By George Howard
(Follow George on Twitter)
I, like many people, had my life altered by the Beastie Boys. I can still recall pretty much every line from “Hold it Now, Hit it,” and even still have a Cooky Puss vinyl kicking around. My affection for the Beasties never waned over the years: I went through a weird period of flying-induced anxiety that was only allayed by listening to Paul’s Boutique; I delight (much to my wife’s dismay) in dancing around the house with my two young kids to “Shake Your Rump.” So, again, like many people, I was stunned, staggered, and profoundly saddened by the death of Adam Yauch. Far better writers than I have already, and will continue to memorialize Mr. Yauch’s work (as musician, filmmaker, and activist). As but one example, Holly Gleason’s piece in Hits just killed me when she used the phrase “chronic artistic thrust” to describe the Beasties’ later work.
This phrase—“chronic artistic thrust”—so perfectly captures not only the Beasties generally, but Mr. Yauch specifically, that it acts as a signifier of their impact on the industry as a whole.
Who else but the Beasties had the chronic artistic thrust, for example, to go from the entertaining/commercially-ingenious, but, by their own admission, and subsequent actions, embarrassingly sophomoric (not to mention misogynistic) License to Ill to what has with a decided lack of irony been referred to as the Sgt. Pepper’s of hip-hop: Paul’s Boutique?
The answer: no one.
The purpose of this article (beyond the less-than-healing catharsis of writing about yet another of my heroes now gone) is to explore the idea of whether or not it is possible that any other artist—requisite chronic artistic thrust, or otherwise—could today make a record like Paul’s Boutique, and, if the answer is “no,” whether or not this is a reasonable reality.
Both License to Ill and Paul’s Boutique are sample-heavy records. However, in terms of sheer quantity of samples, Paul’s Boutique is the winner by a long shot. One of the producers of the album, Dust Brother, Mike Simpson, in the great 33 1/3 book on PB, states that there are between 100 and 300 samples on the record (Le Roy p. 45). (Here’s a site that lists a lot of the samples.)
In order to understand what the issue is, you need to grasp a bit of basic copyright law. Fortunately, there’s a ton of information about this subject on this very site. With respect to sampling, the key element to focus in on is that whomever holds the copyright to a song—the lyric and melody (visually represented by the © symbol), and whomever holds the copyright to the recording of the song—as it is performed on an album/download, etc. (visually represented by the (p) symbol)—has the exclusive right to (among other things) create derivative works based on these original works (the song and the master).
This means that only the copyright holder can, for instance, create a translation based on the original work, or create a dramatization based on the original work, or—in any way— transform or adapt the original work.
A sample, therefore, being a transformation or adaption, is a derivative work, and, like all other derivative works, cannot legally be created by anyone other than the copyright holder(s) unless the copyright holder(s) grants permission. Typically, these copyright holders only grant permission to someone desiring to sample their work if they are paid a fee and/or granted some or all of the copyright to the derivative work.
This is how it “works” now. I put “works” in quotes, because for many it does not work.
For instance, if the BB had had to negotiate and pay for all of the samples on PB, there’s simply no way it could’ve have been made; the costs to clear the samples (and negotiation times) would have made it impossible.
As a recent Slate article points out, “In the late 1980s, sampling occupied a legal gray area.” The confusion emanated, as it often does, from an asymmetrical relationship between technology and law. This does not (as so many people seem to want to insist) mean that the laws are “wrong” or “outdated,” but rather that there is a divergence between practice and application/adjudication of the law. This is not a phenomenon unique to tech; many of the horrific civil wrongs that scarred (and continue to scar) our nation, for example, were only finally addressed via application of The Commerce Clause of the Constitution.
My point is that the exclusive right to create derivatives is a perfectly encompassing “law” to deal with sampling. However, in the 80s, as sampling emerged, there existed no case law to provide guidance. This lack of guidance provided those who sampled the opportunity to take, among others, the not-unreasonable stance that sampling was defensible under the concept of Fair Use.
Without going into the details of the Fair Use defense, suffice it say that as case law eventually did emerge, this Fair Use defense did not win out. Crucial cases, such as Grand Upright Music, Ltd. v. Warner Bros. Records Inc. essentially gave those who sampled, and (and this is the important part) those who released the records of those who sampled, notice that un-cleared samples put them at tremendous risk. Thus, labels, not wanting to take on this risk, began the arduous and expensive process of clearing samples.
