff and picked up on stuff like merengue from the streets—you could hear it coming out of everywhere,” remembers Richard McGuire, Liquid Liquid’s bassist. “But it wasn’t till I heard Grandmaster Flash’s ‘Wheels of Steel’ for the first time, that was the future,” a wide-eyed McGuire tells me while sitting in his spartan Manhattan studio, shortly before moving to France. “Later, when it turns out that Grandmaster Flash, of all people, ends up using my bass line, it was just an honor. It was this amazing thing at first, and then it got complicated with all the legal stuff later.”

What Grandmaster Flash and Melle Mel borrowed from Liquid Liquid’s song was not just the prominent bass line, but pretty much the whole song structure. This isn’t to say they didn’t transform it, but the element that makes Flash’s “White Lines” so successful comes primarily from “Cavern.” This prompted a lawsuit from Liquid Liquid’s record company—a long, tangled litigation that wasn’t resolved for a dozen years. “I’m totally for sampling. It’s like any other art form,” McGuire tells me. “And I don’t think it’s necessarily a given that the sources are more interesting than what the end result can be with a collage.” He pauses. “But at the same time, I feel both ways about it. I mean, I’m always interested in how someone can reinvent something, but there has to be some sort of structure [for compensation, he means].”

When Afrika Bambaataa crafted one of old-school hip-hop’s most important songs, “Planet Rock,” he essentially created a mash-up of two songs by Kraftwerk, a German electronic group. They were mad—less because they didn’t get paid than because they weren’t credited. “He knew perfectly well what he was doing,” Kraftwerk associate Maxime Schmitt said. “He had not put the names of the authors and had not declared anything.” Kraftwerk member Karl Bartos added, “It was completely the melody off ‘Trans-Europe Express’ and the rhythm track from ‘Numbers.’ So we felt pissed off. If you read a book and you copy something out of it, you do it like a scientist, you have to quote where you took it from, what is the source of it.”²⁰ Richard McGuire is a little more forgiving about the Grandmaster Flash experience. “I used to say it was my cross to bear,” he says, half-joking. “It’s the reverse of some black musician coming up with something and being stolen by a white performer. It’s like, ‘Hey, maybe I’m paying for the sins of my forefathers.’ ”

WHOM DO RECORD COMPANIES REALLY PROTECT?

Like Chuck D, when it comes to sampling, copyright law, and freedom of expression®, Tim Quirk has an almost inexhaustible supply of firsthand horror stories. “In 1996 something even more sinister happens when we try to clear one of the audio samples we’re stupidly still trying to include in between songs for this record,” Quirk says, referring to Too Much Joy’s last album for Warner, Finally. “The sample comes from the movie Simon, starring Alan Arkin. At one point, Arkin’s character says, ‘Uh-oh, too much joy,’ ” says Tim. “The thing came out on Warner Video, and we were signed to a Warner company, so naive little me—still hadn’t learned what I should have—I assumed that meant we would be able to use it for nothing. No. What it meant was Warner wanted five thousand dollars. Again, it was five words, five thousand dollars.”

By now it’s clear why Quirk is beginning to lose his hair—he must have started ripping it out after his major-label sampling ordeals. “My band would have been charged five thousand dollars by TimeWarner to use material controlled by TimeWarner,” he says in a tone of bitterness laced with an appreciation for the absurdity of it all. “In other words, it was nothing more than a way for the company that controlled our sound recordings to put us five thousand dollars deeper in debt to them.” With movies, it is the studio that owns the copyright. None of the many people who contributed to making the movie—the director, editor, actors, screenwriter, crew, etc.—sees any extra money. It all goes to Warner Video or to the parent company, TimeWarner.

So if Too Much Joy had agreed to the label’s terms, they would have lost five thousand dollars from royalties that Warner Records owed them, and Warner Video would have received a five-thousand-dollar payment. No one except TimeWarner wins in this scenario, and when we pull back and examine the music industry as a whole, we see that this royalties drain happens on a grand scale. Multiply the samples found on the hundreds of albums released each year, multiplied by tens of thousands of dollars in licensing fees per album, and that’s a lot of money that is deducted from artists’ royalties. The original recording artists see only a fraction of that money, if they’re paid at all.

