The day the music died
September 9, 2004 9:26 PM   Subscribe

All samples must now be licenced according to the 6th Circuit Court of Appeals in Cincinnati, including tiny samples that have been modified to the point of being unrecognisable. "We do not see this as stifling creativity in any significant way." via /dev/null
posted by Jimbob (40 comments total)
also, here's what lessig had to say
posted by bob sarabia at 9:30 PM on September 9, 2004

"The appeals court opposed that decision, explaining that an artist who acknowledges that they made use of another artist's work may be liable, and sent the case back to the lower court."

So, if you shut up, nobody's none the wiser. Besides that if the sample is unrecognisable...well, then you have nothing to worry about anyway.
posted by angry modem at 9:35 PM on September 9, 2004

Bleh. Let them try to enforce it.

Seriously. There's a huge difference between the commercial hip hop type stuff that people like, say, P-diddy, put out, and the odd, glitchy type of IDM that you might hear on, say, EM411. Huge difference.

Sometimes, a source is just a source. Not a reference. I might take a sample of sound from a record made by a junior high school band in 1967, and then compress the sound until it's only a blip. I'm not really 'sampling' in any recognizable sense then. And I bet no one would be able to recognize where the blip came from.

Oh, yeah, they're discussing just this issue over at EM411.
posted by geekhorde at 9:41 PM on September 9, 2004

For your listening pleasure.
posted by dobbs at 9:54 PM on September 9, 2004

NICE, dobbs, thanks for the link.
posted by tomplus2 at 10:08 PM on September 9, 2004

Dobbs wins this thread. Thanks for the link!
posted by keswick at 10:14 PM on September 9, 2004

It is pretty unenforceable, geekhorde, but consider this: what if they try to enforce it by making all musicians who release music keep records of how they construct every song? What if you are forced to justify yourself if you can't "explain" the origin of various sounds on your recording? At 2:53 a blip is heard that you haven't reported in your documents - could you confirm or deny that this is a sample of a 1967 high school band? I wouldn't put it past these pricks.

What if I sample a single beat from a song? What if the beat I sample is just the kick-drum sound from a popular drum machine? Do I owe royalties to the artist who used the drum machine, or to the manufacturer of the drum machine?
posted by Jimbob at 10:35 PM on September 9, 2004

(Indeed, do I owe royalties to every band who ever used that drum beat in a song?)
posted by Jimbob at 10:38 PM on September 9, 2004

Folks, PLEASE donate to that project if you download the songs. I avoided FPPing the link as I was worried about their server bill. They have some excellent video there as well, including Todd Haynes' Karen Carpenter Story. One way to send them cash is to subscribe to the PDF version of their terrific magazine, Stay Free!. The publication is superb, and I've referred to it more than once as the thinking person's Adbusters.
posted by dobbs at 11:07 PM on September 9, 2004

And wtf is with that Billboard link. Makes it sound like only hip hop artists are affected. Is that mag that out of touch?
posted by dobbs at 11:22 PM on September 9, 2004

Well, the short answer, for me at least, is if you're going to sample, sample smart. Use the extremely odd and rare records that NO ONE will ever know that you sampled. Or go find some high school band nerds and get them to play a few notes or beats, and record them. Then take your samples and slice and dice and manipulate until it's unrecognizable.

Or play your own stuff and sample that.

For a sound to be recognized as a sample, it has to be recognized in the first place. If it's unrecognizable, then no one will know.

This is all academic. Of course.
posted by geekhorde at 11:57 PM on September 9, 2004

Maybe a collaborative project could be set up, that re-creates every great sample, and anythihing and everything else - same instruments, exact same sound, etc. - and releases all the replica 'samples' into the public domain, for anyone and everyone to use.

"No your honour, I took the drum loop and three-chord bass-line with the distinctive metalic timbre that is a re-creation of the samples from artist X & Y's songs, not the actual samples themselves."

