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September 1, 2011 9:31 AM   Subscribe

Copyright law in micrcosm, or, Why Alan Lomax is a co-author of Jay-Z's "Takeover".
posted by Horace Rumpole (68 comments total) 20 users marked this as a favorite

 
This puts me in mind of the column Dave Marsh wrote shortly after Lomax's death, in which he asserted, "Sometime soon, we need to figure out why it is that, when it comes to cultures like those of Mississippi black people, we celebrate the milkman more than the milk."

These issues -- of collective vs. individual "ownership" of cultural artifacts, influence vs. appropriation vs. homage -- they are thorny ones and of persisting interest to folklorists and music lovers alike.
posted by FelliniBlank at 9:41 AM on September 1, 2011 [3 favorites]


KRS-One samples a guitar riff from “Inside Looking Out” by Grand Funk Railroad — listen at 6:28.

I didn't hear it at all.
posted by cashman at 9:42 AM on September 1, 2011


Whoops, I meant to link the more readable print-ready version of that article.
posted by FelliniBlank at 9:43 AM on September 1, 2011


KRS-One samples a guitar riff from “Inside Looking Out” by Grand Funk Railroad — listen at 6:28

nonono. Showbiz did. KRS One rapped and made loud "WOOP WOOP" sounds on it.

A propos of nothing, IMO the Animals version is far superior to the Grand Funk version.
posted by Hoopo at 10:01 AM on September 1, 2011


So that’s how a folk song collector wound up as the legal co-author of a Jay-Z diss track. I can’t think of a better illustration of the copyright system’s dysfunction than that.

How is that dysfunction? As a songwriter and producer, I don't see what the problem is. Does Jay-Z have a problem with it? I can't imagine that he does.
posted by The World Famous at 10:05 AM on September 1, 2011


Oh, and the two-volume set of those prison recordings that includes "Rosie" is stupendous, especially my fave track, "O'Berta".
posted by FelliniBlank at 10:05 AM on September 1, 2011


the Animals version is far superior to the Grand Funk version

like saying the products of a bakery is preferable to dumpster diving.

Meanwhile, I cringe at these kind of stories because including Lomax makes it so easy to see the problem as "one bad apple" when everything associated with this aspect of the record industry is upside down and corrupt.
posted by victors at 10:08 AM on September 1, 2011


Quite apart from the definitely thorny issues of "ownership" of cultural artifacts, influence, appropriation, etc.,...

May I kind of geek out at the trackback tree? Tracing the DNA of a song is always kind of interesting, and the link at the bottom of the article shows a number of other musical influence trees. So cool!
posted by LN at 10:08 AM on September 1, 2011 [2 favorites]


How is that dysfunction?

A guy who didn't write or perform a song is able to claim a chunk of a song six degrees of separation from the one in question. Even cocaine hasn't been stepped on that much.
posted by yerfatma at 10:11 AM on September 1, 2011 [9 favorites]


How is that dysfunction? As a songwriter and producer, I don't see what the problem is.

The problem is that, by this logic, if someone makes a field recording of a song you wrote and performed, he could copyright it and charge people - including you - cash or points for sampling it. And you wouldn't receive a dime.

Defenders of the copyright system insist that it is there to protect the interests of, and create incentives for, the creators of music and other cultural products. This precedent protects the interests of middlemen rather than creators, and creates a disincentive for people to create new music - so it does exactly the opposite of the stated goal of copyright. Thus the 'dysfunction.'
posted by googly at 10:13 AM on September 1, 2011 [5 favorites]


The World Famous: “How is that dysfunction? As a songwriter and producer, I don't see what the problem is. Does Jay-Z have a problem with it? I can't imagine that he does.”

You think engineers should get songwriting credits? That sounds... a little odd.
posted by koeselitz at 10:15 AM on September 1, 2011


You think engineers should get songwriting credits? That sounds... a little odd.

"I would like to dedicate this Grammy to my loving wife who has always been there for me, Mrs. Geraldine AutoTune."
posted by robocop is bleeding at 10:19 AM on September 1, 2011 [1 favorite]


The problem is that, by this logic, if someone makes a field recording of a song you wrote and performed, he could copyright it and charge people - including you - cash or points for sampling it. And you wouldn't receive a dime.

What legal authority are you relying on in making that statement? I'm not an intellectual property lawyer, but I am both a lawyer and a published songwriter/producer, and I have a hard time believing that you're right about that.

This precedent protects the interests of middlemen rather than creators, and creates a disincentive for people to create new music - so it does exactly the opposite of the stated goal of copyright.

I know a lot of musicians and I've never noticed any of them being at all reluctant to create new music. There's certainly a disincentive to use someone else's old music as part of one's new music in a recognizable or minimally-transformative way. But the incentive is to create music that is unambiguously and undisputably new music.

You think engineers should get songwriting credits? That sounds... a little odd.

I think that engineers should sometimes get songwriting credits. I don't think that Lomax having the rights in the first place is a good thing. But I have no problem with a system that requires subsequent users of a work to compensate the owner of the rights.
posted by The World Famous at 10:19 AM on September 1, 2011 [1 favorite]


And then you've also got the related phenomenon lately of acts (like Squeeze) re-recording their old songs specifically to get back publishing/placement rights to their own material that their old record companies hold in perpetuity, having traded them for advances, etc.. Graham Parker did this and blogged about the issue (after his very nice self-covers were briefly released without his say-so).
posted by FelliniBlank at 10:22 AM on September 1, 2011


Er, to get back the master rights -- they retain the publishing rights.
posted by FelliniBlank at 10:24 AM on September 1, 2011


And then you've also got the related phenomenon lately of acts (like Squeeze) re-recording their old songs specifically to get back publishing/placement rights to their own material that their old record companies hold in perpetuity, having traded them for advances, etc..

