Historically, the infatuation and exigency, especially Western, of individual property right has gradually intensified while property has simultaneously branched out further and further from the products of our hands and body, to the inventions of our mind and, more recently, to the genetic qualities and personal characteristics which make every single one of us different. Along with the hyper-commodification prompted by our contemporary global capitalism, this proliferation of property into increasingly abstract and intangible dimensions of life has been facilitated by modern technology. It is a phenomenon which certainly does not exclude the process and result of musical creation, especially when this creation finds inspiration, either explicitly or implicitly, from other, secondary sonic sources. The studio-instrument, digitized music, versatile recording equipment, the Internet, file-sharing, Google and YouTube are all examples of technologies which are implicated in law and property's relation to music. However, what further complicates such a process of musical borrowing and sampling is the ambiguous motive behind borrowing, as well as the extent of adaption in the result. Was Herbie Hancock who sampled the indigenous and esoteric Ba-Benzélé music truly inspired? Or was he driven by an opportunity to exploit those with less access to legal representation? And what of those who simply do not subscribe to the exceedingly Lockean conception of a protected entitlement to one's musical creation? How much does an artist have to change and adapt the music of another artist (i.e. how much labor is required) before one artist loses the property right that another artist gains?
While the motive behind one artist's sampling, borrowing and adapting another artist's music is grounds for a rich debate on legal-ethical unilateralism and economic and cultural disparities, I am interested instead in pointing out that these modes of technology throw music's property claims into disarray, and how this disarray confuses the moral and practical justifications for music copyright. The following is a prime example of such disarray: Joe Satriani's 2008 copyright infringement lawsuit against Coldplay. Satriani accused Coldplay, in their 2008 single "Viva La Vida," of explicitly borrowing from his 2004 single "If I Could Fly." However, despite having settled the suit outside of court, with Coldplay allegedly paying Satriani an undisclosed amount of money, the claim comes laced with a telling moral irony. Namely, Joe Satriani's own use of Cat Stevens' 1973 "Foreigner Suite" in the very same song he accused Coldplay of having copied. Below are video links for each of these songs.
The question of whether sampling is “creative and virtuosic” or “parasitic and unimaginative” begs qualification, since I would argue that most uses of sampling are somewhere in the middle of that spectrum. I think the samples’ role in the song makes a big difference; if the quality of a song depends solely on it (like "Whatcha Say" does, as someone mentioned below) then it’s more on the leech end than the Mozart end (note: I really hate leeches, sorry for mentioning them, but I couldn’t think of another parasitic organism to resolve the metaphor). That said, I think the case of mash-ups really complicates that formulation. Unlike songs in which samples merely play a role amidst original material, mash-ups are created entirely from others’ music. Pretty leechy. But they can definitely have artistic merit on their own terms.
One of the most prominent mash-up artists out there, while not nearly as universally known as Girl Talk, is a guy named Peter Bull, more commonly known as Norwegian Recycling. He is (unsurprisingly) from Norway, and his stuff has ranged from the intensely boring (a straight-up combination of “Hey Soul Sister” and “Fireflies” that ruins the cuteness that was the redeeming quality of each) to the kinda boring (“How Six Songs Collide,” a well-executed if shallow mash-up of some typical I-V-vi-IV songs). So I was interested to listen to his latest, which I think is a marked step up. Here’s “Miracles”:
Now, don’t get me wrong, this is still more leech than Mozart. But I do think what he’s doing here takes more vision, since he’s creating something more than a just a series of samples. I’m a sucker for mash-ups with a point, with samples that combine to make a new lyrical statement. For instance, in “Miracles” our remixer uses a verse-chorus-verse-chorus structure that makes it more like a “real” song. The lyrics of the chorus borrow from at least eight songs: “I believe in miracles / All over the world / I still believe / Does that make me crazy? / I believe in miracles / All over the world / You must fight to keep them alive / I see miracles / All over the world / In this moment now, capture it, remember it.” This combines MJ, B.o.B., Britney, Gnarls Barkley, “Eye of the Tiger,” T-Swift, Jason Derulo and others. Yes, the song still banks on our recognition of these famous songs and our surprise at hearing them in an entirely different context. But the masher had much more agency in determining the effect of the song. It’s definitely strange to hear the overtly sexual “Hit Me Baby One More Time” or “In My Head” manipulated in lyrics meant to be poignant and uplifting, but that irony is part of what makes the song more effective to my ears. Bull is recycling, as his stage name suggests, but he does so to create something more his own. It might not be virtuosic, but at least it had a point beyond "Oh, I know that song!" And it’s probably going to be stuck in my head all night.
Copyright is an extremely gray issue for me, and I am positive that I am not alone. Basically I just want everyone to be happy. I want artists to be compensated for coming up with original material, but I don’t want creativity to be stifled in terms of the use of other material, because I truly do believe that sampling and mash-ups can be seen as a form of original creation. Maybe it is extremely pointless for me to state that wish, but I feel like there is definitely a way to accommodate both of these entities. I guess the only ones left in the dust would be the vehemoth that is the record company, which doesn’t bother me as much. But seeing as we don’t live in this ideal world of happiness, the copyright issue is still here and is still making people sad, mad, confused, you name it!