Sample licensing is a shell game where money is split up and passed around among companies. When we look at it on the macrolevel, it becomes clear that the TimeWarners of the world benefit from copyright, not the musicians who are sampled. The process rarely involves the original musicians who wrote or recorded the music because, in many cases, they do not even own the songs’ copyrights. For instance, George Clinton—the famous funkster who founded Parliament-Funkadelic—lost the copyrights for much of his catalog to a shady music-biz type. As alleged in Clinton’s complaint, the man fabricated a cut-and-pasted document (the font and type size changed throughout) that transferred Clinton’s pre-1983 copyrights to his ownership for a ridiculously small sum of money.

Clinton settled the case after the man hired the same lawyer George W. Bush used in 2000 to win the Florida election debacle. “He filed over eight hundred lawsuits against people, suing them for using George’s work without his permission,” says an exasperated Brian Zisk, cofounder of the Future of Music Coalition, a lobbying group focused on protecting artists’ interests in the digital age. Public Enemy was sued as well, for using an extremely fragmentary P-Funk sample in their song “Bring the Noise.21 Zisk is also a friend of Clinton’s, which explains why he’s so upset, especially when he tells me the following: “One of the people who got sued was George Clinton for using his own work.”

These kinds of shenanigans are sadly common in the music industry. Oftentimes, however, it can pay to not back down from an overreaching lawsuit, as John Fogerty discovered in the 1980s. Fogerty—the lead singer, guitarist, and songwriter for Creedence Clearwater Revival—signed a bad contract that caused him to lose the copyrights to his old CCR songs. Adding insult to injury, when he released a new album in 1985, Centerfield, the copyright owner claimed that his new song “The Old Man Down the Road” sounded too much like his CCR song “Run Through the Jungle,” and promptly sued him.

Fogerty allegedly infringed on the copyright of a song he himself had written, spending over three hundred thousand dollars to defend himself against those charges. Unlike many other casualties from the early rock ’n’ roll era, this fortunate son actually had the money to defend himself, or else he would have had to accept an unfavorable settlement that would have reassigned the copyright to his new song to his old record company. Fogerty also won an important Supreme Court ruling in which he won back the legal fees he incurred, a precedent that made it easier to recover the money lost defending frivolous copyright lawsuits.

In 2003 Wu-Tang Clan member Ghostface Killah successfully claimed fair use in New York federal court for his marijuana-drenched parody of “What a Wonderful World,” popularized by Louis Armstrong. “I see buds that are green, red roses too / I see the blunts for me and you / and I say to myself ‘what a wonderful world,’ ” sang Raekwon, Ghostface’s rhyming partner in the Wu-Tang Clan. “Where the original first three lines of ‘Wonderful World’ describe the beauty of nature,” Justice Gerald Lynch drily wrote, the new song “reads more like an invitation to get high with the singer.” Indeed, their song was named “Trees,” hip-hop slang for a marijuana joint, and it also contained the line, “Goofy had kilos, big hole in his nose,” one of many references to characters from children’s stories engaged in unspeakable acts. Tom and Jerry, Porky Pig, Elmer Fudd, Peter Pan, Kermit the Frog, Miss Piggy, Snow White, Daffy Duck, and a couple dozen others make an appearance, but this parody was protected by the fair-use statute.²²

By caving in to the demands of overzealous copyright bozos, you could end up like the Verve, a popular British band that scored a major worldwide hit in 1997 with “Bittersweet Symphony.” The Verve negotiated a license to use a five-note sample from an orchestral version of one of the Rolling Stones’ lesser hits, “The Last Time,” and received clearance from Decca Records. After “Bittersweet Symphony” became a hit single, the group was sued by former Stones manager Allen Klein (who owns the copyrights to the band’s pre-1970 songs because of aggressive business practices). He claimed the Verve broke the agreement when they supposedly used a larger portion than was covered in the license, something the group vehemently disputed.

The Verve layered nearly fifty tracks of instrumentation, including novel string arrangements, to create a distinctly new song. In fact, the song’s signature swirling orchestral melody was recorded and arranged by the Verve; the sample from the instrumental record is largely buried under other tracks in the chorus. The band eventually settled out of court and handed over 100 percent of their songwriting royalties because it seemed cheaper than fighting for a legal ruling that might not end in their favor. As if things couldn’t have gotten worse, they were then sued by another old Rolling Stones manager, Andrew Loog Oldham. Klein went after the Verve for infringing on the songwriting copyright, which he owned, but Oldham possessed the copyright on the sampled sound recording. They totally lost everything.

