How to Make a Documentary About Sampling--Legally

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Benjamin Franzen

I recently co-produced a documentary titled Copyright Criminals, which examines the messy three-way collision between digital technology, musical collage, and intellectual property law. It aired on PBS's Emmy Award-winning series Independent Lens, played at the Toronto International Film Festival, and got a DVD release. My filmmaking partner Benjamin Franzen and I should be celebrating, but we're actually kind of terrified.

While we raised the money to license about two-dozen songs and some footage, our film nevertheless contains over 400 brief-but-unlicensed uses of copyrighted material. When I can't sleep at night, I sometimes count how much we'd be liable for: up to $150,000 in statutory damages, per infringement. 400 x $150,000 = $60,000,000. Sixty. Million. Dollars.

Why did we use so many clips? Ben and I wanted the film's aesthetic to reflect its subject matter: collage, hip-hop sampling, and the rise of remix culture. Copyright Criminals documents how hip-hop producers have, since the genre's origins, cut and pasted portions of old records into their own music. For years, hip-hop stayed beneath the commercial radar, which gave producers a lot of creative freedom to make their art however they wished. The music that emerged in the late 1980s and early 1990s often featured densely layered musical collages that were groundbreaking.

Groups like Public Enemy pushed technological and creative boundaries to the limit, crafting elaborate collages that might layer dozens of nearly unrecognizable aural quotations over the course of one song. As we document in our film, the sample clearance system that emerged in the early 1990s put the brakes on this type of music making. Chuck D once told me that a Public Enemy song that contained 20 short samples would more or less cost 20 times what it would take to sample a single chorus of someone else's song.

Why? The music industry believed that the law didn't distinguish between copying one second or half a minute of a sound recording. Therefore, record companies now insist that every fragment of sound needs to be cleared, something that fundamentally altered the aural evolution of hip-hop music. The more complex you make your sound collage, the more impossible it is to share with the world. And in the course of documenting the legal and cultural history of this art form, Ben and I are risking being sued.

One of the more headache-inducing aspects of the way copyright law is interpreted is how haphazardly it is applied in different contexts. When writing a book, quoting another book is perfectly acceptable, but quoting more than two lines from song lyrics (even if it takes less than 0.001 percent of the book's total text) might give you and your publisher a problem. If your band perfectly imitates a distinctive drum rhythm from a Bo Diddley record, no worries, musicians have been doing that for half a century. But when you sample Diddley's beat it could be a copyright infringement if you don't get permission. Inversely, you don't need approval when you record a cover of someone else's song, as long as you pay the per-song fee that is set by Congress and don't alter the lyrics. It gets really confusing.

Copyright Criminals from IndiePix on Vimeo.

When sampling, one has to deal with two types of copyright holders: the song publishing company that controls the composition (the lyrics and melody) and the record company that owns the sound recording (in other words, the recorded performance of the musical composition). Each copyright can be expensive to clear, and the costs multiply exponentially if a song contains several samples. You sometimes end up paying 200 percent, 500 percent, or even 2,000 percent of what it costs to simply record a cover of someone else's song. Sure, original creators should share in profits when it is appropriate, but each share ought to be a fraction of what the new work generates.

Northwestern University Law Professor Peter DiCola and I demonstrate this problem in a forthcoming book titled Creative License (out in early 2011 on Duke University Press). We asked what would it would cost at today's rates to clear the audio fragments that make up Public Enemy's classic 1990 album Fear of a Black Planet. We crunched the numbers, and in our conservative estimate the group would lose roughly five dollars per album. That's a loss of five million dollars on a platinum record!

Our documentary isn't as good as a classic Public Enemy album, but it shares a key characteristic: it's made from fragments of a few hundred copyrighted sources. If Ben and I tried to clear everything in the film, Copyright Criminals would be prohibitively expensive to make. In other words, we made a film that tries to educate people about the ill effects of the copyright clearance system, but that very same system muzzled our ability to show how crazy this state of affairs really is! Somewhere, Kafka is having a laugh attack.

When we started making Copyright Criminals in 2003, I approached a film music clearance professional about working on our project. When I told her that it was a documentary about the history of musical sampling, she said flat out that we wouldn't ever be able to legally distribute our film. She explained in great detail how hard it is to license sample-based songs for a film and, in fact, she used Public Enemy as an example of what goes wrong when you get multiple copyright holders involved.

The clearance costs multiply, and so can the refusals—such as when we tried to license a classic sample-based song for our film. One of the song's corporate co-owners refused us, and even though the other rights holders were willing to take our money this single veto torpedoed the deal. When we contacted the artist who wrote and recorded the track, he tried to intervene on our behalf to no avail.

Another denial came from an infamous company named Bridgeport. Due to some shady (but sadly typical) music biz shenanigans, this entity owns many of the rights to George Clinton's funk oeuvre—specifically, records by his hugely popular and heavily sampled 1970s groups Parliament and Funkadelic. The day after a court affirmed that Bridgeport controlled the copyrights to the P-Funk back catalog it filed suit against a reported eight hundred parties for unauthorized sampling.