Reform Copyright Law.
posted by Blue Stone at 3:08 AM on September 10, 2004

This decision is an enormous gift to the major label oligopoly. They can afford license fees because their model is based on selling huge quantities of hit songs. They can pay for legal staff to check clearances.

Independent labels, as well as musicians who just want to get their music heard through the Internet with no profit, won't be able to afford sampling anymore. A single mistake could put an independent label out of business.

If this ruling stands, I expect it to be enforced. It will be worth the cost for the major labels to hire armies of lawyers to sue their competition out of existence.
posted by fuzz at 3:22 AM on September 10, 2004

Yes, and that will only cause the music wars to further heat up and also deepen the contempt many listeners now feel for the music industry.
posted by troutfishing at 4:18 AM on September 10, 2004

It is a gift to the "major label oligopoly" because it creates a huge barrier of entry. It might be fine for Sony artists to go and pay for permission to use various samples - after all, half the tunes they sample might be from other Sony bands. But for garage artists, and minor-label artists, it's not that simple - how exactly do I go about asking Stevie Wonder if I can sample half a bar of a song? How much do you reckon his label is going to charge me? Probably more than I could expect to earn in a lifetime from making music.

This decision hit particularly hard for me - the other guys in my hip-hop project like sampling and arranging whole rhythm and melody lines. I've got nothing against this, but this was never the way I liked to do things - I enjoy sampling 1 second of strings from some track, running it through a granulizer and reverb and then making new melodies with it with my MIDI keyboard. I'm really just using the original sample as a source of vibrations to play with, messing it up as to be completely unrecognizable, and a new instrument in its own right. Suddenly, I'm not even allowed to do that (note that while I'm in Australia, we've just got a new free trade agreement with the US that aims to duplicate your copyright laws).

Imagine if this was imposed on the visual arts - collages are respected as a legitimate artistic form. Some works deliberately copy older works with minor modifications as an artistic statement. I guess the crunch is that there aren't multinational "Painting Companies" selling works in K Mart.

I think now it's just going to be a matter of musicians seeing how far they can push the limits - how recognisable can a sample be before someone notices? What if there's a spy in the studio?
posted by Jimbob at 4:51 AM on September 10, 2004

Who owns the copyright to the Amen break?

posted by Jairus at 6:03 AM on September 10, 2004

I actually happen to be one of those legal staff licensing copyright for a major label (BMG). I also happen to personally know the plaintiff in this case, and the decision was discussed yesterday in my weekly staff meeting.

As a songwriter, I say it's a good thing. Jimbob, you as a producer clearly see the value of my (p) or (c), otherwise you wouldn't be using it in your song. Why shouldn't I be rewarded for that?

From the label side, this BLOWS. More red tape, more upfront costs, longer sample meetings, more overhead, more staff etc. Labels carefully budget their releases, and these additional costs have to come from somewhere, which ( almost always ) means the artist/producer or the overall quality of the record.
posted by remlapm at 7:47 AM on September 10, 2004

Oh, fuck off, remlapm. We're all pushing our way ahead one way or another, as a race. I don't see any value in your (p) or (c), I see value in putting my artwork in the context of culture, which you, unfortunately, seem to have a hand in.

Fuck, I'm "sampling" words out of books right now by typing this message. From the publishing house side, this blows! More dollars spent oppressing the masses! Less quality entertainment reaching people.

Have fun at your sample meetings.
posted by jon_kill at 8:06 AM on September 10, 2004

Hmmm to clarify: I meant "race" as in "racing" not as in "black or white or Asian". Not very clear.
posted by jon_kill at 8:07 AM on September 10, 2004

For your listening pleasure.

Yes!, and ALSO (equally very entertaining)
posted by Peter H at 8:29 AM on September 10, 2004

I'm "sampling" words out of books right now by typing this message.

Shhh! Don't let the publishing greedmeisters hear you say that!!
posted by rushmc at 8:32 AM on September 10, 2004

Jon_Kill, do you sell your artwork or give it away for free for the benefit of culture?

Also, words are musical notes, of which there are a finite amount of combinations. If you were actually sampling another author, you would have probably come up with something better than your lame ass attempt at insulting my career choice.

