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Digital Music Sampling: Creativity Or Criminality?

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Digital Music Sampling: Creativity Or Criminality?

Music

Digital Music Sampling: Creativity Or Criminality?

Digital Music Sampling: Creativity Or Criminality?

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Dean Garfield, president and CEO, Information Technology Industry Council, Washington, D.C.

Kembrew McLeod, associate professor, department of communication, University of Iowa, co-producer, "Copyright Criminals" (ITVS, 2009), co-author, "Creative License: The Law and Culture of Digital Sampling" (Duke University Press, 2011), Iowa City, Iowa

Hank Shocklee, president, Shocklee Entertainment, co-founder and producer, Public Enemy

The advent of the sampler in the '80s brought a long tradition of musical borrowing into the digital age. Today, "sampling," or repurposing a snippet of another artist's music, is mainstream. Is sampling theft, or is copyright law making creativity a crime?

IRA FLATOW, host:

Way back when, there used to be a distinct line between producers of culture and consumers. Somebody at a network or a production company made the TV shows, the movies and the music, and then the average consumer, well, you bought a ticket, or you bought the album.

But digital technologies, from Pro Tools to YouTube, have made everyone into a producer. We live in a world of remixes and mash-ups and samples, taking other people's work, remaking it into something new.

But the problem is - but the problem is, remixing someone else's work without their permission might be a good way to get sued, a copyright infringement perhaps.

So when it comes to sampling, the law can be confusing. How much of a sound can you copyright? A musical phrase? A single note? And who owns those copyrights? And what about fair use?

Well, that's what we'll be talking about the rest of the hour, but if you're not quite sure what sampling is, and I wasn't quite sure when I got into this piece myself, Flora Lichtman, our digital media editor, is here. She's going to straighten us out to help explain via our Video Pick of the Week what sampling is. Welcome.

FLORA LICHTMAN: Hi, Ira, thanks.

FLATOW: Tell us about the sampling stuff. What is it?

LICHTMAN: So I didn't know what sampling was either, Ira. I'd say, you know, I hear sample and I think cheese cube. But Katherine Wells, science arts producer to the rescue this week. She interviewed a musician, DJ and clothing designer, Aaron LaCrate, who was generous and not - nonjudgmental enough...

(Soundbite of laughter)

LICHTMAN: ...to introduce us to the concept of sampling, which is basically taking a snippet of a song and repurposing it. And for the purpose of this segment, we thought we'd do a little demonstration. So what we first have is this song, which is by James Brown, "Funky Drummer." It's one of the most sampled songs in history.

(Soundbite of song, "Funky Drummer")

LICHTMAN: That drum beat...

FLATOW: Ah.

LICHTMAN: ...that you hear is sampled all over the place. And so, a musician would take that drum beat and pick it out of the thing. And so, let's hear then the sample from that song.

(Soundbite of song, "Funky Drummer")

LICHTMAN: That's it.

FLATOW: Just took it out.

LICHTMAN: Just - exactly.

FLATOW: And now he's going to take that and make something new with it.

LICHTMAN: So the next step is taking the drum beat and then looping it. So here's a loop.

(Soundbite of song, "Funky Drummer")

FLATOW: Over and over, it keeps playing.

LICHTMAN: Oh, repeat, repeat, repeat.

FLATOW: Yeah.

LICHTMAN: And then that becomes the basis of a new piece of - a new song. And so, we have a musician, Sublime, which has sampled the "Funky Drummer" beat and then created their own new piece.

(Soundbite of song, "Scarlet Begonias")

FLATOW: And you could certainly hear the old drum beat.

LICHTMAN: Should sound familiar. And they're actually playing "Scarlet Begonias," which is a Grateful Dead cover. This just further complicates the copyright there.

FLATOW: So they sampled a whole bunch different and mix them all together to create a new object, a new thing.

LICHTMAN: That's right. And one thing that we should note is that our Video Pick of the Week, which goes through this even - certainly, Aaron LaCrate is a better expert that I am on this.

FLATOW: Mm-hmm. Mm-hmm.

LICHTMAN: He doesn't actually sample in his music because clearing these samples is a really complicated and expensive process.

FLATOW: Mm-hmm. And so, if you want to see how - what it takes to actually create a sample and using new technology, in the old times they show on the Video Pick of the Week using turntables. You don't need to use turntable anymore, right?