In a page ripped straight from Evil Corporation Digest, one of those slapped with a suit was George Clinton—for sampling one of his own records. True story. "Yeah, I got sued for sampling my own stuff," Clinton told us with a bemused smile. "In fact, I still got a suit pending." After trying for six weeks to license a song that Bridgeport partially controlled, a company representative finally got back to us. The man on the other line—who I imagine was chomping on a cigar—said only, "Denied!" Before abruptly hanging up, he added, "Denied. No reason!"

In an email, Bridgeport reminded us that "any of the songs involved in the sample settlements (Public Enemy, Digital Underground, and others) are entirely separate compositions which we own a portion of and which require our approval." That's because Bridgeport now controls portions of hundreds of hip-hop songs as a result of their litigation. For instance, if you want to license Digital Underground's biggest hit, "The Humpty Dance," you have to deal with Bridgeport—as well as up to five other companies currently listed as co-owners.

Fun fact: If they sue us, the case would be called Bridgeport v. Copyright Criminals. Something is fundamentally wrong when a professor who studies copyright has problems making and distributing a documentary because the film's subject matter stands in the way. But after a lot of hard work, our film made it into the world.

So, how did we pull it off? Two words: fair use. This U.S. statute allows you to quote from copyrighted works without permission for the purposes of education, commentary, criticism, and other transformative uses. In 2005, the Washington, D.C.-based Center for Social Media worked with documentarians to develop and publish an influential document that helped strengthen fair use. The Documentary Filmmakers Statement of Best Practices in Fair Use provides clear guidelines for quoting copyrighted content in ways that documentarians considered fair.

Given that courts pay attention to a particular community's standards when deciding copyright infringement cases, this was a key factor in successfully persuading broadcasters, DVD distribution companies, and insurers to relax their stringent rights clearance policies. This made it possible for Copyright Criminals to air on television. In fact, fair use might very well apply to the many examples of transformative sampling documented in Copyright Criminals; even music industry attorneys have privately admitted this to me. One major irony of our film is that if fair use had been more firmly established for sampling twenty years ago, things might have turned out very differently for Public Enemy and others.

Obviously, not everything is a fair use, and when making Copyright Criminals we were very judicious in our decisions about what fell into this category. Also, there are some downsides to relying on fair use. It's merely a defense you can invoke after being sued, and intellectual property cases can cost hundreds of thousands of dollars to litigate. Nevertheless, fair use opened doors for us that would have otherwise been slammed shut, so I'm not complaining.

Ben and I eventually cleared the hurdles that stood in our way, but what about the other creators out there who don't have access to the same resources we did? Wouldn't it make more sense to pay a reasonable and predictable fee, based on how much the new work makes? An imperfect-but-useful model is ASCAP, whose "blanket license" makes it possible for radio stations, bars, and live venues to perform or broadcast music.

Instead of tracking down each and every song publisher and negotiating fees before a song is played in their establishment, they merely have to pay an annual lump sum. The blanket license is the reason why audio mash-up artists can play their sound collages in clubs (the same works that are illegal to press onto CD, which seems like an arbitrary distinction). A streamlined licensing structure complemented with strong fair use protections would go a long way toward fixing this broken system.

I know that many copyright owners will balk at this suggestion, because it means giving up their ability to decline a use or negotiate a price for their work. But the history of the record industry shows that substantial financial rewards can come from giving up some control (the lucrative tradition of cover songs would have been impossible if not for the negotiation-eliminating compulsory license established in the Copyright Act of 1909). This is a lesson the music industry might want to contemplate as it continues its downward spiral.

Even though these issues might seem like a concern only for hip-hop artists and documentarians, this licensing logjam affects people in all media industries. Music—and, increasingly, sample-based music—is regularly integrated into television shows, movies, videogames, and user-generated online content. The ramifications of this can be serious. For instance, in 2004 Bridgeport won a multimillion copyright infringement suit after an NWA song was licensed for the film I Got the Hookup.

The production company, Dimension Films, had no idea that the song "100 Miles and Runnin' " contained an uncleared two-second sample, but ignorance is not a legal defense. With each passing year more creators are quoting works that themselves quote from other media, something that piles up an ever taller, complicated stack of licenses—or creates ticking legal time bombs.

I hope you don't mistake this as the rant of a spoiled child who thinks everything should be free. I fully understand that creative people want to make a living from their work so they can spend time creating more art. But I also recognize that the current copyright licensing system is unsustainable. As our culture continues to be fenced off, it's more important than ever to comment on the images, sounds, and words that saturate us on a daily basis without worrying about a costly lawsuit.

What we need is a more democratic system of checks and balances developed by real people who are directly affected by these copyright problems. One important safeguard is fair use, but we also need to design a copyright system that makes sense in a decentralized world—a landscape populated by millions of independent creators. Otherwise, the much-heralded age of media democracy will merely be a hollow promise.

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Kembrew McLeod is a professor of communication studies at the University of Iowa, and an occasional prankster. 

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