We live in a society that is like a giant constantly morphing amoeba when it comes to the music industry. Those who have power are continuously striving to put a level of tangibility on the concept of music in order to have something to base their claim on the profits of a song on something. The copyright of music is fairly recent, because before there was the ability to record, there was not really a need for all the fuss. Today however, it really seems like we need to do some revising of the copyright law because the phenomena of sampling, covering, and mashing is here and I don’t think it’s going anywhere. So instead of forcing those who want to participate in this form of music making to tip toe around the specifications of the law, steps should be taken to lessen the restrictions that impede the usage of music recordings. With such a ridiculously enormous amount of music in the world, it just seems like the next step in the quest for creativity would be to open up the plethora of sounds for all to use. I mean, the original song is still always going to exist, and I would actually bet that it is not uncommon for an original song to gain notice and popularity due to its presence in a sampled rap song, or a mash up. People in the rap listening demographic might never have been exposed to Lou Reed’s “Walk on the Wild Side” if A Tribe Called Quest hadn’t sampled it in their song, “Can I Kick it?” The same can definitely be said for Girl Talk and the collection of songs from a vast array of genres that he includes in a single track. Though I must note that I have my qualms with Girl Talk and I guess all sample artists for that matter, because if for example, you are going to include a sample of THE BAND, all I’m going to want to do is blast “The Weight” instead of finishing listening to the mash-up, which goes along with the theory that mash-ups and sampling have the ability to make the songs that they are taking from more popular! I guess it really is possible for everyone to be happy? So music has entered into a new and futuristic era, and all we can do now is wait for the law to follow, and meanwhile, keep circumventing the issue, it’s what many of us do best!
If online views were sales, Shakira’s “Waka Waka (This Time for Africa)” would today constitute a twenty-one Diamond Album release. With just shy of 219 million plays on YouTube alone, the official song of the 2010 FIFA World Cup constitutes the fourth-most popular online video in the world, and easily the most popular music video targeted at a global, rather than generally American, audience. By June 17, the music-industry tracking company Billboard reported, the song had topped the charts in sixteen Latin American and European countries and in South Africa. Shakira became, by listenership, the most popular Latin American musician in the world.
Yet the song is primarily not hers. Described as a “sampling” of an earlier African hit, “Waka Waka” takes its beat, refrain, and underlying African lyrics from the song Zangaléwa, produced in 1986 by the Camaroonian band Golden Sounds. Rather than a basic tune or hymn from which Shakira created her own musical conception, Zangaléwa is similar to Waka Waka to the point that an uninformed listener might perceive the former as a poorer-quality “Third World” imitation, or even unauthorized reproduction, of the global hit.
The Golden Sounds song begins with the following verse:
Tsa mina mina eh eh Waka waka eh eh Tsa mina mina zangalewa Ana wam ah ah Zambo eh eh Zambo eh eh Tsa mina mina zangalewa Wana wa ah ah
Those are also the lyrics to Shakira’s chorus. The beat and the melody are the same between the two songs. Both songs’ music videos open in a similar manner, with crowds in a stadium watching some central activity intently. Even the title of Shakira’s work is taken from the chorus of the Golden Sounds piece. Yet, while Shakira’s song does officially feature the South African band Freshlyground, her recording label fails to mention Golden Sounds in either its own website’s written articles regarding the song nor in its paid promotional press-releases. Shakira’s official website, Shakira.com, states only, “The chorus borrows from a favorite Cameroonian marching chant made popular by the group Golden Sounds.”
Two problems immediately arise. First, given the degree to which Shakira uses Golden Sounds’ prior work, a single one-sentence reference to the band is insufficient, making it difficult for listeners to locate the source of Shakira’s inspiration. Second, and more importantly, the content of the recognition is deceptive. “The chorus borrows” and “made popular by” together contain three fundamental misrepresentations: much more of “Waka Waka” is taken from Zangaléwa than its chorus, the content is “lifted” or at least “included” in “Waka Waka,” rather than “borrowed,” and Zangaléwa was largely created, and only partially renditioned, by Golden Sounds. Undoubtedly, Shakira, her promoters, and her recording label are trying to obscure, if not effectively hide, the degree to which she not only was influenced by but also used verbatim the earlier work.
The reason for this may be simpler than a desire to bask singularly in the adoring international spotlight. Though the thought of becoming a globally transcendent artist, known for producing a work with the capacity to unite nations and spread peace through common culture and interest, may be the highest aspiration of any musician, money is also a powerful motivator. By excluding Golden Sounds from significant recognition, Shakira and her attendant sub-industry were better able to reduce pressure to share with them the profits of their joint work. Despite the majority of Shakira’s song, with the exception of some additional melody and the fairly simple and purely Western non-refrain lyrics, coming from Golden Sounds, Shakira did not even seek permission to use their work. Golden Sounds member Jean Paul Zé Bella told the Cameroonian magazine Cameroonechos that his band was surprised even to hear the Shakira song, saying neither she nor her representatives had sought permission for the piece. The website AfricaNews.com re-printed some of the interview on July 15:
“They needed to take permission from us first,” Zé Bella said. “Now that it has happened, we need our share of the sales and rights, and we have started the procedure right from Cameroon to South Africa.”
Assuming Golden Sounds is describing the situation honestly, Shakira stole their song and reproduced it as her own, reaping millions of dollars in song sales and probably even more in corporate licensing and advertising rights. The cases raises interesting questions about the nature of copyright law. Golden Sounds itself notes that it did not create its song entirely outright. As the Camaroonechos interview continues, courtesy of AfricaNews:
According to Golden Sounds’ Zé Bella himself, it was a marshal chant sung by Cameroonian sharpshooters during the Second World War. But it had remained a folk-song until they (Golden Sounds) waxed it into a regular studio album.