That's an issue that I think will become more and more problematic legally as electronic music becomes more and more prevalent and part of the cultural landscape over the next 10-15 years. Record labels keep master recordings, and it's very difficult, generally, for an artist or band to perfectly replicate the sound of an original recorded performance. But electronic music technology changes that, such that a "master recording" can actually be flawlessly replicated after the fact as long as the artist saved the plug-ins and virtual instrument settings. Live vocal tracks and live instrument recordings are the exception to that. But an instrumental electronic track can, right now, be completely and flawlessly re-recorded to sound exactly the same as the "master recording." The more technology advances in that area, the more problems will arise out of labels' retention of rights in master recordings.
posted by The World Famous at 10:26 AM on September 1, 2011 [1 favorite]


You think engineers should get songwriting credits? That sounds... a little odd.

You'd be amazed at how much engineers contribute to songs, especially in electronic music.

But an instrumental electronic track can, right now, be completely and flawlessly re-recorded to sound exactly the same as the "master recording."

This has been done multiple times when producers couldn't clear a re-release/remix with the original label:

CJ Bolland - The Prophet

Paul Oakenfold - The Prophet

Laurent Garnier - The Man With The Red Face

Mark Knight & Funk Agenda - The Man With The Red Face
posted by empath at 10:33 AM on September 1, 2011 [1 favorite]


But the incentive is to create music that is unambiguously and undisputably new music.

OK, well as long you decide what is disputably new then I'm OK with whatever you come up with.

Otherwise I'd be suing you into non-existence for every single bass lick, chord progression, EQ setting, melody fragment (including 0 notes in the case of Jay-Z) and vocal phrasing that you, personally, stole from other musicians and recording artists. You have been stealing shit your entire career and getting away with it - making a living at it. You have decided that this stealing stops with you and anybody stealing from you is a criminal. Have I got that about right?
posted by victors at 10:35 AM on September 1, 2011 [1 favorite]


What legal authority are you relying on in making that statement? I'm not an intellectual property lawyer, but I am both a lawyer and a published songwriter/producer, and I have a hard time believing that you're right about that.

I'm not going to get into an internet pissing-contest with you about who has the requisite credentials to interpret legal precedents (if it matters, like you, I'm a published songwriter and, like you, I'm not an intellectual property lawyer, so I'd say we're even-steven).

You asked why Hein might see the Lomax case as an illustration of the copyright system's "dysfunction." Defenders of copyright say that it exists to provide incentives to individuals to create new music (and other things) by ensuring that they will be able to exclusively profit from their creations. This may or may not be a good thing (I for one think its a good thing), but many critics argue that the current copyright system does not in practice do this: instead, it rewards rent-seekers and other third parties like Lomax, who recorded the songs but played no role in creating them.

It may well be true, as you argue, that this fact does not discourage musicians from creating new music. But it nevertheless provides no additional incentives to do so.
posted by googly at 10:39 AM on September 1, 2011


You have been stealing shit your entire career and getting away with it - making a living at it. You have decided that this stealing stops with you and anybody stealing from you is a criminal.

This is the baby boomers in a nutshell.
posted by Meatbomb at 10:39 AM on September 1, 2011 [9 favorites]


I know a lot of musicians and I've never noticed any of them being at all reluctant to create new music. There's certainly a disincentive to use someone else's old music as part of one's new music in a recognizable or minimally-transformative way. But the incentive is to create music that is unambiguously and undisputably new music.

Musicians make music because they like making music, and anybody making music for any other reason isn't making music worth a damn.
posted by empath at 10:41 AM on September 1, 2011 [2 favorites]


empath: “You'd be amazed at how much engineers contribute to songs, especially in electronic music.”

Sometimes. But Alan Lomax prided himself on not contributing anything to songs.
posted by koeselitz at 10:42 AM on September 1, 2011 [2 favorites]


But I have no problem with a system that requires subsequent users of a work to compensate the owner of the rights.

Neither do I . . . to a point. But say Lomax were actually the author -- he's been dead over 10 years, and he "created" the song in question in 1948ish, so he or his estate has received compensation (or credit, or gave permissions) for 63 years now.

I'm totally fine with the originator(s) getting name credit for as long as our culture remembers the names (for instance, there are some Stephen Foster songs -- and again, authorship there is complicated -- that most people have no idea he wrote).

But at some point, "Born to Run" or what have you has to start belonging to all of us so that anyone can use it for free. One could argue that it already is in the public domain in every way except legally, so entrenched is it in the broader culture. The question is when that point is fairly reached. I guess I'd put it at the death of the artist at latest. Hell, I don't much believe it should be legal to inherit land or money, but inheriting copyrights seems completely absurd.
posted by FelliniBlank at 10:42 AM on September 1, 2011 [1 favorite]


I think this discussion is totally missing the problem: period of copyright.

Given that culture (especially pop music) now has a shelf date in weeks or maybe hours, the idea of "life of the author" + 70 years makes no sense in terms of favoring the production of culture.

Turn back the clock to the original 7 years and the branches of that tree disappear.
posted by ennui.bz at 10:53 AM on September 1, 2011


I'm not going to get into an internet pissing-contest with you about who has the requisite credentials to interpret legal precedents (if it matters, like you, I'm a published songwriter and, like you, I'm not an intellectual property lawyer, so I'd say we're even-steven).