Not only couldn’t the Verve earn money from their biggest hit, they were stripped of control of their song. For instance, after the group refused Nike’s request to use “Bittersweet Symphony” in an ad, the shoe manufacturer aired the song after it purchased a license from Allen Klein. “The last thing in the world I wanted was for one of my songs to be used in a commercial,” the despondent lead vocalist Richard Ashcroft said. “I’m still sick about it.” In one final kick in the groin, “Bittersweet Symphony” was nominated for a Grammy in the Best Song category, which honors songwriters. Because the unfavorable settlement transferred the Verve’s copyright and songwriting credit to Klein and the Rolling Stones, the Grammy nomination went to “Mick Jagger and Keith Richards.”²³ Ashcroft quipped that it was “the best song Jagger and Richards have written in twenty years.” He then suffered from a nervous breakdown and the group broke up.

When the Beastie Boys found themselves in a similar situation, they prevailed after not settling out of court, though they had to spend five hundred thousand dollars defending themselves. The veteran hip-hop group paid ECM Records to sample six seconds of a recorded flute melody played by James W. Newton Jr., but Newton claimed he should have been paid for his song-publishing rights. He said that those six seconds from his song “Choir”—repeatedly looped in “Pass the Mic” from 1992’s Check Your Head—infringed on the “heart” of his composition. The court ruled that the Beastie Boys’ use of the sample was minimal, and that “Newton is in a weak position to argue that the similarities between the works are substantial, or that an average audience would recognize the appropriation."24

The way ownership is assigned in today’s hip-hop songs highlights the absurd directions the law forces musicians to bend, a sort of intellectual-property version of the game Twister. For instance, Ma$e (the Puff Daddy / P. Diddy protégé who later quit the rap game and found God) included a song on his second album that listed nine people on the songwriting credits, six of whom never set foot in the studio when Ma$e recorded “Stay out of My Way.” The interesting thing about this song is that it sampled Madonna’s 1990 song “Justify My Love” (written by Madonna, Lenny Kravitz, and I. Chavez), which in turn sampled and looped an entire measure from Public Enemy’s 1988 song “Security of the First World” (written by J. Boxley, Chuck D, and Eric Sadler). In 1998 all of these people were credited as writers on the Ma$e song.

In addition to the fact that it’s excessive, this way of giving credit for authorship is often unfair. It ignores some “authors” who contributed an important section of a song—for instance, a session drummer or bassist who performed a funky breakbeat but didn’t get songwriting credit. It’s the drumming of Clyde Stubblefield that propels many James Brown samples, but the vast majority of James Brown songs do not credit Stubblefield or his other backing musicians. “Anything they take off my record is mine,” Brown once said about sampling. “Can I take a button off your shirt and put it on mine? Can I take a toenail off your foot—is that all right with you?”²⁵ Yes, James Brown may have written the verse-chorus-bridge-verse-chorus structure of a particular song. But the two-and-a-half-second fragment that a hip-hop producer might sample has little to do with what James Brown brought to the song and everything to do with Stubblefield’s amazing, influential drumming style.

This sample-clearance bureaucracy unjustly neglects the sampled authors who go uncredited, and it also unfairly treats those who sample by assuming that they are somehow being less creative than a traditional musician. Producers have to pay for the sin of importing a breakbeat or a horn hit into their digital sampler or Roland 808 drum machine because they weren’t being “original.” The idea of the “original genius” comes out of the early-nineteenth-century Romanticist movement, which put forth the notion that a great author creates something totally new from scratch. But the idea that an individual author is solely responsible for all aspects of a work is an ideological sleight of hand, a fiction that some philosophers and literary critics have tried to exterminate.

One of the themes of Jacques Derrida’s scathingly sarcastic book Limited, Inc. focused on imploding conventional assumptions about authorship. He had previously written an important essay, “Signature Event Context,” to which the scholar John R. Searle penned his very critical “Reply to Derrida.” This prompted the philosopher-prankster to compose his own crafty comeback. Derrida begins by picking apart a brief passage from “Reply,” “Copyright © 1977 by John R. Searle,” riffing on it like a jazz musician—progressively reinterpreting and interrupting its intended meaning. In Searle’s essay, he acknowledges “H. Dreyfus and D. Searle for discussion of these matters.” Rather than being a lone author, Derrida suggests that this is “a Searle who is divided, multiplied, conjugated, shared. What a complicated signature!” The signature becomes ever more complex when Derrida points out that Dreyfus is an old friend with whom he has exchanged ideas.