Even the original copyright bearers derived their song from an earlier source. Such is the case with most music: few musicians ever formulate a melody, rhythm, an series of lyrics without at least the subtle recollection of earlier sounds that appealed to them. With the exception of infants and others unexposed to much music, virtually all creators of music derive their products from sounds, and sounds compiled into single cohesive units (songs), that they have heard and found appealing and worthy of imitation.
Thus, to blame Shakira for basing her music, and especially a song intended to appeal culturally to a South African and global audience, is absurd per se. The question is where one draws the line between inspiration and theft. For a basic standard, I would suggest that a song becomes one’s own when it is primarily identifiable only in its latest form. In other words, if a listener could not identify specific prior works that make up more than a distinct minority of the new song, then it could be considered an original work. On the other hand, if one could attribute most of the contents of a song to one or more earlier works, it would deserve to be regarded as a rendition or compilation of earlier works. When the owners of those prior copyrights have not authorized the use of and been compensated for their work, or when the original piece is in the public domain, the producer of the later rendition would not deserve to copyright his or her newer work. By that standard, Shakira’s “Waka Waka” does not deserve the legal protection of a copyright. Even though few could call it an original piece in any sense once having listened to the Golden Sounds original, the law is concerned only with whether the original producers have authorized reproduction or assumption of the work for resale. In Golden Sounds’s case, that has not happened, and Shakira has effectively pirated their popular song. Thus, “Waka Waka” provides a globally significant, high-profile case of copyright infringement.
Shakira’s theft is more than mere legal infringement, however, because her action, as supported and likely authorized by her agents and label, smacks of calculated copyright abuse. Epic Records, which produced “Waka Waka,” is an American subsidiary of Sony Music Entertainment, based in New York City and protected by United States copyright law. Global Sounds is based in Cameroon, protected by the WIPOnet Coordinator of the Justice Section of the Cameroonian Ministry of Culture. The online contact for the coordinator’s office is an email address for Alphonse Bombogo. Assuming a normal tort process, Golden Sounds stands virtually no chance of ever recovering significant royalties, much less rights to all prior income from the song and even partial ownership of the “Waka Waka” copyright. As non-U.S. nationals, Golden Sounds’s members lack the legal standing to file a suit in U.S. court, and, barring a decision by the World Trade Organization, with compliance from the United States, neither Shakira nor her label will be compelled to pay the band. As an example of imperial power, Shakira has used the extraordinary disparity between her legal power and that of her source to protect her unadulterated income stream.
The case presents a certain irony. A Colombian artist, made wealthy largely through her self-projection as a culturally revolutionary and somewhat ethnically distinct artist in the United States, has produced a song intended to celebrate the great unification and equalization of the nations of the world in the World Cup. Her product is a tribute to African music, conveying a cosmopolitanism and celebration of the long-oppressed people of the continent. She largely plagiarizes a true African work and then uses the economic power of the West to deny the real creators any access to the song’s income while keeping it for herself.
Shakira may not personally be at fault. Using earlier works is extremely common in modern pop and, in small doses, almost necessary in any form of musical production. Yet even she should realize that the extent to which she used Golden Sounds’ music is extreme, and her label, and its executives, lawyers, and producers, bear responsibility for musical theft. Ironically, given then disproportionate strength of United States copyright law against that of Cameroon, a legal institution meant to protect intellectual property is now guarding its thieves. A good first step toward rectifying that situation might be to return it to its owners.
B.o.B is one of the new rap nerds, sampling diverse sounds and spitting about more than the streets and the good life. His hit song “Nothin’ On You” was an adorable shout-out to a girl whose inner beauty inspired a tune that anyone from age 5 to age 50 could sing along to. Common among today’s rap nerds, B.o.B de-emphasizes the street image and takes on a more conscious, accessible image. Like Kid Cudi, B.o.B goes eclectic, using indie artists and diverse sounds to create his album. “B.o.B: The Misadventures of Bobby Ray” is a journey across his mental universe, as evidenced by his cover art, featuring some galactic going-ons. One of my favorite tracks by him, in which he is speaking out against the thug lifestyle is entitled “The Kids”. My favorite artist, Janelle Monae, is featured on the track. The lyrics describe his forays into the street lifestyle, his assimilation into and transcendence out of that mindset. Mental imprisonment is the theme of the work, but despite its hook (The kids don’t, the kids don’t stand, the kids don’t stand a chance) the work comes off as ultimately hopeful.
Observant omnivorous music fans will notice immediately that “The Kids” by B.o.B uses a sample of Vampire Weekend’s “The Kids Don’t Stand a Chance”. The prominent bass and drum hit used in the intro are in both songs. In the V.W version, the lead singer starts singing over this line, before a brief instrumental break between the first refrain of “The Kids Don’t Stand a Chance” and the next verse. Soukous music is heard, as a little ascending riff interlocks with an electric guitar on the melody and echo-y steel-drum sounds. The next time the refrain is introduced, the instrumental break features a violin in addition to the other instrumentation. As I listen to this song, my first thoughts are about how inauthentic the sound they are representing is to their cultural background. The uneasy declarations of cultural appropriation come into play. Their creative work is obviously inspired by music that is unheard on mainstream radio, or outside of world music circles.
