'Creative License

The Law and Culture of Digital Sampling'

by Kembrew McLeod and Peter DiCola

19 April 2011


Creating a Collage of Sound

“Don’t Believe the Hype” on It Takes a Nation is another notable example of the Bomb Squad’s aural experiments. It was, according to Hank Shocklee, “one of the strangest ways we made a record. We were looking for blends in particular records; so I might be on one turntable, Keith on another, and Chuck on another turntable at the same time.” As Chuck D elaborates further: “We would go through a session of just playing records, and beats, and getting snatches, and what Hank would do is record that whole session. You know, 95 percent of the time it sounded like mess. But there was 5 percent of magic that would happen. That’s how records like ‘Don’t Believe the Hype’ were made. You would listen to sixty minutes of this mess on a tape, and then out of that you would be like, ‘Whoa! What happened right here?’ ”

They used the same approach when constructing Public Enemy’s next album, Fear of a Black Planet. “It’s completely an album of found sounds,” Chuck D says. “It was probably the most elaborate smorgasbord of sound that we did.” He describes how he spent at least one hundred hours listening to various tapes, records, and other sound sources in search of samples for the album. As the group’s lyricist, Chuck D needed to fit the snatches of sampled songs, radio snippets, and everything else into his lyrics so that his rhymes and those sounds would weave together to create a theme for the album. “There were hundreds of sampled voices on that album,” Chuck D explains. Pointing to the album’s opening track, “Contract on a World Love Jam,” he says the song holds “about forty-five to fifty voices” that interlock and underscore the album’s message with a forceful sonic collage.

Many artists, scholars, and critics have argued that the growth of twentieth-century jazz music would have been similarly stunted if the jazz musicians of the time—who regularly riffed on others’ songs—had to obtain permission or a license from music publishers for the use of every sonic fragment they improvised upon.

Regarding Public Enemy’s musical complexity, the DJ and producer Mr. Len points to a particular track, “Night of the Living Base Heads,” from It Takes a Nation. As Mr. Len says, “If you really listen to that song, it changes so many times.” Kyambo “Hip Hop” Joshua—who started out in the music industry working for Jay-Z’s Roc-a-Fella Records in the mid-1990s, and who now co-manages Kanye West’s career—echoes Mr. Len. “It was common to have multiple samples in a song, like on Public Enemy or N.W.A. albums,” Hip Hop says. “If you was to go into those records, you could look at one record and you’ll see five or six samples for every song. There was more changeups and drums was changing on different parts, and samples was changing.”

“I’m a big Public Enemy fan,” Girl Talk tells us. “Even on the subconscious level I think it really affected me—just understanding sampling as an instrument and understanding the way people make their music like that.” And MC Eyedea adds, “One of the reasons why we don’t like most modern hip-hop is because we can listen to [Public Enemy records], and their arrangements are so much more complex than anything today.” During hip-hop’s golden age, artists had a small window of opportunity to run wild with the newly emerging sampling technologies before the record labels and lawyers started paying attention. “It was definitely a time when sampling artists could get away with murder and we just—we did,” says Coldcut’s Matt Black.

On Public Enemy’s It Takes a Nation of Millions to Hold Us Back, Chuck D raps about white supremacy, capitalism, the music industry, and—in the case of “Caught, Can I Get a Witness?”—digital sampling: “Caught, now in court ’cause I stole a beat / This is a sampling sport / Mail from the courts and jail claims I stole the beats that I rail… I found this mineral I call a beat / I paid zero.” Our interviewees told us that no one bothered to clear the many fragmentary samples contained in Public Enemy’s classic song “Fight the Power,” which was featured in Spike Lee’s Do the Right Thing (even though that film was released by a large movie studio and the soundtrack album was on a major label). As Chuck D explains, “It wasn’t necessary to clear those albums, Fear of a Black Planet and It Takes a Nation, because copyright law didn’t affect us yet. They hadn’t even realized what samplers did.” The music producer El-P waxes nostalgic: “It was just this magical window of time.”

