How Copyright Law Hurts Music, From Chuck D to Girl Talk

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.

Artists who want to appropriate have one major tool in their defense: the doctrine of fair use. What kind of sampling falls under this protection?

To determine between fair use and actual copyright infringement, judges and juries look at a variety of factors, such as: the length of the use, the purpose of the use, and more generally, whether the use is "transformative." A transformative use basically refers to a quotation in which you've changed the context, or altered the original sufficiently to transform it into something new. This concept has played an increasingly important role in fair use decisions of the past 20 years by courts.

And there's no reason why a court, judge, or jury couldn't consider an audio sample transformative use. But no sampling lawsuit in which the defendant has argued for fair use has ever reached a decision stage. In every instance, the defendant has settled out of court--because the case would probably go all the way to the Supreme Court, and it would cost hundreds of thousands of dollars to get to a decision. It's a much better financial decision to go ahead and work out the licensing deal before the record's released.

Why can author David Shields release a novel like Reality Hunger, which is made up from passages from other books, but musicians can't make a record made up from other records?

I had a conversation with Jonathan Lethem about this—he thinks that novelists, especially the more avant-garde literary appropriators, typically fly under the radar because they don't generate the revenue of, say, music or movie studios. He's been pretty emphatic with his editors to invoke fair use and refuse to get permission to quote lyrics. [Lethem's novel] Fortress of Solitude, for instance, has lots of lyrics woven into the text, but he made a point to not ask for permission because he felt he was transforming the context in which those lyrics appear.

But it's also true that very different rules apply in different media. If I wanted to quote another book, as I do in Creative License, I'd never think twice—I'd just do it. As soon as I quote more than four lines of a song's lyrics, though, a whole other set of rules kick in. You can get into hot water by quoting lyrics in a book.

These aren't necessarily legal rules—they're more like cultural norms. Book publishers, book editors are conditioned to be wary of quoting music, because sometimes, they've gotten burned. And the rules around quotation radically change once you move from print to, say, audio. They're arbitrary in that the people making up these rules are relying on a kind of folklore passed down from other editors, producers, or others in their industries—not necessarily what the law says. So if you quote a book in a book, you're likely going to be fine. But if you quote a song in a song, even just a short snippet, you'll likely end up with a lawsuit.

Doesn't the existing legal framework ignore the collaborative nature of musical creativity?

The old-school notion of the individual genius author is embedded in European and American copyright law—the lone individual genius toiling away until a burst of creativity creates a truly original work unlike anything else that previously exists. But we know that, in the world of music, you can't really create a new song without referring to an old song in some way. So the law itself assumes a Romantic notion of authorship, though we know this isn't how culture is produced. Culture is collaborative.

How do you think copyright law should change in the 21st century?

I think that if songwriter writes a song, they should have the right to continue to make money when it gets played on the radio, say, or used in an advertisement. But when it comes to transformative sampling, we need to acknowledge that musicians have always copied each other, and have always transformed previously existing compositions and recordings. There needs to be a balance.

I'm an advocate for a compulsory license system, which means that Congress could fix the level of compensation that rightsholders receive for sampling uses. Rather than a rights holder hitting the jackpot because their manager did a great job of negotiating this one license, getting $20,000 out of the deal once every few years, you'd have a new model that guarantees new creators who sample can get their music out and heard by millions of people. Under this system, yes, the record industry would get less money per transaction—but by creating less friction, you generate more total transactions. Record companies and songwriters would still make royalties, and musicians would be able to appropriate more freely.

Do any examples from history prove that a frictionless licensing system can work?

We can look to the 1909 copyright act, which made it possible for the cover song tradition to exist—which shaped 20th century popular music. If you look at the history of 20th century popular music, the bulk of sound recordings produced were covers, and it was possible because congress allowed for frictionless transactions on cover songs.

Think about what cultural value was added to 20th century popular culture because people had the freedom to cover and reinterpret songs. That freedom generated tons and tons of fantastic recordings—and revenue. We can have a vibrant, thriving culture—and at the same time, make sure artists get paid. We can look to the past to find fixes for the future.