Inherently, borrowing from various musical traditions can only make music better, but I was hard-pressed to find any information about where they drew their inspiration from, much to my dismay. In interviews, they mention soukous music being integral, which one can hear. My knowledge gained in this class informs me that soukous music and other Congolese music are a typically exported musical form. After the brutal history of colonization, the Congo’s painful past features a one-way exportation of goods, in equally valued resources are not poured back into the country. Thus, the appropiation of music produces a certain amount of discomfort. Personally, I think whatever genre inspires you as an artist should absolutely be incorporated into your sound. However, what I don’t see from Vampire Weekend is a gallery of sounds, a list of influences or anything else to let me, the informed and active consumer, expand my horizons through original lenses.
The last interesting point to make about remediation is the cover by Miike Snow. Layers? Soukous music, a Congolese form of music, is recorded and discovered by college kids at Columbia, incorporated into a sound that is remixed by a Swedish artist who makes the sound more relevant to local audience by electro-techno affects. It is now even more difficult to divine what specific artists and sounds influences the creation and production of the track. The kids are having a difficult time following the chain of creation and consumption.
In the world we live in today, where information and sound to move so quickly over such long distances,it is not only becoming easier for remixes to be made it is also becoming harder for record companies to maintain strict control over copyright infringement. Some of the forms of music that are being popularized globally at this time include hip-hop, baile funk, and mashups. These forms of music rely heavily on sampling and recreating music from other artists, which could potentially create many problems for these artists who borrow from other musicians. What and who has the power to make borrowing a problem? Copyright laws and the corporations who "own" the music.
Copyright laws ultimately ensure that big corporations such as Disney, Viacom, TimeWarner and General Electric, with the help of the lobby groups: the Recording Industry Association of America and the Motion Picture Association of America, protect their “intellectual property”; thus, controlling the money that music makes (Brett Gaylor's RiP! A remix Manifesto). While the copyright laws are supposedly put in place in order to protect the ideas of musical artists, they benefit these corporations instead. The term music industry in itself is indicative of a monetarily focused business. While there is nothing wrong with wanting to make money from ones inventions or creations, in the case of the music industry those benefiting most are powerful business men, not artists, not creators.
As Simon Feld points out, music has always been a borrowed , added to and rearanged. The revolution of how this borrowing is perceived is due largely to the objectification of music through recording. The evolution of technology has made copyright laws easier to apply to music and sampling in particular. Recycling and innovating sound is now tied up in legalities. Music is an art form and is supposed to inspire and be the language of the world. Through music people express themselves and allow other people to take part on their creativity. This exchange between musician and listener is transforming as listeners become musicians themselves. This new relationship between artist and audience is being constricted by copyright law.
I enjoyed watching Christopher O’Riley perform his unique arrangements of Radiohead in Buckley Hall, and the idea that some would consider this to be unoriginal and unable to see how the original artists were an inspiration to him and not merely victims of a copyright infringement would now be quite absurd to me. Similarly I don’t see Girl Talk and his mashups as less original than the original artists. His music is creative and clearly admired by fans. Watching him in the film RiP! A Remix Manifesto allowed me to witness the process by which he creates music and the enthusiasm he has for the mashups he creates in itself gives him the same recognition as any other artist.
In a capitalist society such as the U.S., it makes sense that we'd be hyper-obsessed with property and ownership. The idea of "intellectual property" ties in perfectly with America's individualist ethos. We don't want others taking what's rightfully ours, and we sure as hell don't want them making money off of what's rightfully ours. But how can you stake a claim on an idea? Considering how music has been a part of human society since the dawn of time, is it even possible to claim a riff, a melody, a song as one's own? How can one make music without being influenced at least partially by the music one enjoys listening to? Pretty much every popular music genre borrows heavily from previous genres. So where do we draw the line? What constitutes intellectual theft, and what doesn't?
There really is no way to answer these questions. And because of this, it is my belief that whether or not one chooses to sample/copy/borrow/whatever from another musician should be a decision left to that person's conscious and not the legal system. The end product is what matters most. And when that end product is a creative, unique piece of work, then copyright law is merely a stifling of creativity and information.
For the sake of this argument, let us consider direct sampling of recordings rather than performing/recording imitations of other songs. Sampling is a technique used heavily in genres such as hip-hop and techno, and many would argue that this practice is parasitic and lacking creativity. I think it's safe to say that a lot of this harsh judgement has to do with these people's inherent distaste for these genres. (Hip-hop, for example, often reflects a lot of aspects of urban culture(violence, gangs, drugs, hating police, etc.) that can upset and anger listeners from more affluent backgrounds. Plus, it has swearing and stuff.)
Regardless, I believe that sampling can be very creative if done well. Consider this song by Isaac Hayes entitled "Hyberbolicsyllabicsesquedalymistic". Note the song's mood and message. (If you are at all familiar with Isaac Hayes, the song's content won't surprise you at all).
Now check out this song by Public Enemy, my favorite rap group of all time. The song is called "Black Steel In The Hour Of Chaos", and that high-pitched piano you hear is sampled from the Isaac Hayes song.
Could you even recognize the sample? Public Enemy morphed that brief piano riff and made it intense and jarring. How can you even compare this dark story of a prison break to the smooth sweet talk of the original song? Here is a perfect example of musicians taking one song and making it into something completely new and original. Public Enemy's sampling of Hayes's song was creative, not parasitic. So if we can conclude that, in many cases, sampling is indeed creative, then we should also conclude that sample-based music has artistic merit. While it may, according to many, be unethical to sample other artists' work, the product that can come out of it can be invaluable. Why smother it over a 2-second sound bit?