It's not a pissing contest and it's not about who has credentials. I admit to not knowing what the legal rule is. You made an assertion about what you claim is the legal rule and I asked you what you're basing your assertion on.

including 0 notes in the case of Jay-Z

Jay Z used a portion of an actual audio recording to which Lomax owned a portion of the rights. Lomax didn't write any of the notes of the original recording that he made either. It's not about notes. It's about owning rights in something. Do I think it's just and fair that Lomax owns the rights to something he didn't write or pay for to begin with? No.

You have been stealing shit your entire career and getting away with it - making a living at it. You have decided that this stealing stops with you and anybody stealing from you is a criminal. Have I got that about right?

No, you do not have it anywhere near right.

But it nevertheless provides no additional incentives to do so.

So what?

The question is when that point is fairly reached. I guess I'd put it at the death of the artist at latest. Hell, I don't much believe it should be legal to inherit land or money, but inheriting copyrights seems completely absurd.

I agree.

I think this discussion is totally missing the problem: period of copyright.

Exactly.
posted by The World Famous at 10:56 AM on September 1, 2011


The World Famous, did you click on the link and look at the chart at the bottom?
posted by hyperizer at 10:57 AM on September 1, 2011


Never mind, our posts crossed.
posted by hyperizer at 10:58 AM on September 1, 2011


Jay Z used a portion of an actual audio recording to which Lomax owned a portion of the rights. Lomax didn't write any of the notes of the original recording that he made either. It's not about notes. It's about owning rights in something. Do I think it's just and fair that Lomax owns the rights to something he didn't write or pay for to begin with? No.

So who does get the copyright then if not Lomax? Suthor: unknown. Performer: possibly unknown. Without some sort of "first to market" rule, any record company can dredge up some 'delta bluesman' got to court and claim original performance, or even creator rights. If any record company could do that, why would you (Lomax) ever try to sell recordings of the music? The purpose of copyright law is to stimulate production of marketable items of culture... and I think in the case of Lomax, the copyright law worked to those aims. (you could argue that this inevitably leads to the commoditization of culture, this is evil etc...)

The problem is that we shouldn't be talking about it 70 years after the fact. And it's clear the the long trail of ownership that extending copyright to over 100 years creates, is a burden on the production of culture i.e. is against the purpose of copyright law.

There's no reason why artists or producers should be able to charge rent on their works even 20 years after the original production, much less 100 years.
posted by ennui.bz at 11:17 AM on September 1, 2011 [1 favorite]


There's no reason why artists or producers should be able to charge rent on their works even 20 years after the original production, much less 100 years.

On the one hand, I'm inclined to agree with you and go even farther with it to say that the reasons to allow artists or producers to charge rent on their works at all are pretty slim, since I think they are more an incentive for distribution than an incentive to creation.

On the other hand, if we're going to create a legal regime for the purpose of incentivizing creation and distribution of music, why not have rights last at least until the death of the holder of the rights?
posted by The World Famous at 11:22 AM on September 1, 2011


Also, when you argue that Lomax shows problems with copyright, you are putting yourself into the same camp as Disney i.e. "owners" should have strong rights over reproduction of works of culture.

The spirit of copyright is that works of culture belong to everyone and we grant rights in order to stimulate production.

why not have rights last at least until the death of the holder of the rights?

because then the artist has no incentive to produce after the big 'hit." Perpetual rights create an incentive to aim for "hits" over stable production and are a subsidy to the business interests that inevitably obtains shares of those rights.

But basically, charging rent is only useful if it stimulates production. If becoming a "rock" star were the only incentive for making music that would be one thing, but it's clear that people will produce even if the economic returns are negligible. So, there's little benefit to society in extending those rights.
posted by ennui.bz at 11:27 AM on September 1, 2011 [1 favorite]


because then the artist has no incentive to produce after the big 'hit."

I strongly disagree with the assertion that, absent financial incentives, a musician has no incentive to create music.

Perpetual rights create an incentive to aim for "hits" over stable production and are a subsidy to the business interests that inevitably obtains shares of those rights.

So what? There is no dearth of non-hit musicians and music that is not created in an effort to score a hit.

If becoming a "rock" star were the only incentive for making music that would be one thing, but it's clear that people will produce even if the economic returns are negligible. So, there's little benefit to society in extending those rights.

I agree. As I said above, the incentive is not to produce but to distribute. The songs to which Lomax held the rights were created in spite of a lack of financial incentive. The incentive created by copyright was the incentive to disseminate that music to the masses.
posted by The World Famous at 11:36 AM on September 1, 2011


Is this the thread where I post Eldred v. Ashcroft?

The practical result of this was to prevent a number of works from entering the public domain in 1998 and following years, as would have occurred under the Copyright Law of 1976. Materials which the plaintiffs had worked with and were ready to republish were now unavailable due to copyright restrictions.

They tried to stop the perpetual extension of copyright once upon a time, but SCOTUS decided with M.I.C.K.E.Y. M.O.U.S.E.
posted by j03 at 12:09 PM on September 1, 2011 [1 favorite]


The folk music revival of the late '50s and the early '60s had a lot of copyright shenanigans associated with it, as this article's discussion of Alan Lomax shows. A common trick was to take a public domain song, make minor modifications to it, and then file copyright on the new "arrangement," because the arrangement of a song can be copyrighted just as easily as the original song itself. A friend of mine whose father was an original member of the Weavers confirmed this for me, but this fact is also mentioned frequently in books written about the 50s/60s folk revival. For example, Randy Sparks, the guy who founded the New Christy Minstrels, would have the dates marked off on his calendar when songs by Stephen Foster would lapse into the public domain, so that he could record and copyright new arrangements before anyone else recorded the songs.
posted by jonp72 at 12:27 PM on September 1, 2011 [2 favorites]


> But I have no problem with a system that requires subsequent users of a work to compensate the owner of the rights.

