A conversation with Kembrew McLeod, co-author of Creative License: The Law and Culture of Digital Sampling
Duke University Press Books
Last year, when novelist David Shields released Reality Hunger—a wholly borrowed novel that strung together passages from other texts—he received accolades from the literary establishment. Compare this to the reception of Danger Mouse's The Grey Album: The infamous record, which was spliced together from the Beatles' White Album and Jay-Z's Black Album, couldn't be commercially released without inviting multimillion dollar lawsuits.
In a new book, intellectual property scholar (and Atlantic contributor) Kembrew McLeod and copyright lawyer Peter DiCola argue that current digital copyright practices unfairly burden musicians who sample snippets of other artists' songs in their own music. Creative License: The Law and Culture of Digital Sampling begins by taking us back to the golden age of hip-hop, demonstrating how lawsuits quashed a nascent art form during its artistic ascendancy. The authors provide an in-depth overview of copyright hurdles musicians face, in theory and practice, then and now—speaking with several generations of musicians, from Public Enemy's Chuck D to Gregg Gillis of Girl Talk. In today's Internet remix culture, the authors suggest, strict limitations on digital sampling are both creatively and commercially untenable.
The book's being released in conjunction with a documentary film, Copyright Criminals, which originally aired on PBS' Independent Lens, hosted by Maggie Gyllenhaal. And though the authors advocate a more open system, they want to help sampled musicians get paid, too. The "Funky Drummer Edition" of the DVD comes with a vinyl record and high-res wav files that allow artists to affordably license beats performed by Clyde Stubblefield, James Brown's oft-sampled but rarely-compensated drummer. The Creative License website also includes a mixtape with hundreds of songs and samples mashed up with soundbites from Copyright Criminals.
I spoke with McLeod at the University of Iowa, where he's an associate professor of communications. His office contains floor-to-ceiling shelves crowded with obscure pop culture artifacts, and I took my seat next to a vintage Vanilla Ice board game and a still-in-the-box Star Trek edition Barbie doll. We discussed the legal hurdles faced by modern day audio appropriators, the reasons artists still sample, and 21st-century opportunities for copyright reform.
In the recording industry, and in some consumers' minds, sampling is "stealing." But what are some of the aesthetic or conceptual reasons why sampling is important?
Sounds can bring back memories. Some samples remind the listener of a particular era, or connect a song with a particular moment in time. Artists want to transport themselves, and the listener, for nostalgic reasons—or to provide historical resonance. Sampling can function like an audio time machine.
But there are also certain sounds that can only be accessed through appropriation or quotation. The sonic qualities of vintage, analog equipment or a crackly vinyl record can't truly be recreated through digital plugins and audio filters. You can invoke these textures, but you don't get the same sound from a rerecording of a sample as you do from accessing that particular sound source.
In Creative License, you write that sampling's golden age took place roughly between 1987 and 1992. What was it about that era that made sonic appropriation so creative and dynamic?
Record companies still thought hip-hop was a fad, so they didn't pay attention to what these artists were doing. This gave hip-hop artists the creative elbow room to run wild with this new technology and make music in whatever way they wanted without worrying about a lawyer looking over their shoulder.
Why do you bookend this period in 1992?
Two lawsuits paved the way for the litigious sampling culture we see today. The Turtles brought a lawsuit against De La Soul for sampling an element from "You Showed Me"—though it was settled out of court. The suit that really put and end to the "Wild West" era of sampling was Grand Upright Music vs. Warner Brothers Records, in 1991. Gilbert O' Sullivan's song publisher sued Warner because the rapper Biz Markie's song "Alone Again" made obvious use of O' Sullivan's original. The judge's opinion began "Thou Shalt Not Steal"—but, remarkably, cited no copyright case precedents.
These two lawsuits put the fear of God, so to speak, into record companies, who began realizing that not only were records from their catalogs getting sampled but they were increasingly signing artists who made heavy use of samples. The industry decision was to enforce a rule where, if you release a record on a major label, you have to clear every sample you use.
So say I want to legally license a sample. What do I have to do?
To legally sample a recording you have to negotiate a separate sample clearance fee with two different rights-holders: whoever owns the sound recording (the actual sound that's been fixed to magnetic tape, CD, etc.) and the song publisher (who owns rights to the underlying melody and lyrics). This takes a lot of money and time. For well-known songs, licensing fees can be very expensive—and sometimes rights-holders won't agree to a sample clearance for any price.
But it gets way more complicated when you start sampling songs that contain samples, which is increasingly the case today. If you wanted to sample, say, "Fight the Power" by Public Enemy—well, that song contains 20 samples. You'd have to get permission from Def Jam, which owns the sound recording rights, and then Public Enemy's song publisher. Then you'd have to go to the other 20 song publishers and get permission to use the song—it creates kind of a domino effect. This licensing logjam is only going to get worse and worse and worse as people increasingly sample the recent past, since that recent past is already a collage. It just becomes impossible to do all these clearances.
You suggest two influential hip hop releases—the Beastie Boys' Paul's Boutique and Public Enemy's Fear of a Black Planet—would be financially and bureaucratically impossible to release today, due to their heavy sampling.
Right. This is something people have been saying for a long time. My co-author Peter DiCola and I were able to do some economic modeling to test the hypothesis.
We figured out—song by song, sample by sample—how much it would cost to release each record. Sticking with the example of Paul's Boutique: there are about 2.5 million units sold of that record. Incidentally, a lot of the samples on Paul's Boutique actually were cleared—but they were cleared at a time, 1989, when the industry didn't really see the value of sampling yet, so the rates for copyright clearances were much lower. Today, the rates they'd have to pay would make it impossible. Based on the number and type of samples in that record, Peter figured out that Capitol Records would lose 20 million dollars on a record that sold 2.5 million units. Fear of a Black Planet is similar.