Modern copyright law is implicitly defining what it means to be musically creative. By focusing so narrowly on the tangible aspects of music—compact discs, scores, written melody and rhythm, etc—copyright law has objectified music in an unprecedented way. In copyright’s obsession with objectification, it overlooks the reasons why music is so meaningful to all of us. This is a dangerous path because limiting this universal, wonderful, beautiful language is limiting the exchange of feelings, thoughts, expressions, and sentiments between individuals, thereby limiting our experience of being human.
Christopher O’Riley’s show on Friday night is a testament to this claim. The show was fantastic, full of Elliot Smith, Nick Drake, and Radiohead covers. I am going to focus on his Radiohead covers. I was surprised at how close to the original O’Riley stayed in his Radiohead covers. Having seen pianist Brad Mehldau in a very similar setting cover Radiohead’s “Paranoid Andriod,” I expected there to be a certain amount of ebb and flow between the original song and O’Riley’s creative genius. To my surprise, O’Riley played the Radiohead covers experimenting very little; in fact, if one were to see Radiohead’s score of “Let Down” or “No Surprises” next to O’Riley’s score, the two would be very similar. Yet, this did not diminish his performance, as I along with many of my peers found his renditions moving and beautiful. Because the tangle aspects of his music, namely the scores, are almost identical to Radiohead’s scores, by modern copyright law the two renditions are actually the same song—copyright law ignores the profound differences in the intangible between the two— and therefore probably illegal for O’Riley to make money off of via his performance and CD (This of course, as the RIP documentary points out, is also dependent on how upset Radiohead and Thom Yorke felt about his covers).
Radiohead’s version of “Let Down” and “No Surprises” invoke completely different feelings than Christopher O’Riley’s versions. The cover wasn’t meaningful to me because the melody and rhythm are inherently moving, rather it was his all the components of his individual performance—including his body posture, his facial expressions, emphasis on certain parts of the song, the timbre of the piano, choices in instrumentation—that together moved me. One need only listen to the many Radiohead covers on youtube to further emphasize the importance of the intangible in music and its relationship to our enjoyment of music. Listen to Radiohead’s “Paranoid Android” back to back with Sia’s haunting version, Brad Mehldau’s exploratory version, and Christopher O’Riley’s straight version, or listen to Radiohead’s “No surpirses” back to back with Regina Spektor’s simple version and Christopher O’Riley’s sublime version. Reflect on why they are meaningful/beautiful and especially on the feelings they instill. Moreover, explore why one would come back to listen to this specific artist’s version of the song rather than another’s version. All of these reflections would culminate in a singular truth: that music’s power resides within the intangible, within all that cannot be written down ranging from the smallest perceivable difference vocal inflection to the differences in the timbres of the same type instrument. Copyright law fails to recognize this as any part of music, let alone as being one of the most significant parts Because of this, there are now huge limitations on creativity, especially within the sampling world, with respect to music. The legitimacy of a cover in copyright law should be dependent on the differences in the intangible. If the song makes the listener feel differently, think differently, or even of his or her experience of the listening to the song was different in any way, the cover should not be upheld to copyright punishment. While this would in many ways create a new grey area, it would be far better than today's system of creating music under laws which don't do justice in defining music.
I am a huge fan of sampling songs, mashups, and remixes. Many of my favorite songs are technically not legal according to copyright laws. The copyright clause in the United States Constitution states, “The Congress shall have power… To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The ideology I see wrapped into this clause is furthering through limitation, the encouraging of creation by restricting the possible product. The purpose of copyright laws is to protect the original artists. I understand this purpose but while copyright protects, it also causes harm. Copyright of music completely objectifies a sound. It makes music an object that is intended to be profited from. I believe that while the intentions of protecting an original artist may be true, copyright centers around money not the protection of artists.
Music becomes a material in which its purpose is to be sold and be profitable. This goes entirely against the principles that are music and the principle of art. Music is an art and science. It is different from all other forms of art because its medium is intangible. Musicians express their views, ideas, and creativity with sound. By objectifying this expression and turning it into something tangible and governed by law is to change the nature of its being. Also as we saw in a Remixers Manifesto copyright laws are often written and enforced by people that are ignorant of practices that test the boundaries of the law. A good portion of the time that law suits around copyright occur such as illegal downloading, it is the record company that profits not the original artist whom copyright theoretically protects.
For some reason the lullaby we listened to last week sticks in my mind. When I think about the lullaby in the context of copyright and recording I’m troubled. Firstly the very recording and the fact that we were able to hear it feels wrong. The lullaby is meant to be an affectionate sharing between a mother and her baby and listening to it feels like I’m tainting this special relation. This lullaby is a part of a culture it has no set author nor was it ever supposed to be recorded and sold. Then when this lullaby appears in the Deep Forest Song and the Jan Barbarek song it is impossible for it to be protected by copyright laws because it does not have an original author. Someone else not at all related to the origins of the song is profiting. The applications of copyright laws are conditional and inconsistent because they are not developed in a way that can accommodate the vastness of music and musical practices. I believe copyright laws objectify music and attempt to force music into the procedure based manners of American law. Creativity is far from procedural and it is here where the problems with copyright arise.
I find the notion of musical copyright and the protection of intellectual property very intriguing because it there is so much grey area. A lot of this grey comes from the fact that music is unlike many other other types of intellectual ideas. I mean, apparently you can steal chord progressions, but you can't steal bass lines (cough Vanilla Ice). Or maybe you can, considering The Beatles took the bass line from Chuck Berry's, “Talkin' About You” for their song “I Saw Her Standing There” and as far as I understand haven't payed royalties. I feel like while McCartney wasn't right for just lifting the bass line, the two situations reflect the relationship between creativity, ownership and copyright. I'd like to discuss the ways sampling can be very creative and virtuosic, and compare it to examples when it borders on parasitic.