Therefore, Derrida says that he, too, should control a share of Searle’s essay, what he sardonically calls “the stocks and bonds” of “this holding company, the Copyright Trust.” He goes on to refer to this corporation as “three + n authors,” then dumps this ponderous expression, giving the “collective author” the French name “Société à Responsabilité Limitée”—literally “Society with Limited Responsibility.” This is normally abbreviated as S.A.R.L., so for the rest of the book, Derrida mischievously refers to Searle as “Sarl,” deadpanning, “ ‘I’ therefore feel obliged to claim my share of the copyright of the ‘Reply.’ ” With his linguistic gymnastics, he complicates the simple division of “author” and “nonauthor” and other false binaries, suggesting that this terrain “is slippery and shifting, mined and undermined."26

The questions about the nature of authorship make it all the more difficult to justify the current sample-licensing system. Take the case of the Funk Brothers, the talented and versatile session musicians who performed on most Motown hits—playing on more number-one songs than Elvis, the Beatles, and the Rolling Stones combined. The Funk Brothers played an important role in writing numerous songs, but they were never properly credited for their contributions. “The Funk Brothers were the main ones who pulled it off,” says Martha Reeves, who, with the Vandellas, scored a massive hit on Motown with “Heatwave.”

She says in the documentary Standing in the Shadows of Motown that Smokey Robinson would come into the studio with “maybe two bars or two verses of [a song] on some paper and say, ‘What do you think of this?’ ” Reeves recounts how Funk Brother Joe Hunter would say, “ ‘This is what you’re trying to play,’ and give him the chord and full structure . . . and in a minute you’d have a song.” In other words, creativity is far more collaborative than the myth of the original author lets on. Even when the copyright owner isn’t a large corporation but an individual artist, sample licensing often works against the very people who intellectual-property lobbyists claim they are protecting: the artists themselves. It’s the same old song (but with a different meaning).

In the end, everyone loses: the samplers, the samplees, the uncredited musicians, and the public, which has been denied the opportunity to hear the full creative potential that digital sampling once promised. Record companies have found yet another way to make millions more off the labor of underpaid or unpaid musicians such as the Funk Brothers. Some critics believe that sampling is just a way of piggybacking on the success of an earlier, popular song, but that’s a very one-dimensional view of how people create art and music. Tim Quirk counters, “Assumptions like those use a businessman’s logic, not an artist’s,” he says. “They assume the only reason to sample is to get a head start by stealing someone else’s work. And ironically, rules based on those assumptions lead to unimaginative sampling becoming the norm, while making the kind of sampling I fell in love with virtually impossible.”

He’s talking about hip-hop songs that are dominated by one sampled hook, such as MC Hammer’s “U Can’t Touch This,” Vanilla Ice’s “Ice Ice Baby,” or Puff Daddy’s “I’ll Be Missing You,” which rewrites the Police’s “Every Breath You Take.” Built almost entirely around a looped measure of that Police song, it’s the sort of unimaginative sampling that should have been left back in Hammer Time, or at least the Vanilla Ice Age. Sometimes an uninventive or obvious sample can make for a great song, but we need more possibilities, richer options. I want Mr. Daddy/Diddy’s music to stand alongside heretofore unheard sounds and songs that are more sonically adventurous than the mainstream music of today. Given that hip-hop producers have had one hand tied in their creative process, it’s amazing that so much first-rate and inventive commercial hip-hop music has been produced in the past ten years.

Take, for instance, Missy Elliot’s “Work It”—with its played-in-reverse chorus and blippity-bloopity robot pop-rhythm track—or Mystikal’s “Bouncin’ Back”—a retro-futuristic take on New Orleans jazz. If there were fewer restrictions on licensing samples, can you imagine what those same producers would have accomplished with even more freedom? In early 2003 Tim Quirk and I had a long, beer-soaked conversation about sampling. Through the fog of alcohol, I recall his speaking about how he genuinely gets angry and depressed when he thinks about the incredible, mind-blowing music that hasn’t been made or released since the Biz Markie ruling in 1991. Like Tim, I get depressed about the current state of sampling, too, though my spirits are raised by the handful of folks who have been willing to take risks, to possibly be sued for the sake of their art. But it’s still not enough.

