Music Sampling at AU

Peter DiCola, Creative License: Exploring the Music Sampling Marketplace, Washington College of Law

Showed a clip of the movie Copyright Criminals. The related book focuses more on the licensing process. Impetus for the book: Unheard stories; discussions of albums that would be impossible to make in the current commercial music environment; Bridgeport Films case holding that any copying of a sound recording is infringing, no de minimis defense. Suggests maybe people in this field talk too much about Girl Talk, but there he is in the book/in NYT and so on because he’s a way to talk about the popularity of mashups.

How well does licensing work? Tom’s Diner DNA remix—Suzanne Vega decided to license an initially unauthorized remix, and participated in making a remix album. Interview: her manager felt that this was one of the things that allowed her to remain a working musicians. Both sides can really win from licensing—DNA gets remix, Vega gets exposure/some revenue.

Samples are expensive; can be up to six figures. Managers say: do it on just one song, because otherwise there won’t be any pie left. (Talked to 120 people in course of writing.) Being on a major label helps you navigate this system—not just resources but knowledge and ability to make negotiations happen; can be very difficult for newcomer/independent label.

Copyright owners found the right to deny permission valuable for noneconomic reasons; sampling was something different than covering—though many songwriters are no fans of the mechanical reproduction compulsory license either. Folk wisdom exists about who you don’t touch—George Harrison, Steve Miller.

Some deals just can’t be made: TuPac’s administrator can negotiate people down from 40%, but people think about a baseline of 25%, and that means that more than 3 samples doesn’t work. You usually have to have the recording—sunk production costs at least for a demo—to show to the copyright owner first; already taking a significant risk.

Musicians’ responses: one sample per track; substitutes; have a live musician replay the melody; musicians sample themselves—press something to vinyl and then sample it. Disguise or transform samples, e.g. by playing backwards—sensitive area, but it exists. Because Girl Talk’s record is not viable in a licensing environment, he gives it away and relies on live performance—you can decide you’re just not going to participate in the ordinary market. That’s a problem, pushing certain kinds of creativity to the underground sector. That’s money left on the table—a deal could be made to allow samplers to continue with their work.

Back of the envelope calculation of classic albums from the Wild West stage of sampling if they were made today—the cost is essentially infinite—sampling “Hotel California” alone would lead to demands for 100%. 275% of the composition royalties and 39 cents per album for just one song—Beastie Boys would lose $8 per album. This is hypothetical but meant to be informative about the general result—you’d lose money. No one we interviewed disagreed—no one said that everyone would bring their rates down to acknowledge the other samples.

Private reform proposals: Bridgeport perspective—increase the property right. Because of transaction costs, this is not the way forward. Private sector could make fair use more practically oriented, but no one in the commercial sector currently is using fair use for sampling. People may omit mention of their samples, but that’s not the same thing. Licensing: Magnatune, though we don’t know what its sales are: they allow sampling for a set fee. Why not a CRO? These aren’t seen as amenable to blanket licensing because everyone wants to evaluate the politics/quality/pricing for the specific song. Voluntary registry of who owns what would be incredibly helpful and bring down barriers.

Public reform proposals: A de minimis threshhold for sound recordings. It shouldn’t be zero. Clarify that §114 doesn’t mean no de minimis use. Judges could clarify fair use of sound recordings. Compulsory licensing has the same problem as blanket licensing—it doesn’t seem politically feasible given how much we heard from creators about how much they value control.

Money and control: this system isn’t working because there’s money on the table. What about a thought experiment: a reverse liability rule allowing copyright owners money or control (that is, they could pay to stop the use or take payment for it)? Grey Album: a million downloads, no money for Jay-Z or The Beatles, though it helped Dangermouse’s career.

Remix is being distributed so widely, we need a system to alleviate the pressure and allow remix to move out of the underground economy.

Jay Rosenthal, National Music Publishers Association (NMPA)

His own perspective, not that of NMPA. Represented rappers and artists during the critical period. Herbie Azor/Luv Bug—producer of Salt N Pepa etc. Worked with urban artists/producers who sampled, and represents Thievery Corporation, which has a reason for its name. And was general counsel for Recording Artists Coalition at the same time. Principles: (1) The artist has a right to be paid. (2) The artist has a right to control. (3) The artist has a right to attribution.

The book doesn’t address moral rights of artists as a political issue, not an economic one. Many artists have gained financially from sampling but you need perspectives from folks like Don Henley or Tom Waits. Copyright is the human right of the artist (attributed to the founder of Sweet Honey in the Rock).

Herbie Azor used a lot of bass tracks unauthorized, not because he was creating a new art form but because he was cheap and lazy—he didn’t want to hire a bass player and he needed to get the song done. A lot of rappers took tracks from DC go-go; one story involved a musician whose trombone solo was sampled; he heard it when he was working as a janitor at a DC school, and the kids didn’t believe him. He couldn’t find a lawyer to take the case because he had no money and died without receiving compensation. After hearing that story, Azor cleared rights. You can make money for everyone by viewing this as not just a money issue, not just an art issue, but a rights issue.