LICHTMAN: Yeah. And now, it's sort of can be completely digitized. And one other thing that we should give due credit to, the drummer, Clyde Stubblefield, is known as one of the most sampled artists. That's how he's referred to. He's just a...

(Soundbite of laughter)

LICHTMAN: ...the drum beats coming out of him are perfect for sampling apparently.

FLATOW: And so, he's like the granddaddy of all sampled drum beats.

LICHTMAN: Maybe.

(Soundbite of laughter)

FLATOW: All right. So thank you, Flora.

LICHTMAN: Thank, Ira.

FLATOW: That's our Video Pick of the Week, coming a little early because now we're going to talk about some of the issues that have to do with sampling.

I'm Ira Flatow. This is SCIENCE FRIDAY from NPR.

And as promised, here to talk more about the issues of sampling and copyright are my guests. Hank Shocklee is a co-founder and producer of the legendary group Public Enemy, and the president of Shocklee Entertainment. Welcome to SCIENCE FRIDAY.

Mr. HANK SHOCKLEE (President, Shocklee Entertainment): How are you, Ira?

FLATOW: Nice to have you here. Thanks for coming in.

Mr. SHOCKLEE: Thank you.

FLATOW: Kembrew McLeod is associate professor at the Department of Communication at the University of Iowa. He's also the co-producer of the documentary "Copyright Criminals," and the co-author of the upcoming book, "Creative License: The Law and Culture of Digital Sampling." Welcome to SCIENCE FRIDAY.

Professor KEMBREW McLEOD (Professor, Department of Communication, University of Iowa): Thanks for having me on.

FLATOW: You're welcome. Dean Garfield is the president and CEO, Information Technology Industry Council. He formerly worked as the executive vice president and chief strategic officer for the MPAA, and vice president of legal affairs at the RIAA, where he focused on intellectual property and copyright issues. Thank you for joining us.

Mr. DEAN GARFIELD (President and CEO, Information Technology Industry Council): Thank you. Glad to be here.

FLATOW: Hank, let's start with you. As producer for Public Enemy, you really treated sampling as collage, putting pieces together. How did you come up with this technique?

Mr. SHOCKLEE: Actually, it just came from my DJ and radio, you know, experience. And it was it was actually another DJ that came and he mixed - he was mixing like four records together and it sounded like -to me - it sounds like a mess to everybody else.

(Soundbite of laughter)

Mr. SHOCKLEE: But to me, I heard something that was unique in it. And because all the different, you know, textures just playing off of each other gave another rhythm. It created another sense of harmony. It created another sense of timing and different things. So it kind of like - that aspect of it kind of like propelled me into wanting to do more of those things on a commercial level, as you put it.

FLATOW: Right, right. And it became a more complex with the technique as you moved along.

Mr. SHOCKLEE: Correct.

FLATOW: Yeah. Kembrew, how important is sampling in pop culture today?

Prof. McLEOD: Well, I think it's basically the central part of popular culture if you think about social networking and the way that people interact with each other across great distances. And they get to collaborate with each other, you think about open-source software, the way that people collaboratively create stuff, they're essentially taking samples of computer code and remixing them.

And the same is true with music. I mean, I know a 12-year-old who make mash-up videos on YouTube and upload them. It's just - it's almost part of the DNA of - not just youth culture but just popular culture more generally.

FLATOW: We're talking about sampling this hour on SCIENCE FRIDAY from NPR. I'm Ira Flatow, here with a bunch of guests talking about it.

And Dean, how does the recording industry see sampling as a big problem. Do they - do you - you're basically stealing somebody else's intellectual property, their musical property.

Mr. GARFIELD: Yeah. I would say probably, you know, 10 years ago, that was the general perspective. But they, like everyone else, have matured a lot. I don't work in the recording industry anymore. I now work for the tech sector. But I think there's been a certain maturation over the years, and the recognition that consumer choice is at the center of anything and everything that they do.

And so, as consumers want content, music that includes the kind of sampling that you demonstrated before, that they should figure out a way to enable that. And I think more and more, they're working at doing just that.

FLATOW: Mm-hmm. 1-800-989-8225 is our number if you want to talk about sampling and the technology there. Also, you can tweet us @scifri, @S-C-I-F-R-I.