Just as rock-’n’-roll musicians of the 1950s and 1960s used the new technology of electric guitars as the primary way of expressing themselves, turntables and samplers are the dominant tools of musical expression today. “Anybody who can honestly say sampling is some sort of creativity has never done anything creative,” insisted Mark Volman of the Turtles. Volman drew a line in the sand, but I choose to stand on the other side of that divide along with Igor Stravinsky, John Cage, T. S. Eliot, Buchanan and Goodman, De La Soul, and Public Enemy. I want to live in a creative universe where the aural equivalent of Finnegans Wake can exist.

We don’t even need to imagine that other world, because we already live in it—at least those of us blessed with a computer and Internet access. Today, emerging technologies allow us to “write” in new ways. The rules of the game have changed, or, to put it more clearly, these technologies allow for different kinds of rules to develop. Many of us have the production tools that can create interesting and exciting works out of the old, discarded junk tossed into the garbage dumps of our consumer culture. “Tell the truth, James Brown was old until Eric and Rakim came out with ‘I Got Soul,’ ” rapped Daddy-O in Stetsasonic’s 1988 hit “Talkin’ All That Jazz.” Daddy-O was referring to the fact that few in the contemporary black music scene cared about James Brown until Eric B. & Rakim sampled him on their single “I Got Soul.”

By the mid-1980s, the Soul Brother Number One’s music was considered so old school it was preschool; he had embarrassed himself with the wretched song “Living in America,” the theme from Rocky IV. His records piled up in dusty cut-out bins and used-record racks throughout the country, ignored by the next generation of music consumers who rejected those albums as their parents’ music. But when hip-hop artists began sampling Brown’s 1960s gems “Give It Up or Turn It A-Loose,”“Super Bad,” and other funk jams, he sounded fresh again, and his music was given a new life. Hip-hop delivered James Brown’s music to a new generation, just as Run-DMC revived Aerosmith’s dead-end career when they appropriated “Walk This Way.”

Revitalizing music from the past is one of the many ways sampling and collage help to refresh and reboot a shared popular culture. There are piles upon piles of ephemeral pop-culture rubbish that litter the information stupor-highways, pieces of trash that can be recycled and given new significance by deconstructing and reworking them. The mash-ups created by hundreds of amateur bedroom computer composers, the online distribution network of underground hip-hop music, and Internet itself are all positive signs of changing times. I don’t buy into the utopian fantasies of certain cyber-geeks—computers will connect the global village and create a big happy family—but at least it’s a start. It’s time we began playing catch-up for a decade of lost music and suppressed art— overzealous copyright bozos be damned.

ART, COMMERCE, AND COPYRIGHT

Some may say that the creative restrictions I decry are an unfortunate but necessary consequence of making sure copyrighted goods are secure. Property, after all, should be protected. Although it’s understandable that individuals and companies want to seek protection for their creations, there is nothing natural or inherent about the idea that copyright is a form of private property. Such a statement might appear to defy common sense. But copyright was conceived as a temporary, limited form of legal protection, and only recently has it been reconceived by some as an unbending law that protects private property. This protection, according to the U.S. Constitution, doesn’t give the author total control over how it is distributed or consumed.

For nearly two centuries after the Constitution was adopted, courts interpreted copyright as a concept that encouraged authors to create new cultural goods that would benefit and eventually belong to our society. As I cited in the introduction, Thomas Jefferson argued that “ideas should freely spread from one to another over the globe.” Jefferson’s use of italics tells us this is something he felt strongly about, because for Jefferson and his contemporaries, the uninhibited spread of ideas, information, and culture was essential to a thriving democracy. Even though he was concerned that intellectual-property law could block the free flow of knowledge, Jefferson didn’t argue against the existence of copyright. To the contrary, he stated, “Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility.”