Man, there's a bunch of carpenters, masons, electricians and plumbers who'd love a cut of that scam right about now.

"You selling that house? You need to pay the people who built it some of the proceeds."

posted by mmrtnt at 12:38 PM on September 1, 2011 [2 favorites]


I agree. As I said above, the incentive is not to produce but to distribute. The songs to which Lomax held the rights were created in spite of a lack of financial incentive. The incentive created by copyright was the incentive to disseminate that music to the masses.

There's no problem with incentivizing people to distribute music for free.
posted by empath at 12:45 PM on September 1, 2011


"You selling that house? You need to pay the people who built it some of the proceeds."

You selling that house? You should probably check to make sure you actually own the property rights you're purporting to sell. You renting that house? Do you own it?

Is your beef with the fact that Jay Z has to pay the owners of the rights, or that anyone owns rights in the first place? I ask because the linked article doesn't seem to have any problem with Jay Z owning the rights to his music.

There's no problem with incentivizing people to distribute music for free.

I agree. The barriers to distribution that existed in the 1950s no longer exist, so it makes sense to revisit the policies that were ostensibly intended to help overcome those barriers.
posted by The World Famous at 12:49 PM on September 1, 2011


Jay Z used a portion of an actual audio recording to which Lomax owned a portion of the rights.

Did you even read the article? There are zero notes in Jay-Z's work attributable to Lomax. Lomax gets a sizable nonzero share of Jay-Z's work for zero contribution to that work. This is how Lomax got part of the rights for Jay-Z's Takeover. (1) Jay-Z samples KRS-One rapping, "Watch out, we own New York!" from Sound of Da Police; (2) In a completely different part of Sound of Da Police (not sampled by Jay-Z), there is a sample of a bass riff from Grand Funk Railroad's "Inside Looking Out." (The article says it's a guitar riff, but after looking at the YouTube clip, it's a bass riff.) This riff appears about 0:24 in Sound of Da Police, but it's so low in the mix and accompanied by saxophone samples (I think) and the boom-bap drum beat that some people on Metafilter can't even hear it. (3) The Grand Funk Railroad riff comes from an improvisational jam section of "Inside Looking Out" probably improvised in the studio by Grand Funk bassist Mel Schacher. This bass riff doesn't appear in the Animals version of "Inside Looking Out," and it certainly doesn't belong to Alan Lomax either. (4) The Animals version of "Inside Looking Out," although inspired the chain gang chant "Rosie," is substantially from its original inspiration, with new lyrics, electrified instrumentation, and a couple of Yardbirds-style rave-ups thrown in for good measure. (5) Alan Lomax's claim to "Rosie" is based on taxpayer-funded work for the Library of Congress with copyright (to the extent any valid copyright can be tracked down for it) outright stolen from black men working in a Jim Crow prison under slave labor conditions.
posted by jonp72 at 12:58 PM on September 1, 2011 [8 favorites]


Did you even read the article? There are zero notes in Jay-Z's work attributable to Lomax.

Did you even read my comment? I acknowledged that there are zero notes in Jay Z's work attributable to Lomax. And I pointed out that it's not about notes. Indeed, there are no notes in Lomax' original recording that are attributable to Lomax. It's not about the notes. It's about the use of a recording in which Lomax held some of the rights, regardless of what part of the recording was used.

As for the rest of your comment where you paraphrase the article, yes, I read the article.
posted by The World Famous at 1:20 PM on September 1, 2011


There's certainly a disincentive to use someone else's old music as part of one's new music in a recognizable or minimally-transformative way. But the incentive is to create music that is unambiguously and undisputably new music.

But why? Why have we decided that value lies in novelty? We have created a system that fetishizes the idea of originality (which is at best a relative thing) and that makes re-telling, re-using, re-contextualizing, and generally stirring the pot into something that is expensive at best and impossible if the rights holder(s) don't want to play. Why did we decide that the one approach is what we want to encourage, and that the other—arguably the prevalent approach throughout history—is what we want to discourage?
posted by Trace McJoy at 1:30 PM on September 1, 2011


A common trick was to take a public domain song, make minor modifications to it, and then file copyright on the new "arrangement," because the arrangement of a song can be copyrighted just as easily as the original song itself.

And it remains a common activity.
posted by FelliniBlank at 1:31 PM on September 1, 2011


This is the baby boomers in a nutshell.

Still mad at mom and dad ? Get over it.
posted by y2karl at 1:40 PM on September 1, 2011 [1 favorite]


The story of Bittersweet Symphony by the Verve is even more messed up. Allen Klein, the ruthless rock 'n' roll manager immortalized in the Beatles' You Never Give Me Your Money, got 100% of the royalties to Bittersweet Symphony and broke up the Verve in the process. Klein got 100% of the royalties even though (1) the recording sampled the Last Time by the Andrew Oldham Orchestra bears little resemblance to the Rolling Stones version of the Last Time and was mostly cooked up by anonymous studio musicians who have long been unremunerated for their work; (2) the Rolling Stones shouldn't haven't the copyright free and clear on the Last Time anyway, because they nicked the song from the Staple Singers, This May Be the Last Time; and (3) other artists who were sampled by the Verve on Bittersweet Symphony, such as George Suranovich and his drum break from the song Doggone by Love don't get diddly because Allen Klein has already sucked out 100% of the royalties.