Unlike when an artist covers (i.e. records another writer’s work without making material changes to melody or lyric, and, yes, that’s sort of vague) a song, there is no compulsory license for the creation of derivatives. What that means is that while anyone can cover another artist’s song (if that song has been commercially released)—so long as they pay the statutory mechanical rate (currently $.091 for songs under 5-minutes in length) for all copies made, and accounts monthly—you can not create a derivative (sample, or otherwise) of someone else’s work unless you get permission, without placing yourself at risk for an infringement suit.
This creates decision making based (at least on part) on economics, rather than on artistry. Clearly, when the Beasties made Paul’s Boutique, they based their sample choices purely on artistic impact, and not on what they thought they could clear (i.e. economic choices).
After decisions like Grand Upright and others, every artist who samples must balance their artistic impulses with economic realities.
From the perspective of the person who desires to sample, this is a nightmare. The last thing they want to consider in the midst of creating an artistic statement is whether or not they can afford to clear the sample.
The argument (vastly oversimplified) by organizations who fall under the “CopyLeft” ethos is the above in a nutshell: the byzantine and expensive process of clearing samples is hindering artistic progress—the very artistic progress called for in no less a dispositive document than The Constitution of the United States.
There is, however, another side. It’s the side of the artists whose work is being sampled. Having represented artists who have written iconic songs, and have been approached by writers who have not (yet) written iconic songs asking for the right to sample a chorus of said iconic song, the motivation is clear. The artist—tacitly or otherwise—is using the more popular work to gain exposure for their own work/career. It is what it is. Vanilla Ice used Queen and David Bowie’s work. P. Diddy used Sting and Led Zeppelin’s work. So long as all parties are aware of this, and create an agreement where all parties feel there is a good and valuable exchange…no problem. Understand, however, that this is precisely what the law compels us to do.
Less easy to formulate is sampling that—while not as big a grab as, e.g., the above examples—still contributes to the new work (and if it doesn’t, why sample at all?). To understand the issue of the artist being sampled here, and why CopyLeft arguments can potentially fall short, have a look at the video below:
As can be seen from this video, artists have been sampled, and have not been compensated in any way for their work. Again, the law is meant to minimize this.
The unholy marriage of art and commerce is never an easy one, and sampling represents this perhaps more than any other issue. Now more than ever, considering a world without a record like Paul’s Boutique is stupefyingly depressing. Equally depressing is a world in which artists’ creations are not respected, and are used in a way that—because of this lack of respect and the related lack of financial reward—leads to less art being created (an artist who cannot sustain herself via the creation of her art, axiomatically creates less art).
So…what to do?
First, we must continue to frame up the relative merits of both the current copyright laws, as well as the CopyLeft approach. Second, we must educate artists about their rights. Third, we must avoid knee-jerk responses that take un-nuanced stances (all sampling should be free! All sampling should be illegal!). Perhaps some sort of compulsory license is a “solution.” It seems to have worked fairly well for covers.
Perhaps, on the other hand, the market will find equilibrium between supply and demand. Now more than ever, artists (at whatever stage of their career) must explore/exploit as many revenue-generating possibilities as they can. Allowing and facilitating their work to be sampled is clearly a way to generate revenue. Savvy artists could, for example, create an online database of their work, and present potential samplers with a price range for which they would allow sampling ($x for this song, for this amount of time, and this many copies). Of course, this wouldn’t be simple, and publishers and labels would have to work together (never an easy thing). However, if we claim that technology is causing the current laws to be under stress, why not fight fire with fire and use technology to create mechanisms that increase productivity and transparency while not running afoul of current laws?
[UPDATE: A day after Adam Yauch died it was announced that the Beastie Boys and their label Capitol Records were sued (the suit was actually brought the day before Adam Yauch died) for illegally sampling from songs controlled by a label called Tuf America, and using these samples on License to Ill and Paul’s Boutique.]
George Howard is the Executive Vice President of Wolfgang’s Vault. Wolfgang’s Vault is the parent company of Concert Vault, Paste Magazine, and Daytrotter. Mr. Howard is an Associate Professor of Management at Berklee College of Music