Likes Creative Commons license, as long as the artist has the right to pull the license at least prospectively (because the artist may need to do an exclusive deal). Compulsory license is problematic: setting the rates is the difficulty. Piracy has decreased the value of music and everyone is trying to keep the value high; it’s a mess. Compulsory license for covers: has gone up very little, and songwriters continually complain. And because there’s no compulsory license on the sound recording side, it puts out of whack the idea that the composition and the performance should be worth about the same. Apple deal: label gets 60 cents and pays the composer 9.1 cents. That’s wrong. Improvement in licensing could help. There is no de minimis for sound recordings, though there is for compositions. If you hear a blast of horn, it’s so distinctive, there’s so much authorship in it, it’s always copyrightable. Even if it’s transformed there should be compensation. Performers are so besieged already by the labels, radio.

Transaction costs: as time went on, lawyers did less and less. Managers started doing the deals because they became fairly rudimentary—tell the lawyers to write it up. Transaction costs were not as big as possible. Costs will be coming down because the value of music is coming down. You’ll see this in synch licenses as well as sampling.

Is this really a problem? Some artists couldn’t put out some albums. But the artist who is sampled has a different view: when you don’t ask, pay, or attribute, you’re fucking them over, and producers who really thought about it would understand that it’s not right. It’s like the Pyramids: they’re beautiful, but hundreds of thousands of people died making them, so did we really need them? It may sound like art, but it really is oppression. Even if some albums don’t come out the world will keep spinning.

Casey Rae Hunter of the Future of Music Coalition

We are interested in artist compensation, ability to reach artists, artists’ ability to participate in creating business structures. Tech is always disruptive and can change how we relate to music. Sampling arose out of urban folk expression and became a big phenomenon. I don’t feel comfortable characterizing the work of Public Enemy as cheap and lazy. Could as easily say to photographers: why don’t you just paint the thing? Market sometimes works, but friction in marketplace and uncertainty creates incredible barriers, economic and otherwise. Post-Bridgeport, you can’t build tracks in the same way. At a granular level, you can’t use building blocks of sound, and it is counterintuitive to treat the composition and sound recording differently. Fair use is imperfect and uncertain.

Given how much remixing actually goes on, we should worry about legal standards that have nothing to do with the practices of actual everyday creators.

Creators are diverse and have clashing opinions on virtually everything, including sampling.

Professor Peter Jaszi of the American University Washington College of Law

Book is a good model of ethnographic examinations of cultural production: if copyright is about promoting cultural production, we need to know how those systems of cultural production actually work—not just the music makers, but the lawyers, agents, labels, and others who are instrumental to the system.

Gives a nod to best practices—how do we get a consensus opinion from the community? What about an explicit opt-out, allowing any musician to designate a recording—regardless of ownership—with respect to sampling?

DiCola: was somewhat surprised that Rosenthal thought moral rights weren’t in the book; other audiences beat him up for endorsing varieties of artist control.

Q: what about first amendment implications?

Rosenthal: parody is fine. There is a difference between the sound recording and the musical composition. Entitlement: free speech is a right, but you can take it too far. No first amendment right to peer-to-peer filesharing. This generation thinks there’s more of an entitlement to use the work than anybody should have.

Hunter: Thinks it’s a mistake to conflate P2P with remix. There might not be a fundamental right to recombine, but here it is and it’s only going to get bigger; we do the future a disservice by not recognizing the phenomenon, even if not required by the first amendment. (I think he’s confusing the historically specific ways in which a practice is carried out, which are influenced by technology, and the general practice: “a fundamental right to recombine” describes how human culture is made, just as people used to talk face to face when that was the only technology available to them and now carry a fair amount of that conversation out on the phone or in other ways.)

Jaszi: Thinks Campbell (mentioned by Rosenthal) is not a parody case—the Court’s account of parody is weak; it’s the transformativeness that makes it fair use.

Q: First amendment/parody is a very limited subset. Fair use is not undefinable; there are a lot of cases and a lot of guidance on what is and isn’t. P2P filesharing isn’t. A pure economist would say that markets, if left alone, will function effectively, so if these albums wouldn’t have been created then they weren’t worth creating.

DiCola: A “pure” economist on the blackboard would say that markets always work. But I’m interested in transaction costs and friction in the system. Coase said all beneficial deals would occur in the absence of transaction costs, but they aren’t absent. Economists should study transaction costs, which is what the law and economics movement has done. This is where the market for samples is different from the grain market—it’s not a transparent market, which is not to say that some deals don’t happen. In terms of efficiency: that is his goal—utilitarianism is important in asking whether we’re getting the works we want. But you can’t explain the First Amendment with utilitarian analysis—even if it makes more people unhappy than happy, we still allow protests in the park. People who care about rights should care about economic reality and vice versa.

Q: how do current samplers feel about being sampled?

DiCola: They realize they’ll be the samplee, and some think they might enjoy being able to deny permission. If some neo-Nazi samples Public Enemy, Chuck D wants to be able to stop it.  They are conflicted!

Rosenthal: People change—Hank Shocklee gave blanket permission and a few years later he was filing lawsuits. People accept control over synch licenses as ordinary—you say no if you don’t like the movie, and that’s fine. That’s how the 2 Live Crew case started—the Orbison estate didn’t like 2 Live Crew.