The End of the Golden Age

Once the money came in and said, “Yo, you can’t keep doing this,” all the momentum just kind of dropped out. It was like the bottom fell out the bucket. And those cats were saying, “Man, that’s our style. Now you’re telling me that our style’s too expensive?”—Mr. Len

Of course, not everyone stitched together their samples like Public Enemy did. There were plenty of songs from the golden age that merely looped the hook of an earlier song, and it was this type of sampling that began provoking legal action. For example, the influential old-school rapper T La Rock (and one-time EPMD label mate) points to the “I Shot the Sheriff” sample—which provides the backbone of EPMD’s “Strictly Business.” Referring to the sampled performance by Eric Clapton, T La Rock says, “I don’t care who you are, you know where that loop is from. And there’s a few songs like that in their records.” Those reservations aside, he is still a fan of EPMD, and he acknowledges that even a simple loop can work its magic if used the right way. Nevertheless, this kind of sampling made T La Rock uncomfortable back then, when few hip-hop artists had concerns about copyright.

“There were some producers who really had no originality,” T La Rock says. “It’s as if they took the whole song. They sampled so much out of that record that there was no real production there. That’s the problem I had with a lot of the producers that sampled. They didn’t try to contact the person and say, ‘Hey, you know, I want to make some type of publishing deal or something like that.’ And for years and years and years, this went on and on under the radar, you know?” In EPMD’s case it wasn’t far enough below the radar, because many of the original artists tracked them down and demanded payment. “We never cleared any samples on the first album,” EPMD’s Erick Sermon chuckles. “People would just come after us after they knew we had sampled them. Eric Clapton wanted ten thousand dollars, Roger Troutman wanted five thousand. They didn’t even sue us back then—we just paid them and that was that.”

With the commercial success of a number of hip-hip albums in the late 1980s, the music industry had begun to see the genre as not just an inner-city fad but as a solid source of sales revenue. With commercial validity also came increased scrutiny over samples. During the early 1990s—after a wave of lawsuits we will address in chapter 4—the legal landscape radically changed. This shifted the ground beneath the feet of hip-hop artists. “By 1994, when we made Muse Sick-N-Hour Mess Age,” says Chuck D, “it had become so difficult to the point where it was impossible to do any of the type of records we did in the late 1980s, because every second of sound had to be cleared.” Another thing that occurred by the early 1990s was that the cost of clearing samples—and the legal risks of not clearing samples—had significantly increased. As Harry Allen, a hip-hop journalist who has long been affiliated with Public Enemy, observes, “Records like It Takes a Nation of Millions and 3 Feet High and Rising, we would have to sell them for, I don’t know, $159 each just to pay all the royalties from publishers making claims for 100 percent on your compositions.” Allen’s hypothetical $159 cd refers to the cumulative costs associated with tracking down the owners and obtaining the proper licenses to clear the one hundred to two hundred samples on each of those early Public Enemy albums.

Many of the musicians, lawyers, and record company executives we interviewed have made similar claims regarding the costs of licensing numerous samples in a single composition. Danny Rubin, who runs a firm that clears samples for artists and record labels, tells us that today it is impractical to license songs with two or more samples. Given this, no wonder that the Beastie Boys never attempted to follow up on Paul’s Boutique’s densely layered collages. On the Beastie Boys’ album from 1992, Check Your Head, they used drastically fewer samples, and traditional instruments comprised most of that album’s instrumental bed. “The way I always heard it,” says Money Mark, who played keyboards on Check Your Head and later albums, “was that their accountant told them that they couldn’t make any money with all those samples, so they tried a different route.”  Mario Caldato Jr., who worked as a recording engineer on Paul’s Boutique, estimates that 95 percent of the sounds on that record came from sampled sources, and that “they spent over $250,000 for sample clearances.”

