Long before everyday people began posting their video mash-ups online, hip-hop musicians perfected the art of audio montage through a sport they called “sampling.” “Copyright Criminals,” a documentary by Benjamin Franzen and Kembrew McLeod, examines the creative and commercial value of musical sampling, and the ongoing debate about artistic expression. The film features hip-hop legends like Chuck D, De La Soul, DJ Spooky, Pete Rock, Mix Master Mike, and more. I spoke with Franzen and McLeod about sampling, hip-hop, copyright law and (of course!) money.
Q. Hip-hop music – especially in its early days – uses sampling as part of the musical composition. How has hip-hop changed or adapted since lawyers and record companies began cracking down on sampling?
Hip-hop artists had to stop making dense audio collages with multiple fragments of sound because it is economically prohibitive to do so. If you sample five songs, you have to negotiate with multiple copyright holders, which can become prohibitively expensive. This is one reason why so much hip-hop these days are made with synthesizers and no samples—or they are just made with one prominent, obvious sample.
Q. One of the biggest knocks against hip-hop music is the use of sampling. Do you think that hip-hop can be considered a legitimate, original form of music if it depends on sampling?
Yes, sampling Bo Diddley’s drum beat or a bluesy Led Zeppelin riff is different than replaying it on a traditional instrument, but these two practices are more similar than not. Just as it’s easy to be unoriginal when using a digital sampler, the same is also true for a guitarist who is copying someone else’s riff. It’s how you play it, not the instrument itself. For instance, Public Enemy and their peers typically sampled many short audio fragments, transforming them in the process. It’s hard to credibly claim that these uses are competing with the originals in the marketplace, which is what copyright law is supposed to protect against.
Q. Artists like Girl Talk create entire albums based on sampling the work of others. If an album created like this is sold, how much money should go to Girl Talk, and how much to the artists who have been sampled?
Just to license a single sample from a record, 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 (whether it be in CD, LP, or MP3 form). Each copyright can be expensive to clear, and the costs multiply exponentially if a song contains several samples. When you have many parties negotiating for their own biggest piece of the pie, you sometimes end up paying 200%, 500%, or even 2,000% of what it costs to release a song with no samples. Of course, original creators ought to share in profits when it is appropriate, but each share should be a fraction of what the new work generates, not a multiple.
Q. Can artists like Clyde Stubblefield (James Brown’s drummer, and the most sampled musician of all time) ever be fairly compensated for the sampling of their music? Should they be compensated if their work was sampled before copyright laws started being enforced?
As a matter of principle, if anyone is going to get paid, it should be the artists who played on the original song. Sadly, the case of Clyde shows that this is not the case—because it’s typically the intermediaries, the record companies and song publishing companies—who get the windfall. This has more to do with grotesque music industry practices and contract law, rather than copyright law itself.
Q. We live in a culture that has embraces the idea of the “mash-up” – everyone from YouTube geeks to CNN take music and video content from other sources and puts them together in new compositions. Are copyright lawyers going to catch up with mash-ups as well?
At the same time digital media has developed a “democratic” potential, copyright clearance has made it less so. The content industry has imposed licensing procedures on independent creators that only make sense for companies with vast economic resources. This has created a caste system dividing those who can afford to play by the rules and those who can’t buy in—an inequality that seems rather arbitrary. Why is it that one has to scale a wall of money and a thicket of administrative hassles before a project has the right to legally exist? Wouldn’t it make more sense to pay a reasonable fee to a centralized royalty collection organization, based on how much the new work makes? An imperfect-but-useful model is ASCAP, whose “blanket license” makes it possible for radio stations, bars, and live venues to allow music on their premises. Instead of tracking down each and every song publisher and negotiating fees before a song is played in their establishment, they merely have to pay an annual lump sum to one entity.
Q. In the film, you attempt to answer the question “Can you own a sound?” Did you find an answer?
Courts and the music industry answered that one definitively: YES! However, our rhetorical question is really meant to get people to start asking questions about ownership of culture and music, and hopefully begin an interesting dialogue. Our question of “Can you own a sound?” was often re-phrased to interviewees, “Should someone have the exclusive right to a sound?” Our film doesn’t provide the answers because these are very complex issues, but the best way to arrive at a solution is to engage in a conversation.