First, lets talk about what I think makes a good/creative use of a sample.
On a sonic level, this is not the best use of sampling but creatively, I think it's genius. Granted, most of my appreciation is because of the novelty of the source material (The Legend of Zelda) and perhaps because I've never heard the original song (I showed this song to a friend who really liked the original and never played the video games and he wasn't enamored with it), but that doesn't defeat the fact that this is a virtuosic use of sampling. The first time I heard the song I was very much geeking out at this crazy notion of video game music can be used to make beats, and not only that, ones I could groove to. One reason that it's great is because the entirety of the track is made using about 10 seconds of a sound effect that used to indicate you opened a treasure chest in the Legend of Zelda games. It's not like this guy is sampling a famous Queen song, he's thinking out of the box (or should I say treasure chest?) about where people can take samples. Then the fact he makes nearly 4 minutes of solid beats with that tiny slice of sound. While the beat is a creative use of sampling, the artist obviously couldn't sell the song because he doesn't change the rapping in the song.
Now, contrary to this is Jason Derulo's song “Whatcha Say,”
I find the sampling to be rather uninspired. The chorus is just a higher produced version of the Imogen Heap song “Hide and Seek” and is definitely the catchiest part of the song. Perhaps Imogen Heap really liked the idea of her song being sampled, but I see the use of her song as Jason Derulo cashing in by using a super catchy hook that no one had really heard before in an otherwise mediocre song. What I feel discredites Derulo even more is the fact that the actual hook sampled was somewhat brought to the publics attention via an SNL skit made in 2007.
These examples highlight the relationship between creativity and ownership, which then applies to copyright. I'd say the more creatively someone uses a sample, (and by creatively I suppose I mean, in a way one typically wouldn't expect) the more claim to ownership the sample user has to his song. One way to look at how much one should pay for a sample is how much of it they used. So in the first example Nintendo owns the entire song because the beat is being used throughout, and Jason Derulo owes Imogen Heap about 33% because her song was used that much. I believe, on the contrary that Team Teamwork (the people behind the first song) would pay a lower percentage of the profits for that song for the Zelda music than Derulo would pay to IH because of their creative use of the sound clip. Overall, a song is yours as much as you make it yours.
Our discussions of copyright, intellectual property, creative inspiration and sampling have revolved around one central idea. Thousands of mainstream and indie artists, as well as fans have functioned for years in the legal limbo of sorts that is “fair use.” The advent of musical sampling and download software over the past 10-15 years has made getting your favorite song for free and using it extremely easy. This new wave of technology has led musical production as a whole to come full circle. There is hardly a mainstream pop, rock, or hip-hop track out today that hasn’t been “inspired by” or sampled from another musical work. As you can see any day on YouTube, there are thousands of renditions, covers and musical samples of obviously copyrighted music. Thousands of artists and fans alike have been blatantly circumventing the full extent of the law in the name of creative exploration and discovery. During our discussion of sampling and finding musical inspiration, I kept asking myself one crucial question. How is this possible? How do people like Jay-Z , Kanye West and namely Girl talk get away with “sampling” in the name of musical evolution and creativity?
In my opinion, there are two main reasons for the ubiquitous circumvention of the current copyright law in popular music. The first is the usage of obscure samples. Often rappers get away with sampling music and creating derivative works (in music label jargon) because the samples are so obscure and layered. Furthermore the original owners of the sampled work don’t really care at this point or are so underrepresented that litigation would be pointless.
Who is Bobby “Blue” Bland? Well he is not totally obscure. He actually is still alive, at 80 years old. He was inducted into the Rock and Roll Hall of Fame (Yay Cleveland) in 1992 and received the Grammy Lifetime Achievement Award in 1998
Hmm Hova, well I guess you won this one. Here is a track of the Blueprint III by Jay-Z, which sampled Mr. Blands hit and actually shares its title.
The second reason that popular artists get away with so much obvious sampling is the “fair use” clause of the U.S copyright law. So what is ‘fair use”? Currently the “fair use’ clause is used by so many artists as a trump card of sorts. This happened because very few people actually know what the fair use clause states. So what does fair use actually say? From the tone of the narrator in Remix Manifesto and countless other people I’ve heard I thought finding the content of the fair use clause would be extremely difficult. But after a quick Google search, I found it in its entirety.
One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the copyright law (title 17, U. S. Code). One of the more important limitations is the doctrine of “fair use.” The doctrine of fair use has developed through a substantial number of court decisions over the years and has been codified in section 107 of the copyright law.
Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:
The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
The nature of the copyrighted work
The amount and substantiality of the portion used in relation to the copyrighted work as a whole
The effect of the use upon the potential market for, or value of, the copyrighted work
The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.
The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”
Copyright protects the particular way an author has expressed himself. It does not extend to any ideas, systems, or factual information conveyed in the work.
The safest course is always to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission.
When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of fair use would clearly apply to the situation. The Copyright Office can neither determine if a certain use may be considered fair nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney.
