Heiruspecs' Sean McPherson talks music copyright with expert Peter DiCola
By Sean McPherson
Sean McPherson teaches at McNally Smith College of Music, is a founding member of Twin Cities hip-hop collective Heiruspecs, and plays bass with Dessa's touring band. He recently conducted a conversation with a leader in the changing terrain of the music copyright world, Northwestern University law and economics professor Peter DiCola, who co-wrote Creative License: The Law and Culture of Digital Sampling (Duke University Press 2011).
It's possible no record labels are suing Girl Talk because the potential litigants are afraid he'd win. Greg Gillis and the rest of his team have the dollars it will take to have their day in court with the big players in the music publishing world.
If Girl Talk's day in court does come he would likely be defending his highly referential works under fair use, a rarely defended part of the Copyright Act of 1976. If Gillis is able to defend his work under the protection of fair use, a large economy built around a copyright clearance system that requires a license for the use of even a nanosecond of a master record would change.
The last big change for this economy was after a 2005 legal decision known as Bridgeport v. Dimension Films. This decision famously read in part "If you sample, get a license." This ruling removed the "gray area defenses" of the copyright law in regards to using master recordings. One goal of the ruling was to create a market where sampling clearances would become more efficient because it would be so universally required. Instead, it has created a sovereign state of bigwigs with bank accounts who can still create referential pieces that build off of previously recorded works. Artists who sample, but don't have the budget to license, sit in a gray area fearing a lawsuit that will derail their career.
But even for big players, the days of multiple samples creating the groundwork for a new piece are gone. The modern business practices of sample clearances would leave artists such as Public Enemy and the Beastie Boys deeper in debt with every record they sold, to the tune of Public Enemy losing $4.47 for every copy of Fear of a Black Planet sold. This is because nowadays the majority of frequently sampled artists are requiring 20-100 percent of the publishing rights for a song; if you toss six samples into one new composition you are coming out of pocket each time it is sold.
The changes brought about by the 2005 Bridgeport vs. Dimension Films has changed the rules for every player in the sampling world. It is the basis for Jay-Z seeking permission from the estate of a Depression-era songcatcher named Alan Lomax to release "The Takeover" because Jay sampled KRS-One's vocals from a track that sampled a cover of a cover of a song partially attributed to Alan Lomax.
It is the reason musicians across the country spend time in studios mimicking nuances and mistakes from pieces recorded thirty years ago and it is the reason I am leaning against a pole on a train in Chicago asking one of the leading lawyers and academics on sampling law why you need no permission to cover someone else's entire song but you need six months, a sample clearance specialist's Rolodex and $2,000 at a bare minimum to loop a two-bar drum loop legally.
This interview is a blues song for every record that you won't hear because a lawyer spilled coffee on the clearance request or because "Steve Miller won't clear any samples for hip-hop." If and when Girl Talk wins a lawsuit protecting his work on the grounds of fair use, I'd let you sample the song and flip the meaning like cultures have been doing for centuries, but hopefully you won't need my permission by then. If you're not sure if you need permission I'd check with Peter DiCola. That's what I'm doing on this train.
Peter DiCola is making his mark as a trustworthy voice in an area of law and entertainment that needs sound legal and historical context. DiCola's deep knowledge of the "standard" practices of the various stakeholders in sample negotiation as well as his knowledge of the written law helped set the record straight on a number of topics.
Sean McPherson: The book Creative License outlines the would-be costs of records like Fear of a Black Planet or Paul's Boutique coming out today. Why do copyright holders not go back and open lawsuits on old records now that there is a legal precedent to justify a lawsuit for any unlicensed use of a master recording?
Peter DiCola: Some copyright holders have opened lawsuits on old recordings. Notorious B.I.G.'s Ready to Die was removed from shelves years after its release in the aftermath of the Bridgeport decision. In some instances it is a question of whether it is an efficient use of time for a lawsuit that might be hard to defend. In other cases, samples were licensed but they were licensed for far below what the current market price is. But, nothing legally prevents records from the past from being opened up in lawsuits today.