The Constitution’s framers wanted to avoid permanent monopolies over information and culture, so they took care to include the phrase “limited times” in the nation’s founding document.²⁷ In the congressional testimony, legal briefs, law articles, and books from a quarter century ago and beyond, it was a widespread assumption that a balance between the author and the public good was the guiding principle of the law. “Copyright was a bargain between the public and the author,” writes legal scholar Jessica Litman, “whereby the public bribed the author to create new works in return for limited commercial control [my italics] over the new expression the author brought to her works.” Copyright was designed to be porous. It was meant to be full of holes that give some freedom and flexibility to the public and other creators.

The underlying premise of this theory of copyright was to create a balance that guaranteed that the author and the public both benefited from the creation of a new work. But by the early 1980s, the “balanced bargain” rhetoric of copyright began to change, as advocates for copyright holders began to rearticulate copyright’s purpose by drawing from an economic analysis of the law.²⁸ Over the last quarter century, the dominant metaphor for copyright changed from a shared, balanced model to one of private property that needs to be protected, by any means necessary. This has done more to inhibit creativity and freedom of expression® than to encourage it. For most corporations, and the politicians whose campaign coffers they filled, this change in perspective was a very practical matter. There was no need for all that socialist-sounding nonsense about the public good, even if it did originate from James Madison, Thomas Jefferson, and other upstanding members of the white male property-owning elite.

The copyright owner, today’s conventional wisdom says, is entitled to control all the contexts in which the work is used. It may seem that we have arrived at a permanent impasse over sampling. However, Congress successfully dealt with other copyright conflicts surrounding the emergence of the phonograph, radio, and cable television. In the early days of each industry, record companies, radio stations, and cable-television companies were the copyright criminals, because their existence relied on using others’ copyrighted works. The copyright owners—threatened by new technologies and new business models—often refused to grant permission to use their property, or charged exorbitant prices to allow such a use. Congress stepped in and changed that.

Congress also made it possible for musicians to remake someone else’s song. Otis Redding—the soul singer who wrote and originally recorded “Respect,” which Aretha Franklin made famous—once mock-complained, “That little girl stole my song.” In many ways, she did. Popular confusion over its authorship runs so deep that even Prince got his R&B music history wrong. During a rant about why lesser musicians shouldn’t try to remake others’ songs, including his, Prince asserted, “Have some respect, man. If anyone tried to cover ‘Respect,’ by Aretha? I would shoot them myself!”²⁹ Franklin’s version of “Respect”—all cover versions, for that matter—exists because of legal freedoms granted since the Copyright Act of 1909.

The act established a “compulsory license” for sound recordings, which allows musicians to record copyrighted songs in whatever style they see fit, as long as they don’t alter the lyrics and they pay the copyright owner a standardized fee set by Congress. Effective 2004, the statutory rate (which increases every two years) requires a payment of $0.085 per copy of songs under five minutes. For songs over five minutes, the rate is based on a per-minute fee. So, if you sell one thousand CDs that contain a four-minute cover of “Respect,” you pay eighty-five dollars to the copyright owner. Radio stations, by purchasing another kind of compulsory license, also don’t have to get consent from copyright owners to broadcast a song, even if it’s in a context the copyright owners believe is negative. Instead, radio stations purchase a license, report what was played and pay a lump sum to ASCAP, BMI, and SESAC, the organizations that collect royalties for copyright owners.

In the case of digital sampling, the primary barriers to creativity revolve around the fact that copyright owners can: (1) censor the sampling of sounds they own; (2) demand prohibitively expensive fees; and (3) assert that all unauthorized sonic quotations are theft. Under the current copyright system, you can record a Beatles song without permission, but the surviving Beatles almost never allow sampled reinterpretations of their work. They make it clear that the Beatles are not for sale when it comes to digital sampling, because it will damage the integrity of the original songs. There’s a contradiction here. Hundreds of butchered cover versions of Beatles songs have been released that would probably make the Fab Four cringe (ever heard William Shatner’s spoken word version of “Lucy in the Sky with Diamonds” from his 1968 Transformed Man album?).

Sampling a recording and playing someone’s song with your own bass, drums, and guitar are indeed two different activities, and I’m not trying to conflate the two. However, you can denigrate the original meaning of the song both with traditional instruments and with samplers. Why should one form of creativity be free and another severely constrained? While it’s extreme and irrational to say that people don’t have to pay for any samples, it’s equally absurd to claim that all kinds of sonic quotations are copyright infringement. Even though most copyright lawsuits settle out of court, a few recent court rulings have complicated the assumption that all unauthorized samples of copyrighted recordings are illegal.

