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.
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.