If the copyright regime that broke up the Verve had been in place in the late 1960s and early 70s, Led Zeppelin would have been sued into oblivion after releasing their first album. In addition, note how the Rolling Stones pretty much got off scot free for nicking the Staple Singers, but Jay-Z has to pay tribute money to the Alan Lomax estate, even though Lomax did not contribute a single vocal, beat, lyric, or note to the final song.
posted by jonp72 at 1:42 PM on September 1, 2011 [8 favorites]


I know a lot of musicians and I've never noticed any of them being at all reluctant to create new music. There's certainly a disincentive to use someone else's old music as part of one's new music in a recognizable or minimally-transformative way. But the incentive is to create music that is unambiguously and undisputably new music.

Actually, I would argue that the current copyright regime has made hip hop and sample-based music worse, not better. As the case of Bittersweet Symphony demonstrates, you can get 100% of the royalties for a song no matter how microscopically small a sample is compared to the total work. In fact, case law does not make any distinction about whether the sample was used "in a recognizable or minimally transformative way." In the Sixth Circuit Court of Appeals case Bridgeport Music, Inc. v. Dimension Films, NWA got sued by George Clinton for taking a three-note sample from Funkadelic's Get Off Your Ass and Jam, even though the original sample had been altered so much that, according to the original ruling in the case, "no reasonable juror, even one familiar with the works of George Clinton, would recognize [it] without having been told of its source" (cite). The result is that multilayered sample-based music, such as the Beastie Boys' Paul's Boutique, De La Soul's Three Feet High and Risin', DJ Shadow's Endtroducing, M/A/R/R/S "Pump Up the Volume," and Public Enemy's work with the Bomb Squad, is becoming financially unsustainable, because you can't give away more than 100% of the royalties to a song, even though that seems to be what the courts expect people who make sample-based music to do. Instead, what we get from a hip hop is a return to music like MC Hammer's Can't Touch This that samples music from one (and only one) recognizable song and runs that sample into the ground (e.g., Flo Rida's Right Round, Akon's Lonely).
posted by jonp72 at 2:16 PM on September 1, 2011 [1 favorite]


Why have we decided that value lies in novelty? We have created a system that fetishizes the idea of originality (which is at best a relative thing) and that makes re-telling, re-using, re-contextualizing, and generally stirring the pot into something that is expensive at best and impossible if the rights holder(s) don't want to play.

We have decided that value lies in novelty because it is possible to make a lot of money by selling novelty. But re-telling, re-using, re-contextualizing and generally stirring the pot is not expensive or impossible at all - as long as the person re-using, re-telling, re-contextualizing and generally stirring the pot is willing to do so without making money or taking credit. That means there will not be any more commercially-viable albums like Paul's Boutique or It Takes A Nation Of Millions To Hold Us Back. And that sucks, because those are brilliant albums. But it doesn't suck because nobody will ever make anything like that again. It sucks because nobody will ever make a lot of money doing anything like that again.

So, let's say we decide to redesign the system. How do you redesign it? Make it so that artists don't make any money from what they create? Fine. Artists already don't get any money if they make an album like Paul's Boutique.
posted by The World Famous at 2:19 PM on September 1, 2011


Jay-Z Versus the Sample Troll: The Shady One-Man Corporation That's Destroying Hip-Hop
posted by jonp72 at 2:25 PM on September 1, 2011


Let me just add that I don't personally have any problem with the use of samples as long as they're sufficiently transformed to a point where I think something new has actually been created. I think a legal regime that applies a reasonable rule along those lines would make sense.
posted by The World Famous at 2:58 PM on September 1, 2011


My favorite part of this excellent blog is the Music page, mostly consisting of awesome Megamixes that mashup all these various players in the webs into a single song. Special recommendation: When The Levee Breaks.
posted by Potomac Avenue at 3:01 PM on September 1, 2011


So, let's say we decide to redesign the system. How do you redesign it? Make it so that artists don't make any money from what they create? Fine. Artists already don't get any money if they make an album like Paul's Boutique.

Most artists don't make any money, period, and copyright doesn't really help with that.

Copyright is about controlling copies; before mechanical or electrical reproduction art still got made, and in the absence of copyright the old ways of making money off art still exist: performance fees, work for hire, patronage. Sale of original works. Teaching.

But really, I'm not against copyright; I think most problems could be ameliorated by 1) shortening the length of copyright (my vote would be 10 years, renewable once for a fee) 2) instituting a more nuanced system of penalties for violation (a studio ripping off another studio's movie might actually warrant a $250k fine while someone posting a video to YouTube which has a pop song soundtrack should probably get a little less) and 3) more broadly interpreted Fair Use (probably spelled out more clearly). In a perfect world I would add 4) copyrights can only be held by individuals and not by corporations, but I'm willing to let that one slide for the other three.
posted by Trace McJoy at 4:29 PM on September 1, 2011


It's not about the notes. It's about the use of a recording in which Lomax held some of the rights, regardless of what part of the recording was used.