Hank, do you think there should be ways to compensate people for this? Or has this been set up?

Prof. MCLEOD: Well, I mean...

FLATOW: Or do you think this is just an art form?

Mr. SHOCKLEE: I think it's just an art form, and I think that - you know, you have to understand, to me, the original copyrights were there to protect the entire embodiment of the recording itself, you know, not necessarily the little pieces that was coming from it.

So, thus, you know, as we start to move more towards into the future and technology starts to increase, well, you know, now these things have to now metamorphosize, have to change. And the copyright laws have to now become updated to deal with the new landscape that we have. You know, you have kids that are listening to YouTube and you have kids that's -that are watching DJs perform. And records are now more than - it's more of an instrument for us...

FLATOW: Right.

Mr. SHOCKLEE: ...as opposed to it being just, you know, a record just to be listening to.

FLATOW: All right. We're going to talk a lot more about sampling. Our number, 1-800-989-8255. And what do you think? Do you think it's an art form? Do you think that there's a middle ground someplace between using someone else's intellectual property or their music and allowing artists to become new - to experiment with new kinds of sounds? Tell us. 1-800-989-8255. You can tweet us @scifri, @S-C-I-F-R-I. Stay with us. We'll be right back after this break.

I'm Ira Flatow. This is SCIENCE FRIDAY from NPR.

(Soundbite of music)

FLATOW: You're listening to SCIENCE FRIDAY. I'm Ira Flatow. We're talking this hour about digital sampling and copyright law with Hank Shocklee, co-founder and producer of Public Enemy and the president of Shocklee Entertainment. Kembrew McLeod, associate professor in the Department of Communication, University of Iowa, also the co-producer of the documentary "Copyright Criminals." Dean Garfield is the president and CEO of the Information Technology Industry Council. Our number, 1-800-989-8255.

Kembrew, in "Copyright Criminals," you asked a question, can you own a sound?

Prof. McLEOD: Yes.

FLATOW: Did you come up with an answer?

(Soundbite of laughter)

Prof. McLEOD: Courts have come up with - some courts have come up with the answer in the affirmative. There's a well-known case that's been really influential called the - referred to as the Bridgeport case, which basically, the court said, more or less - and I think this is a direct quote - get a license or do not sample. And even if you - it affirms that even one second of a sound recording - and we're talking about the sound recording just then - lifting the sample from another record, that's an infringement.

So, yeah, some courts have ruled that that is, in fact, the case. There is, of course, in the United States, a kind of loophole called fair use. And that allows for quoting from copyrighted works for purposes of criticism, commentary and recontextualization. And that is not considered an infringement.

FLATOW: Mm-hmm. Hank, do you think that these laws all have to be changed to allow for kids to be creative with the sampling?

Mr. SHOCKLEE: Oh, yes. I think that everything should be fair use, except for taking the entire record and mass producing it and selling it yourself. Anything - if you take a chorus, if you take the entire intro from a record, eight bars or whatever it takes, I think that - all that should be fair use.

FLATOW: So, describe what fair use is for people who don't know what that...

Mr. SHOCKLEE: Well, fair use just means that I can use anything that I want to use out there without having to pay for - to get a license.

FLATOW: Mm-hmm. And...

Mr. GARFIELD: It really is an attempt to figure out what's fair as - and so, you know, I think Hank's approach doesn't give enough credit to the work that - the role that ideas and copyright play in really being the seed corn for innovation that improves people's lives in this country. The concept that someone could - you could spend your entire career developing something and because someone decides to take 75 percent of it instead of 100 percent means that you don't have a way of being compensated, to me, simply sounds unfair.

FLATOW: Could you not create a system, let's say, on iTunes where you just have little bits of these snippets for sale, 99 cents, 2.99, whatever it is? And then there's - every time someone takes a little bit, makes a loop, they would get a little bit of dough out of that? What would be wrong with that?

Prof. McLEOD: Well, actually, that is the case. So there are whole sample libraries that you can purchase. But the downside of that is the sample libraries typically are produced by, you know, session musicians creating, like, short snippets and stuff. And the stuff that people really want to sample is, for instance, Clyde Stubblefield's drum beat from "Funky Drummer."

FLATOW: Well, I understand that. I say - I know if I can get - if I get a Garage Band from Apple, I can...

Prof. McLEOD: Yeah.