In Williams v. Broadus, hip-hop producer Marley Marl sued Snoop Dogg for sampling his 1988 song “The Symphony.” In a very ironic defense strategy, Snoop’s lawyers argued the following: Because Marl’s song contained an unlicensed sample of an Otis Redding song, “Hard to Handle,” Snoop’s borrowing wasn’t an infringement. The court dismissed Snoop’s lawyers’ motion, stating that it was reasonable that a jury might think Marl’s sample wasn’t a violation of Redding’s copyright. In his summary judgment, District Judge Michael Mukasey stated, “A work is not derivative simply because it borrows from a pre-existing work.” He also stated that “a reasonable finder of fact could nonetheless conclude that the copied measures of ‘Hard to Handle’—two measures that appear only in the opening of that composition—are not a substantial portion of the work.”

In Tuff v. Profile, Tuff ’n’ Rumble Management claimed that RunDMC sampled a drum break from the Honey Drippers’ 1973 song “Impeach the President.” District Judge Sidney Stein ruled against Tuff because the company couldn’t prove that it was the actual copyright owner, and he went on to assert that Run-DMC’s sample probably wasn’t an infringement. The court said it would be difficult to demonstrate that the sample would rise to the level of “substantial similarity” needed to prove that the new recording infringed on the Honey Drippers’ copyright. Having assessed the two songs, Judge Stein ruled that the Run-DMC song is not “substantially similar to ‘Impeach the President.’ ”

The sampling morass got even messier when in late 2004 the Sixth Circuit Court of Appeals ruled on a significant case. It involved the new copyright owner of George Clinton’s Parliament-Funkadelic recordings and N.W.A., who sampled a three-note P-Funk guitar riff, chopping it up and altering its pitch. The court asked, “If you cannot pirate the whole sound recording, can you ‘lift’ or ‘sample’ something less than the whole?” No, it said in the ruling. “Get a license or do not sample. We do not see this as stifling creativity in any significant way.”

Another way out of this stagnant sampling cesspool is to begin acting as though fair use exists in reality, not just in theory. However, even though fair use protects some forms of audio sampling, primarily parody, as a solution it’s too limited. This is why there needs to be some kind of compulsory-licensing system for digital sampling that eliminates the veto power of copyright holders or keeps them from charging one hundred thousand dollars for a sample. Because the standardized licensing fee for remaking others’ songs is based on the length of a song, it seems reasonable the same could be true for a potentially similar system covering sampling. Some might argue that this sample-licensing system would dissuade artists from making something entirely new because they can easily recycle a proven hit. Just license two seconds of Prince, and— bam!—instant hit. However, there are plenty of singles released every year that sample an old pop song but don’t go anywhere.

Conversely, there are also hit songs that resurrect a brief musical or percussive moment that has little to do with “the heart” of the original song. Len’s 1999 pop hit “Steal My Sunshine” uses as its main hook a part of the 1975 disco song “More, More, More” by the Andrea True Connection. This looped percussive piano break running through the entirety of “Steal My Sunshine”—which makes the Len song immediately identifiable—appears only momentarily in the 1970s disco song. In other words, Len found new “value” in “More, More, More” by extracting a small fragment and placing it in a new context. Some might argue that it’s not fair to have a government-related body determine the market price of, for instance, a Beatles song. After all, it could be sampled for the same price per second as a relatively unknown act. However, Congress already regulates the fees that copyright holders can demand for cover songs and radio broadcasts—yet another example of how copyright has always been treated as a limited monopoly by courts and Congress.

Compulsory licenses ensure that no owner can price competitors out of the marketplace and prevent other musicians or radio stations from remaking or broadcasting a song. This system both promotes the creation and dissemination of new works and sets limits on the powers of copyright holders, while still respecting their rights. It’s a win-win situation. However, at the present moment our copyright regime cultivates a situation where legitimate works of art can be banned, regardless of their merits, just because they quote and transform sounds. A version of a compulsory-licensing system for sampling could solve this problem. Record companies will certainly resist such a change, even though it’s the right thing to do—but then again, when has the music industry ever done the right thing on its own?