But that's precisely the crux of the disagreement. What's wrong with the current copyright regime is it has no sense of proportionality. It doesn't seem to bother you if Lomax gets royalties to Jay-Z's song, even though Lomax contributed zero to the song. If you contribute 0%, you should get 0%.
posted by jonp72 at 6:27 PM on September 1, 2011 [1 favorite]


Hey Metafilterers. I'm the guy who wrote the original blog post, and I'm really enjoying all the lively discussion going on around it, here and elsewhere. I agree with all of you who are posting in support of shortening copyright terms to reduce rent-seeking. As a musician myself, I'll continue making work whether I get paid or not, and while I'd rather get paid, the idea of my estate having exclusive control of my work after death frankly seems creepy. And I firmly believe that sampling recordings should be treated the same as using existing melodic and rhythmic fragments and chord progressions. From experience, I can tell you that identifying the right sample and processing it right can take more work and more of my personal input than stringing together cliched chords and riffs into an "original" tune. I'd like to see a compulsory licensing scheme for samples similar to the one that exists for cover songs. Anyway, thanks again to all of you for reading and debating.
posted by ethanhein at 6:41 PM on September 1, 2011 [5 favorites]


Thanks for the blog post, Ethan, and welcome to MetaFilter. I encourage you to take a look at our Music section if you haven't already.
posted by Horace Rumpole at 7:01 PM on September 1, 2011


Hey, ethanhein, thanks for dropping by. As Potomac Avenue said above, the megamixes and "genealogies" are groovy.
posted by FelliniBlank at 7:13 PM on September 1, 2011


The World Famous: “I know a lot of musicians and I've never noticed any of them being at all reluctant to create new music.”

Do you know anybody who makes hip hop? That's one genre that has gotten measurably worse since the copyright regime caught up with it. Seriously, creativity was stalled in massive ways when people were forced by lawsuits to stop sampling almost entirely. A music built on patchworks of old soul records and great reused beats was basically forced out of the public eye and denied any chance to make money.

“There's certainly a disincentive to use someone else's old music as part of one's new music in a recognizable or minimally-transformative way. But the incentive is to create music that is unambiguously and undisputably new music.”

Ambiguity is part of music. And re-use is part of music. These are things that have been with us for many years. I can sympathize with what you're saying, but as a fellow musician I simply don't think it's the case that this copyright regime rewards creativity in a balanced or beneficial way. Things that were possible even ten years ago are not possible today because of a copyright arms race that ever tightens its grip on music.

Not to mention the fact that industry groups like the RIAA which don't care one whit about artists have gotten to the point where they control many copyrights.
posted by koeselitz at 10:17 PM on September 1, 2011


Do you know anybody who makes hip hop? That's one genre that has gotten measurably worse since the copyright regime caught up with it.

I do, yes. And I agree that hip hop has gotten worse since copyright caught up with it and started discouraging artists from using other artists' recordings to make money.

Like I said above, I don't personally have any problem with the use of samples as long as they're sufficiently transformed to a point where I think something new has actually been created. I think a legal regime that applies a reasonable rule along those lines would make sense.

Ambiguity is part of music. And re-use is part of music. These are things that have been with us for many years. I can sympathize with what you're saying, but as a fellow musician I simply don't think it's the case that this copyright regime rewards creativity in a balanced or beneficial way.

I agree with you.

Things that were possible even ten years ago are not possible today because of a copyright arms race that ever tightens its grip on music.

The harder it is for people in the music business to make money, the more fiercely they will fight over what little money there is to be made. A copyright regime that facilitates that is problematic. It is doubly so where it hurts the creators and favors the businesspeople.
posted by The World Famous at 10:25 PM on September 1, 2011


> Is your beef with the fact that Jay Z has to pay the owners of the rights, or that anyone owns rights in the first place?

My "beef" is that someone who operated a tape recorder 70-some years ago, still gets paid for it.

I operate a computer every day, and I would love to keep getting money from doing it long after I've stopped.
posted by mmrtnt at 7:29 AM on September 2, 2011


My "beef" is that someone who operated a tape recorder 70-some years ago, still gets paid for it.

Then everything about Jay Z's music is an irrelevant distraction, isn't it?

I operate a computer every day, and I would love to keep getting money from doing it long after I've stopped.

What does that have to do with anything? I talk into a microphone every day and I would love to get paid what Jay Z gets paid for talking into a microphone. The fact that you and I operate similar machinery to what is operated by people who make royalties is irrelevant to the question of whether or not royalties are a good idea.

There are actually several different issues that people are complaining about in this thread, and I think that muddies the issues a bit because we're being dismissive of the various points being made primarily on the basis that they do not address every issue complained about. Such is the nature of America's copyright law mess, I suppose.

Your complaint, apparently, is that Lomax didn't actually create the music to which he holds rights. I am fully on board with that complaint.

Others complain about the way that rights holders in a musical work hold rights (or a portion of rights) in the entire work, regardless of what portion of the work they actually participated in or created. That's what leads to the complaint that Lomax should not be paid when someone samples a part of a song that contains "no notes" that he created or recorded. That complaint I have a harder time with. Let me explain. Let's say I write the main guitar riff on a song and I play that guitar line on the master recording. And I get a percentage of the songwriting credit and publishing, sync and mechanical rights in that song as a result. The song becomes popular. Somebody makes a movie and wants to use the song in the movie - because the song is popular. But they don't need the whole 4 minutes of the song. They just use a chorus or a bridge or whatever and that section doesn't actually include the guitar riff that I wrote and played. Nevertheless, I get paid for the use of the song. Why? Because I wrote a percentage of the song and I own a percentage of the rights. And because the song, arguably, would not be popular enough to put in a movie if it didn't have the part I wrote - even if that part isn't used in the movie. The chorus to Brown Sugar would arguably not be as well-known if it weren't for the intro to the song being so catchy. So if Mick Taylor wrote the intro and Keith Richards wrote the chorus (hypothetically speaking), Mick Taylor should still get royalties when only the chorus is played in a Coke commercial.

Another complaint is that the duration of copyright is too long - that Lomax's estate should not be collecting royalties long after Lomax' death. That issue is also so tangential to the Jay Z analysis that discussing it in the context of Jay Z's sample just muddies the waters. Jim Morrison is long dead, too, and Jay Z's song contains a Doors sample. If we're going to talk about copyright duration after a rights-holder's death, let's just talk about that instead of confusing the issue by making the discussion about hip hop sampling.