FLATOW: All these free, use them as much as you want little riffs on there, little samples. But why can't I get something, you know, from some of these popular tunes that are going to be sampled any way the kids want to do it? Why can't we find a way to put those up on iTunes or add little bits of it, somehow, in a system there?

Prof. McLEOD: The short answer...

Mr. GARFIELD: In part, it is artistic integrity. It's the reason you now have The Beatles on iTunes where previously you didn't. You know, they made the determination, at some point, that it was appropriate. And before then, they thought it wasn't. And so, as the person who spent the time developing the work, you should, I believe, have some control over how that work is used.

Mr. SHOCKLEE: You're right...

Prof. McLEOD: But there's a long tradition in copyright law. Just take the example of cover songs, where the songwriter, since 1909, has no right to prevent someone else from covering. Do, like - for instance, The Beatles couldn't stop William Shatner from doing that god-awful cover of "Lucy in the Sky with Diamonds." So there's already precedence in copyright law where, you know, the quote and quote, "artistic integrity," doesn't trump downstream creativity. You know what I mean?

So anyway, I think we need to find a middle ground. I think we need to revisit, you know, what we did a hundred years ago, what Congress did a hundred years ago when they rethought copyright law and they enabled -they basically enabled the 20th century music industry to exist because the music industry was based largely on cover songs.

And back then, before email, faxes and stuff like that that make it even easier to negotiate contracts, back then, you didn't have any of that stuff. And so - basically, what I'm getting at is the entire tradition of cover songs would have been wiped out if, a hundred years ago, Congress didn't have the foresight to create a little bit more artistic elbow room.

FLATOW: Hank, you wanted to jump in?

Mr. SHOCKLEE: Yeah. And keep in mind that the - you know, Clive Stubblefield, you know, is not a copyright owner. James Brown is not a copyright owner. George Clinton is not a copyright owner. The copyright owners are corporations, and most of the corporations that are have affiliates with the record companies.

So thus - so when we talk about artists, you know, that term is being used, but that's not really the case here. We're really talking about corporations.

FLATOW: Mm-hmm. Let's go to Max(ph) in Denver. Hi, Max.

MAX (Caller): Hey. How are you, Ira?

FLATOW: Hi, there.

MAX: I just want to say I appreciate your show. SCIENCE FRIDAY is one of my favorite shows.

FLATOW: Thank you. Go ahead.

MAX: But I just want to say that I think a lot of creativity gets stifled. I mean, you can look at, basically, the golden age of sampling during the '90s for hip hop, and you just saw so much unique sounds coming out. And I - that's when I started deejaying. I've been doing it for 15 years. You can check me out at soundcloud.com/dj-eclipse.

But it's basically, you know, stifling a lot of the creativity because a lot of the people who get these samples and play them - a lot of people rediscover music from past genres by listening to these samples.

And, you know, I think those corporations that are holding those copyrights hostage are missing out on a huge marketing opportunity, basically, because they're not going to - these people are now getting into these electric genres where people aren't able to listen to snippets and soundbites of old music where they're going to say, hey, where did that come from?

Where did RZA get that sample from? Where did it RJD2(ph) get that sample from? And then rediscover past genres of music and buy those albums, because I know I did, through just sampling and through just being interested in the music and trying to research and find out how these sounds are put together. And I think that's one of the most lost aspects from the golden age of sampling that we have today, what you can call, I don't know, the Timberlanization(ph) of hip hop where...

(Soundbite of laughter)

MAX: ...you just have these big, huge electric genres that are coming out, and people end up regurgitating riffs that were there from the '80s or whatever. Anyway, I mean (unintelligible).

FLATOW: So you're saying that we could resurrect people's careers who -Hank, you agree with that? You were giving me a thumbs-up.

Mr. SHOCKLEE: That has happened tons of times. I mean, look at Roger Chapman, for example. Roger Chapman's career wasn't going anywhere. And then, all of a sudden, Dre decides to sample him on "California Love." And by him using the sample, caused him to say, okay, I couldn't get the sound right. So let me go get Roger Chapman himself and come in here and actually perform that live.

FLATOW: Can you order up on the Internet, can you order up a sample of anybody you want? Can you find any - I'd like to get a sample. Are there people who make you a sample, something?

Mr. SHOCKLEE: No. No. You have to find the actual song.