SM: Many artists today are hiring live musicians to duplicate samples to avoid the costs of getting samples cleared. What legal issues do artists who go this route still face?
PD: Duplicating the sound on a master recording without using the master recording does prevent you from being sued for utilizing the master recording. But because you are changing the context of the music by replaying only a small section you are not entitled to the different set of rules that cover songs enjoy (namely, a compulsory license that requires no negotiation, just a fixed payment). Thus, you still must be prepared to seek permission and pay for use of the song's copyright. In Creative License we outline instances where musicians and producers were able to change the selection in substantial enough ways to pay no fees. But this is a murky tight rope and one that could result in lawsuits down the way.
SM: How do you think the sampling business that has grown around hip-hop would have differed if the first people to be commercially successfully sampling had come from the traditional music world? For instance, if Paul McCartney or Fleetwood Mac had been the first group to have a big hit single using samples, how would the rules have grown differently?
PD: There might have been some differences in how things were enforced and the rhetoric surrounding the topic, but the fundamental laws and practice would likely not have changed that much. There's been a well-documented level of disrespect for traditional musicians toward artists who sample to create their work. This disrespect might have been subdued or nonexistent If the purveyors of sampling were recognized as talented musicians before they started sampling and were more similar socioeconomically and racially to the controllers of the music industry.
But ultimately, the licensing agreements are between a vast array of interests and the identity of the first sampling artist wouldn't have a monstrous impact. The transactions are based on the shared needs of both sides at the negotiating table. If I am sitting on the rights to James Brown's entire catalog I am going to start a licensing conversation from a favored position no matter who is sitting across the table, even James Brown himself.
SM: Because it lacks the need to duplicate large amounts of physical copies is it possible that radio and Internet streaming would represent a new frontier for sample heavy music? If these stations or websites pay their blanket licenses to public performance organizations are they not free to play any mash up imaginable?
PD: I differ in my opinion with my co-author Kembrew McLeod on this point but I do not believe that the payment of the blanket license permits bringing together sections from previously copy-written songs and stating that this is a new piece. If this were permitted, the radio hosts would not know what to punch in credits wise for the 5-10 minutes where sample heavy music was played. The absence of a paper trail would not suit BMI and ASCAP who are financed largely through collecting monies from radio stations and delivering it to copyright holders. If a song utilizes unauthorized material it cannot be registered on BMI, ASCAP or any other performing rights organization. If it cannot be registered with a Performance Rights Organization (PRO) such as BMI or ASCAP, it is not suitable for radio play.
SM: Your book makes a passing reference to the Copyright Act of 1909, which set a compulsory mechanical license price that permitted songwriters to receive 2 cents (now 8 cents) per manufactured copy of their song. Has a similarly efficient system compulsory rate not been developed due to large hostilities between different factions in our era?
PD: There was definitely more hostility relating to the players in the 1909 act than in any disputes in our time. The copyright act of 1909 was a reaction to the introduction of the new technology known as piano rolls. Congress had ruled in 1907 that each new copy of a self-playing piano roll would not require the same payment to music publishers as an additional copy of sheet music would require. Music publishers were not ready to part with their material for free. This brought the future of a new technology to a grinding halt that Congress sought to remedy. A low priced compulsory license would allow music publishers to benefit from this new technology at a rate that would still permit the piano roll companies to turn a profit. The fact that this act created a legal system for performers to sell units containing cover songs was an unintended consequence of the 1909 act and that songwriters felt strongly devalued the product they are in the business of creating.
Many things have hindered the creation of a compulsory license system, but one key element is the potential loss of income for individuals who control the rights to frequently sampled works. By making each licensing agreement and individual transaction they are able to maximize the financial potential of each license and tailor the context where their music gets heard.
SM: If the market for sampling doesn't work smoothly what is the best route for an artist who feels they must sample to make quality art?
PD: Sampling without clearance at this point is a legal risk. If it is an artistic necessity it must be weighed against the list of artists who have seen their careers slowed down by legal battles related to the use of samples. The best bet is to seek permission when possible, only sample when it is essential and to keep good legal counsel.
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