So as it stands today fair use of a copyright music occurs when the music is used in a critique, a scholarly work, clarification of an author’s observation, a parody, a news report, the illustration of a lesson, or judicial proceedings. These seems pretty clear to me. But the law starts creating the gray area in which so many artists operate, due to one major contradiction. Thought copyright law seems pretty standard, the contradiction arises in this excerpt, “The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission.” In my opinion this is where artists such as GirlTalk run wild. Since there is no exact formula that shows the difference between fair use and copyright infringement when it comes to music, every debated case has to be examined on its own. To put it simply the “fair use” clause of our current copyright legislation has become overused. I think sampling is a great thing and leads to some of the best music of our time. What I don’t agree with is people substituting someone else’s creativity for their own. The line between infringement and fair use is a tight one to walk in today’s sample based music industry, but I think far too often mainstream artists fall onto the wrong side of this line.
There are certain definitions for artistic re-creation. One of which, just doesn’t suffice in explaining the artistic methods that go into creating new music.
Cov·er: n. - A recording of a song that was previously recorded or made popular by another.
When looking at the Soviet Estonian recording versions of popular 1980s songs, I found myself much more troubled than when I hear usually hear covers of songs. They clearly were translating the lyrics, but it felt as though the artists were striving for the same sonic song. Prof. Engelhardt made the point that even some of the lyrics were chosen to mimic the sounds of the original track. This kind of blatant mimicing of the sonic qualities of the track did not sit well with me. It appeared that the artists were hoping to duplicate the sound of popular artists to sell well and make money. However, this is not the only way to make a cover.
Radiohead - "Subterranean Homesick Alien"
Christopher O'Riley - "Subterranean Homesick Alien"
I love how the radio host refers to “Subterranean Homesick Alien” as “interpreted by Christopher O’Riley” after Mr. O’Riley performs his piece. This is a great way to describe how covers can be made into separate artistic pieces. I hear interpreted as meaning from an interpreter. If you’ve ever studied another language, you know there are myriad ways of saying the same thing, each with its own separate, subtle differences. If we look at a song as a language, then the focus is on the translation. Each song can be translated in a different way, with the artists being the interpretors. Ironic as it may be with my criticism of the Estonian bands and their translation of the lyrics, music is more than just the words. If you change the words, but the sonic piece is too similar, then I do not see how there is a new artistic creation made. Christopher O’Riley drastically changes the emotion and flow of the song by translating the piece onto piano and implementing his classical background. No one could argue that Mr. O’Riley’s piece is too similar to Radiohead’s to merit it’s creation as a work of art.
The differences I see might be easier to recognize on a more popular piece.
Jay-Z (feat. Alicia Keys) - "Empire State of Mind"
Jay-Z and Alicia Keys provide a song that has a certain aesthetic to it. It has the layering of the strong vocals above rich bass and drums with the piercing piano that creates the idea that New York is a city with depth and a powerful soul.
Jackson Harris - "Empire State of Mind"
Jackson Harris provides a different glimpse at the same song. He clearly views New York as home. The warm acoustic guitar with only light accompaniment underneath of a light piano and drums makes you feel cozy and at home.
Glee - "Empire State of Mind"
While I’m not endorsing the Fox show Glee as the prime example of artistic creation, their primarily A capella nature and unique pop style transforms their covers into different sonic creations. Their cover is sonically more fun and light. The choral element makes you feel like dancing or singing along. They toe the line of mimicking Jay-Z too much, but their replacement of much of the piano and bass with vocals makes up for that problem.
The issues that arise with the Estonian covers versus the covers I have present means that we have either have to change the definition of cover to imply an artistic reinterpretation, or we have to create an entirely different category for these types of musical translations.
Is sampling creative and virtuosic or parasitic and unimaginative? Sampling is the essence of audio synchronicity and of many good hip-hop songs I love to listen to. I see it as a creative tool with a lot of potential to forge connections that one might never have made otherwise. Sampling, if done well, can be as inventive and beautiful as the ‘original’ music. Often, sample-based recordings can eclipse the originals, but usually they offer a new perspective, or create something so radically new that the listener doesn’t’ even realize there was an incidence of musical “borrowing” taking place. I was completely unaware that one of my favorite songs, M.I.A’s “Paper Planes” uses the rhythm from “Straight to Hell” by The Clash to form the backbone of the song. A case of musical “borrowing” that I’ve always found interesting stems two of my favorite bands. They both issued what I feel are records of masterpiece proportion - The Pixies’ “Doolittle” (1989), and The Wrens’ “The Meadowlands” (2003). The magazine Pitchfork, considered by many to be the Bible of “Indie” music, called The Meadowlands the greatest record of 2003. Within the band’s website (www.wrens.com), a brief look at the “Auto-Biography” link reveals the followed statement within the band’s chronology:
“The wrens get a gig as the house band on the on Cape May/Delaware Ferry. The wrens later get fired after performing the Pixies’ “Debaser” to the mostly senior citizen crowd.”
First, here’s “Debaser” by The Pixies. The specific instrumental part of the song later borrowed by The Wrens begins at 2:30 and goes to the end.
Fourteen years later, the Wrens issue “The Meadowlands.” The second song, “Happy,” clearly has no link whatsoever to “Debaser” during the main part of the song. However, from 4:10 until the end, it is direct homage to The Pixies, showing respect and admiration i.e. “imitation is the highest form of flattery.”