Another complaint is about the way that rights work in the context of sampling and the chilling effect that the current legal regime has on artists who would like to use samples of existing recordings - not notes from existing compositions but portions of the recordings themselves - in the creation of new works. This is the issue that the Jay Z example brings to mind most quickly and also the issue that makes it difficult to discuss the other issues in this context. And this is an area where our legal system is extremely inadequate, as well. But, in my opinion, there are variations and degrees when it comes to sampling, and there is a quantitative and qualitative difference between Paul's Boutique on the one hand and Puff Daddy's wholesale use of hits from the 80s as backing music for rap. I think the legal system should recognize that spectrum of use and work to encourage the former instead of the latter.

And yet another complaint is about people other than the original artists finding ways to purchase or otherwise acquire royalty rights in the compositions and recordings of others. Although I have an immediate emotional reaction against that as a songwriter/producer/performer, the lawyer in me takes a step back and recognizes that there are some serious problems with curtailing the rights of artists by preventing them from selling their rights. It's a tricky issue and I think it comes down to more subtle problems with the way that rights ownership and transfer works rather than a global problem with rights in the first place.

And, finally, there's the complaint that nobody should be allowed to profit from creative work in the first place, for a variety of reasons. On an intellectual level, I'm actually somewhat sympathetic to this view. I think that, with the technological advances of the last 20 years in recording, producing, composition, and digital distribution and networking, the incentives that form the policy basis for much of our music copyright laws have become far less relevant than they used to be. I also see the merit in the argument that profit from creative works was ripped from the hands of the actual creators long ago and that the incentives actually just operate to encourage people in suits to acquire rights and profit from them. But here's one area where I think that argument breaks down: People make lots of money from creative works by using those creative works in the promotion of other products. They use songs in beer commercials and movies and those songs make money for them. The people who created those songs should be compensated when someone makes money by using the songs, period.

And that's another place where Jay Z comes in. Jay Z makes lots of money by using portions of the recordings created by other people. Our current system for compensating those people is, indeed, dysfunctional. But if Jay Z uses a recording I made in order to make a lot of money for himself, I think he should pay me.
posted by The World Famous at 9:57 AM on September 2, 2011 [1 favorite]


I hope that if jay Z is readin g this he'll have a look at the bitchin' stuff I have available for sampling over in MeFiMu. My rates are super reasonable.
posted by Meatbomb at 10:20 AM on September 2, 2011


There are actually several different issues....Your complaint, apparently...Others complaint...Another complaint....Another complaint...And yet another complaint...And, finally, there's the complaint....

For all your overwrought legal technical maneuvering, rationalizing and illustrating just how nasty and complicated it all is, ethan does a perfectly succinct and fair job of not only nailing the problems but posing perfectly legit alternatives.

The bottom line to all your wriggling is that you can not, in any sane way, justify all your thievery except by making completely arbitrary rules about what is "novelty" or original vs. stealing -- your suggestion that courts gets involved to determine which is which and to "encourage" certain types of art vs others is a dead giveaway what your real motives are.
posted by victors at 11:13 AM on September 2, 2011


there is a quantitative and qualitative difference between Paul's Boutique on the one hand and Puff Daddy's wholesale use of hits from the 80s as backing music for rap. I think the legal system should recognize that spectrum of use and work to encourage the former instead of the latter.

Yes, but the practical result of the Bridgeport Music v. Dimension Films decision, which allows sample trolls to conceivably get 100% of the money for a rap song that samples a highly altered three-note snatch of a George Clinton record, is to privilege Puff Daddy-style rap over hip hop like Paul's Boutique. Given the current copyright regime and current case law, it is way easier to negotiate with only one rights-holder (e.g., Rick James "Superfreak" sampled in MC Hammer's "U Can't Touch This") than to negotiate with, say, the 30 to 50 rights-holders you might have for a track on Paul's Boutique.
posted by jonp72 at 11:18 AM on September 2, 2011


For all your overwrought legal technical maneuvering, rationalizing and illustrating just how nasty and complicated it all is

I don't think I did any legal or technical maneuvering or rationalizing. I was just talking informally about the numerous issues that I think people in this particular thread are getting mixed up as they argue. Sorry you thought it was overwrought. When I'm getting paid to write, I do write more concisely. I guess everyone's a critic, though.

ethan does a perfectly succinct and fair job of not only nailing the problems but posing perfectly legit alternatives.

Ethan's brief comment is a good one, and I like the article linked in the FPP. I don't think his brief comment adequately addresses all the issues, and I suspect that he would agree with me there.

The bottom line to all your wriggling

Wriggling? What in the bloody hell are you talking about?

is that you can not, in any sane way, justify all your thievery

The hell? Justify all my thievery? What thievery? Justify? What are you talking about?

except by making completely arbitrary rules about what is "novelty" or original vs. stealing -- your suggestion that courts gets involved to determine which is which and to "encourage" certain types of art vs others is a dead giveaway what your real motives are.

I do not advocate arbitrary rules. I only suggest that courts get involved where people have already gone to court to sue. The courts are, in those cases, already involved. If people involve courts, then I think courts should apply reasonable, effective, and good rules. Don't you? But I never said that courts should determine anything about "stealing" or encourage certain types of art v. others.

You say that what you mistakenly pretend I wrote "is a dead giveaway what [my] real motives are." What the hell are you talking about?

jonp72: Yes, but the practical result of the Bridgeport Music v. Dimension Films decision, which allows sample trolls to conceivably get 100% of the money for a rap song that samples a highly altered three-note snatch of a George Clinton record, is to privilege Puff Daddy-style rap over hip hop like Paul's Boutique.