FLATOW: You have - so there's not - there aren't...

Mr. GARFIELD: You can find it. It's matter of whether you can legitimately obtain it. And I actually agree with Hank and, I think, Kembrew. I don't think anyone is well-served by having these songs locked up in some locker somewhere that - so that people can't discover them.

I think at bottom this comes down to how do you facilitate that consumer choice in a way that's fair, you know, that benefits the artist and benefits consumers.

FLATOW: 1-800-989-8255. Let's see if we can get a couple of more calls in here from our listeners. Let's go to Kyle(ph) in Grand Haven, Michigan. Hi, Kyle.

KYLE (Caller): Hi, Ira. Thanks for having me on.

FLATOW: Hi, there.

KYLE: I'm gonna try to explain as best as I can in short words. When speaking from a commercial standpoint here, as we're talking about music, we're trying to copyright in a sense - put a label on human emotion, taking away from its artistic value, I feel, at least.

FLATOW: Okay. Any comment on that? And what about if you treated the sample as actually a pictorial, as a waveform?

KYLE: Yeah. Exactly.

FLATOW: Could you - that's what you're getting to. Could you copyright the waveform?

KYLE: It's like trying to copyright an emotion like fear.

FLATOW: Yeah. Right.

Mr. GARFIELD: Or better yet, you know, Gibson and - could copyright the sound of their guitars. You know, Tama or - can copyright the sounds of their drums.

FLATOW: Right.

Mr. GARFIELD: I mean, so this thing could go on...

FLATOW: (unintelligible) could've made a killing on...

(Soundbite of laughter)

Prof. McLEOD: Well, think about it. I mean, the - I mean, when we another thing that hasn't come up yet is the discussion of the public domain. And the public domain is that which isn't copyrighted, usually because it's either never was copyrighted or Congress sets limits on the amount of time that something can be copyrighted. Well, Congress keeps extending the length of copyright.

Well, anyway - so, basically, the only stuff that we can sample is anything pre-1923, if you're safe. And whos going to want to sample that? I mean, someone who is really creative could do something interesting with that. But the stuff that really resonates with people is more contemporary, but, anyway...

FLATOW: Im seeing a Rudy Valli moment here, I think...

(Soundbite of laughter)

Prof. McLEOD: Yeah. Well, no. That's definitely not pre-'23 though.

(Soundbite of laughter)

Prof. McLEOD: But going back to, like, the idea of copyrighting a sound or whatever - like, think about the public domain. Like whenever - and -oh, no. Sorry. Going back to Ford, you know, he could have made a killing, you said. Well, yeah. Every time we step in our cars, we go on a ride in the public domain, because everything in our cars, you know, is built on previous ingenuity. And at one point in time, it was released so that anyone can use it. So that's another dimension that I wanted to introduce.

FLATOW: Sure.

Mr. SHOCKLEE: And keep in mind, if I bought that Ford car, I could take the carburetor out and resell it. And that's quite okay, you know? But in - but I bought a record. I own the record and I can't take a piece of it and sample it and use it for my own record, for whatever purpose, whether it's commercial or non-commercial.

FLATOW: Mm-hmm.

Mr. SHOCKEE: And, you know, that's why I think - I think...

Mr. GARFIELD: I think the metaphor though is if you bought a CD, you could sell that CD, right? But you couldnt then sell the patent behind the carburetor of the car, which is the parallel concept here.

FLATOW: Well, but - if you kept...

Mr. SHOCKLEE: How does that happen? Explain that, please.

Mr. GARFIELD: Well, the idea is you can sell the objective manifestation, like the CD, but the actual creative work, someone invested time and energy in that and so you can't just take that and sell that.

FLATOW: Well, that - the word sell is an interesting point here because what if youre just a kid who wants to just sample as a hobby and you have no intention...

Prof. McLEOD: Yeah.

FLATOW: ...of making any money from this. You just, you know, you're going to listen to it by yourself, maybe show it to your friends. You're not putting it out on iTunes or something like that to sell it. (Unintelligible).

Prof. McLEOD: (Unintelligible) that is the difference. If we're talking about private use, that's clearly a fair use. But then when that kid wants to put it up on YouTube or SoundCloud or whatever, then they're making multiple copies. And they're potentially liable for hundreds of thousands of dollars in damages.