The key issue regarding copyright/copyleft is that the song’s ending (Coda in musical terms) is not at all similar to the main part of the song. In his article, David Sanjek’s writes “The ability to decipher and detach a unique riff, rhythm, or verbal expression from an original context and then determine how it might facilitate the creation of a separate composition…” The important distinction here is that The Wrens did not “facilitate the creation of a separate composition” by using the ending of “Debaser” as the ending of their own song. “Happy” would presumably be the same song it is had there never been a “Debaser,” except for the ending. This does not seem to infringe in any way on copyright laws, according to Sanjek. This is true even though, as Olufunmilayo Arewa states “Courts’ considerations of music in copyright cases tend to limit discussion to three principal features: melody first and foremost, and to a lesser extent, harmony and rhythm.” In this example, The Wrens make no effort to hide their borrowing of all these facets; the melody, harmony and rhythm.
In the 90’s Vanilla Ice recorded the song, “Ice Ice Baby.” In this song he sampled the beat from Queen’s “Under Pressure.” Vanilla Ice stated, “ The way I do stuff is to go through old records that my brother has. He used to listen to rock ‘n’ roll and stuff like that. I listened to funk and hip hop because rock wasn’t really my era. But having a brother like that, well I just mixed the two, and he had a copy of ‘Under Pressure.’ And putting those sounds to hip hop was great.” Vanilla Ice sampled from “Under Pressure” through an act of inspiration. Was David Bowie’s concern in regard to the misuse of his song, or in regards to lack of payment?
In 2005, The Black Eyed Peas recorded the hit single, “Don't Phunk With my Heart.” The group sampled the beginning of the song, from the song, “ Mera Dil Pyar Ka Dewana” from Don and the main melody from the song, “Ae Naujawan Hae Sub from Apradh, an Indian Movie.” The lyrics that are sung is borrowed from Lisa Lisa and Cult Jam’s, “I wonder if I take you home.” To create this single, bits and pieces were taken out of three songs to compose a musical work that was nominated for two Grammy awards and a BMI Award. Should the Black Eyed Peas not be credited for their creativity? Kalyanji Anandji, however was not on the list of writers for the song. Lisa Lisa and Cult Jam were also not listed. Were these artists given money to sit quiet? Rather than sampling as an issue, is it money? Both the artists of “Ice Ice Baby” and “Don’t Phunk with my Heart” sampled music. Vanilla Ice sampled from the beginning beat of “Under Pressure.” The Black Eyed Peas not only sampled, but borrowed melodies and lyrics from “Mera Dil Pyar Ka Dewana”, “Ae Naujawan Hae Sub” and “I wonder if I take you home.” Why was Vanilla Ice penalized so heavily? Is one song more creative than the other?
One of the fundamental aspects of the current copyright regime in the United States is an emphasis (some might say exclusive emphasis) on the physical aspects of a piece of music—that is, the score itself or the CD itself. The tangible product of music making is what is “copyrighted,” not necessarily the music itself. This brings music—an intrinsically immaterial entity—into the physical realm, something that can be more easily bought and sold, like fruit or grapes. And if something is made in a very physical sense, people take part in making that object and want some kind of (usually monetary) reward for creating that object. Thus, music becomes not indifferent to the products of a factory and the like. To a certain extent this idea makes sense with music. The artist and the recording studio (and anyone else involved in the production of the physical CD) or the printer of sheet music all put forth time and money to produce the physical forms of music for the public. And they rightly deserve credit for what they did to create and to produce these material things.
But, there is a point at which concern for obtaining this credit goes way too far, as, I think, is the case with current copyright laws. Instead of merely ensuring that artists and studios are compensated and/or sourced when their words and notes are used by someone else, the current copyright regime effectively establishes a wall around copyrighted music. Every “original” melody, every idea the artist might consider his or her “own” is utterly protected, sealed off, in effect from anyone trying to make music themselves. The reason for the impenetrable nature of this wall is, to put it simply, money. In order to pass through this “wall,” and sample or use another musician’s material, anyone else must fork out an incredible amount of money in copyright fees: tens, hundreds of thousands, even millions of dollars at times, as RIP illustrated nicely. This is, of course, regardless of whether or not the artist is credited on the album or score—giving the artist intellectual credit is de-emphasized. The average American simply does not have that kind of money. Hence the people referenced in RIP who were financially hammered by copyright lawyers in a way totally out of proportion to whatever crime they committed. It is one thing to try to ensure that no one “steals” your music. It is entirely another to, deliberately or not, ensure that no one, regardless of their intentions, can legally use your music for any purpose.
From a more strictly legal perspective, the current copyright regime also has enormous problems of enforcement. Technology is such that there is absolutely no way for the musical establishment (the big name stars and recording companies) to hunt down and prosecute every last person who has ever downloaded music illegally or sampled without fair use. For one, any on-line illegal activity is typically done under the cover of a username, an online identity that masks the true identity of the person using that username. And there are hundreds of millions of these usernames for people who have committed copyright violations on-line, both across the country and around the world. Is the music industry really prepared to investigate every single online profile, every former Nabster user, and prosecute all of those people for copyright violations?
Moreover, the US/Western music industry, in its zeal to protect copyright, has ignored its own hypocrisy. If it is wrong and illegal for anyone to sample and listen to music produced by the Western music industries without paying for that use and crediting the artists, than it should also be illegal and wrong for the same thing to happen to the Pygmy singer/whistle player we listened to in class this week. From our Feld readings and the last weeks of class, it seems that, to a disturbing extent, whenever a musician in the global South is sampled or musically “exploited” by a Western artist (Deep Forrest, for example), there is little uproar from the same industry which is always so eager to protect itself. This is despite the fact that the original musical source is not only never paid, but even forgotten about and lost entirely as one Western artist after another uses his or her song.