I absolutely agree with you. 100% Without reservation. And, as I think I said pretty clearly above, I think that legal regime should change.
posted by The World Famous at 11:36 AM on September 2, 2011


Just for giggles, here's a list of the samples from the Beastie Boys, Hey Ladies.

Hey D.J. by World's Famous Supreme Team (1984)
Magilla Gorilla by Hoyt Curtin (1963)
Ain't It Funky Now by James Brown (1969)
Jungle Boogie by Kool & the Gang (1973)
The Ballroom Blitz by Sweet (1973)
Funky President by James Brown (1974)
Machine Gun by Commodores (1974)
Holy Ghost by Bar-Kays (1978)
Shake Your Pants by Cameo (1980)
High Power Rap by Crash Crew (1980)
Come Let Me Love You by Jeanette "Lady" Day (1981)
So Ruff, So Tuff by Roger Troutman (1981)
Jazzy Sensation by Afrika Bambaataa and The Jazzy 5 (1981)
Change the Beat (Female Version) by Fab 5 Freddy feat. Beeside (1982)
Pumpin' It Up (Special Club Mix) by P-Funk All Stars (1983)
Party Time by Kurtis Blow (1983)

That's 16 samples that we know about. If all 16 of the sampled artists got 100% of the royalties, that's 1600% of the royalties, which would make many classics from the golden age of 80s and 90s rap as economically unsustainable as Springtime for Hitler in the original version of the Producers.
posted by jonp72 at 11:36 AM on September 2, 2011 [1 favorite]


Yes, that's why I used Paul's Boutique as an example.
posted by The World Famous at 11:38 AM on September 2, 2011


But I never said that courts should determine anything about "stealing" or encourage certain types of art v. others.

yea, you did: I think the legal system should recognize that spectrum of use and work to encourage the former instead of the latter.

This denial is wriggling.

Despite all your "what are you talking about?" transparent attempts to make me look stupid (thanks) it just comes across as pure projection because the original suggestion about 'the legal system' making 'quantitative and qualitative' decisions about the artistic process proves that you have no real experience, leave alone respect for what goes into music based on sampling. In tone, you sound like an know-it-all authority, but really... "what are you talking about?"
posted by victors at 12:06 PM on September 2, 2011


yea, you did: I think the legal system should recognize that spectrum of use and work to encourage the former instead of the latter.

This denial is wriggling.


A. The legal system is not the courts.
B. I said nothing about stealing.
C. Do you disagree with me that, where someone has sued (i.e. taken someone to court), the courts should apply reasonable rules?
D. Do you disagree with me that transformative use of samples should be encouraged more than non-transformative use?

Despite all your "what are you talking about?" transparent attempts to make me look stupid (thanks)

I'm not trying to make you look stupid. I'm asking you what you're talking about because I don't know what you're talking about. If anything, I'm the one who is stupid because I cannot for the life of me figure out what you were talking about when you accused me of having some hidden "real motives" and when you accused me of "thievery." You accused me of those things. Why? What are you talking about? What are you referring to when you talk about my "thievery?" What do you think my "real motives" are? I am genuinely interested in knowing that.

the original suggestion about 'the legal system' making 'quantitative and qualitative' decisions about the artistic process proves that you have no real experience, leave alone respect for what goes into music based on sampling.

When someone takes someone else to court over an alleged infringing use of prior art, the courts must make quantitative and qualitative decisions about whether or not the claim has merit. I don't think the current legal system works well in that regard. Do you?

You're now accusing me of having "no real experience, leave alone respect for what goes into music based on sampling." What do you mean by that? Are you saying you don't think I have ever made music using samples? Are you suggesting that I do not have sufficient respect for the full spectrum of all music made using samples, regardless of how those samples are used? I don't understand your accusation.
posted by The World Famous at 1:08 PM on September 2, 2011


I really am confused, victors, at your hostility. I generally agree with the points made in the linked article and I find myself agreeing with most of ethan's points and suggestions. Why the hostility? Who is it you have decided I must be and what agenda do you think I'm pushing?
posted by The World Famous at 2:03 PM on September 2, 2011


yea, I get that you are confused and I doubt we'll convince each other of anything here... perhaps this really is the first time you are hearing a challenge to the hypocrisy and culturally crippling pretzel logic that protectionist agencies go through to justify curtailing the use of samples - that would be a surprise to me based on your adopted tone of authority, but, hey, it's possible.

You can start with Lessig's Remix and work your way back to Hyde's Gift for a more compassionate point of view than what you've been defending here.
posted by victors at 3:56 PM on September 2, 2011


for a more compassionate point of view than what you've been defending here.

Wait. What point of view do you think I'm defending here?

perhaps this really is the first time you are hearing a challenge to the hypocrisy and culturally crippling pretzel logic that protectionist agencies go through to justify curtailing the use of samples - that would be a surprise to me based on your adopted tone of authority, but, hey, it's possible.

No, I've heard such challenges before. In fact, I have been and continue to be one of the people making those challenges, including in this thread.

That's why your hostility confuses me.

Maybe I'll be less confused if you answer some of my questions that I asked you above:

What are you referring to when you talk about my "thievery?"
What do you think my "real motives" are?
Who is it you have decided I must be and what agenda do you think I'm pushing?
posted by The World Famous at 4:00 PM on September 2, 2011


Can I patent an algorithm that copyrights every arrangement of a song, ever?

Is this post prior art?
posted by ryoshu at 5:54 PM on September 2, 2011


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