As Posdnuos of De La Soul remembers, “I think Stakes Is High [1996] was the first album we recorded where we actually sat down in the beginning of the album, and the record company went through a list, ‘Well, George Clinton is in litigation with Westbound [Records], so don’t mess with his stuff right now.’ Or, you know, ‘Serge Gainsbourg, you sampled him for the second album, but his estate—he died, and his family’s trying to get control of his estate—don’t mess with him.’ Or, ‘George Harrison don’t like rap, don’t mess with him.’ We actually had a list of people not to touch.” And De La Soul’s Trugoy complains, “You kind of have to do the work before you even do the creative end of things. That’s what’s kind of messed up about sampling, in some cases. You know, when you create a song and you think, ‘All right, this is hot, this is it, right here.’ And then you hand the work in to the lawyers to go clear. And either the numbers are just so crazy that you don’t want to pay that kind of money, or some people just clearly say outright, ‘No, you know, you’re not using my stuff.’ It kind of spoils the creative process.”

By the 1990s, high costs, difficulties negotiating licenses, and outright refusals made it effectively impossible for certain kinds of music to be made legally, especially albums containing hundreds of fragments of sound within one album. Reflecting on the current state of the art of sampling, Kyambo “Hip Hop” Joshua says, “Now it’s like, ‘I like that beat. I’m just gonna use this one Isley Brothers sample, and that’s it.’… It ain’t that complex no more.” And Mr. Len adds, “Nowadays, because of people getting into trouble with samples, or having to pay a lot for more than one sample, it’s forced a lot of people now to rework their styles. To me, it took a lot away from where the music could have gone.” Given the cumulative effect of multiple expensive samples and administrative hassles, one can see why the sample-laden albums like Public Enemy’s It Takes a Nation, De La Soul’s 3 Feet High and Rising, or the Beastie Boys’ Paul’s Boutique (all released in 1988 or 1989) couldn’t be made today—or at least couldn’t be distributed through legitimate channels.

With the golden age of sampling long gone, the music industry’s conventional wisdom recommends clearing even the most fragmentary uses. For example, on Jay-Z’s song “Takeover” (from his album The Blueprint from 2001), the rapper felt compelled to get permission to use a single word in his lyrics. Hip Hop—one of the managers of Kanye West, who produced the music for “Takeover”—told us that Jay-Z’s record label got clearance from David Bowie not because West sampled a sound recording but because of the way Jay-Z uttered a single word. In the song, he raps, “I know you missin’ all the FAAAAAAAME!”— imitating the phrasing from Bowie’s 1975 hit “Fame”—“Nigga, you LAAAAAAAME!” Significantly, this didn’t provide the hook of “Take- over”; Jay-Z just said it once in passing in the middle of a verse. It’s the kind of referential vocal phrasing that occurs all the time in music. Copyright law actually permits such “sound-alike” recordings. But in the risk-averse world of the major labels, the rules are different:

Hip Hop: Like when he said, “Fame,” that was an interpolation of a David Bowie record. Jay didn’t sample that record, but he said it just like David said it, in the same context.

Kembrew: Are you saying that you have to get permission if you end up sounding like David Bowie when you just say the word “fame”?

Hip Hop: Yeah, if you sound like him… If you say a hook like somebody else said it, or you say a phrase like somebody else said it. Sometimes it can be a short saying, and [the copyright owners] will be like, “Okay, whatever.” Like Jay might start a record off singing a little bit of Biggie verse, and depending on how long that verse is determines whether the person who owns it wants to come in and say, “Hey, we want a percentage of that,” or, “Don’t worry about it.”

Many artists, scholars, and critics have argued that the growth of twentieth-century jazz music would have been similarly stunted if the jazz musicians of the time—who regularly riffed on others’ songs—had to obtain permission or a license from music publishers for the use of every sonic fragment they improvised upon. Others disagree that the sample clearance system has had any negative impact on creativity. One of these dissenters is Dean Garfield, vice president of anti-piracy at the Motion Picture Association of America (MPAA), who formerly worked for the Recording Industry Association of America (RIAA). He doesn’t believe that the requirement to clear samples hindered anyone’s music. “If one person doesn’t clear a snippet, you could just use another snippet from someone else who would clear it,” says Garfield in denying Chuck D’s assertion that the sample clearance system changed the way Public Enemy made music. “I think Chuck D may say that today because he finds it convenient to say that. But it’s not true.”

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