FLATOW: We're talking about...

Prof. McLEOD: Simple as that.

FLATOW: ...talking about sampling this hour in SCIENCE FRIDAY from NPR.

And I know Hank, you've been - you've had experience with being sued over sampling, right?

Mr. SHOCKLEE: Well, everybody who's made rap records has.

(Soundbite of laughter)

FLATOW: And you're still sitting here and still advocating for more of it?

Mr. SHOCKLEE: Of course. I mean, and you know, I've been sampled as well, you know? And then it becomes a situation when you sample a record and you put a new record out, and then someone samples that record, you know? Now, who do we go to, you know? Are we going to the person that sampled the record or do we have to go to the owner of that particular record?

FLATOW: So how do you feel about being sampled?

Mr. SHOCKLEE: Well, I think it's great. Because I think anything that moves the - that moves the energy forward, to me, is great, you know. It's like, if the kids are doing it and that makes me relevant again because their use of it is going to be different in the way I originally had recorded this particular record.

FLATOW: Let's go to Hunter(ph) in Jacksonville, Florida. Hi, Hunter.

HUNTER (Caller): Hi. Good afternoon, guys.

FLATOW: Hi there.

HUNTER: I just had two points of sampling. One was - you know, when, like, Nelly and Ludacris come out with "Shake your Tailfeather," and it's direct sampling from the '70s song, I think that they lack originality. They're lacking creativity and that harms it because they're just reproducing something that was popular without any real input.

The other comment is that what the gentleman was just saying, it's an evolution. And, you know, in rap, especially, I think hip hop is a more modern form of blues. And, you know, blues was based on an evolution of field calling. And there's been an evolution throughout time, and people are going to sample from the period just before that and that's how things evolve. And I think that's a natural progression, to want to pull those sounds with you into the future as you evolve. So...

Prof. McLEOD: Yeah, I want to...

HUNTER: ...I'll take my answer of the air. Thank you.

FLATOW: Thank you, Hunter.

Prof. McLEOD: Yeah. Can I quickly address...

HUNTER: Sure.

Prof. McLEOD: ...what he just said? So yeah, he was referring to just taking an old chorus and looping it and that's not very original. And, you know, I would agree with that. That's not a very interesting use of sampling in my opinion. What was really interesting is what groups like De La Soul and Public Enemy did 20 years ago, back when they were flying under the radar and major labels weren't paying attention to this new art form of sampling. And so, Public Enemy would build songs out of dozens of little snippets.

And returning to what I said earlier where just even today, just a brief one second sound bite is considered an infringement, it made the more interesting collage-heavy, you know mind-blowing stuff illegal, or if not illegal it made it administratively impossible to clear all these dozens if not hundreds of different samples that appeared on those records. And it basically wiped out - yeah, it put a stop to one branch of hip hop's evolution. And I think that's that.

FLATOW: Well, let me - in a minute that I have left here, is there a high tech solution to this? If we can - if sampling is a high-tech way of doing things, is there some way to create a system that's equitable to everybody?

Prof. McLEOD: You know, I think...

Mr. GARFIELD: I think there is. I mean, the companies I represent today are the companies who develop this technology that enable this stuff, right, as opposed to what I did 10 years ago. And for me, I think part of it is persuading the record companies to enable this kind of consumer choice by creating the kinds of database so that its easy to gain access to the kinds of sample that you want, you know, rather than having them locked up somewhere and not being able to evolve and grow in giving consumers what they want over time.

FLATOW: All right. I think that you have the last word. I want to thank all of you, gentlemen, for joining us. Hank Shocklee, co-founder and producer of the group Public Enemy and president of Shocklee Entertainment. Thank you Hank, for being here today.

Mr. SHOCKLEE: Thank you, Ira. I appreciate it.

FLATOW: Kembrew McLeod, associate professor in the Department of Communication, University of Iowa, also co-producer of the documentary "Copyright Criminals" available to be seen everywhere? Kembrew?

Prof. McLEOD: Yep. Even on Hulu.

FLATOW: There you go.

(Soundbite of laughter)

FLATOW: And its not being sampled. Dean Garfield, president and CEO of the Information Technology Industry Council. Thank you also for taking time to be with us today.

Mr. GARFIELD: Thank you, Ira.

FLATOW: Have a good weekend, everybody.

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