Of course, that begs the question, without relying on the ingenuity of other (samples), could Jon_Kill actually give away his art for free?
posted by remlapm at 8:39 AM on September 10, 2004

This is probably very bad news for laptop musicians.

As a songwriter, I say it's a good thing. Jimbob, you as a producer clearly see the value of my (p) or (c), otherwise you wouldn't be using it in your song. Why shouldn't I be rewarded for that?

Because this ruling isn't about using hooks, as it is about sampling anything. The equiv. in visual art would be to require payment to someone else in order to put each piece in a collage.

If I use a kick drum from one of your songs, no one will know. It won't detract from the value of your copyrights, and finally, the songwriter rarely has much affect over the true tone (which is probablywhy anyone would want to sample less than three notes anyways) because it's the producer and engineer who do the work that determines how things really sound.

My guess is that in the long this will be a big win for plugin creators, and people who create royalty free sample libraries (not to mention the magazines that include copyright free samples with each issue).

Another analogy would be a writer including a quote from another author's work, it adds meaning to the new work, but it doesn't require any exchange of money.
posted by drezdn at 9:04 AM on September 10, 2004

It should be clear to anyone with a sense of 20th-century western culture that the meaning of our expressions (artistic, academic, popular, and so on) has become increasingly reliant on texts, images and sounds that refer to other sources. This is to say that because context increasingly makes meaning, inter-textual reference has greater value.

This will not change, even if it means the expansion of anonymous expression and "sneaker-net" distribution. Which is at hand and thriving, in case you hadn't noticed.

What this court ruling ignores is that music will continue to thrive, as it always has, on self-canibalization. This ruling serves to push it underground more and faster.

I'm all for those who make "totally original music," whatever that is. But when someone can take a bit of music or noise that I recognize from a specific time and place in my life and fuck it up really nice and dish it out with intelligence and soul, that MEANS something to me. I'm not in favor of making that expressive ability available only to MEN-2-BOYZ.
posted by squirrel at 9:08 AM on September 10, 2004

I hope this doesn't count as self-linking, but here goes...

Well, inspired by Blue Stone, I just registered in the hope of gathering / hosting / sharing / releasing (copy right free, of course) sounds or loops created by people that sound identical (or as realistically close to identical) to copyrighted loops as possible...

anybody want to contribute :^)
posted by e-smiley at 10:38 AM on September 10, 2004

Reform Copyright Law.

Flaunt Copyright Law. The motivation for pursuing this ruling is not to "protect artist's rights" but to raise the financial bar above the reach of small-time artists.

Imagine a world where this was enforced. Many popular samples are owned by large conglomerates, who also just so happen to finance the most popular artists who utilize samples.

To hell with all of them.
posted by sonofsamiam at 11:18 AM on September 10, 2004

as far as stifling creativity: can anyone fathom the sheer number of albums that probably would never have been made if this ruling had been in place for 10 years? 20 years? that's insane. how the fuck can this not be stifling creativity?

copyright law is eternally fucked and needs to be completely rewritten. or at the very least all the crap extensions to copyright law need to be 100% removed. as far as i care, anything 10 years old ought to be fair game for sampling and anything 20 years old ought to be fair game for free redistribution.
posted by caution live frogs at 11:42 AM on September 10, 2004

Maybe the monstrous copyright system we have is simply a symptom of the corporatism that seeks to run everything.

I have this feeling that we're not going to change the former without changing the latter.

Good luck with that, e-smiley! :)
posted by Blue Stone at 1:02 PM on September 10, 2004

I like Blue Stone's, and now e-smiley's, idea of a free collection of sound-a-like clips, but isn't this also flouting IP laws?

According to dobbs' link, Wire attempted to sue Elastica for using a riff that sounded too similar to one they had originally recorded. Elastica didn't sample that sound, but they had recreated it in the same way proposed by Blue Stone.

While it would be protected from lawsuits from the recording's copyright holder, wouldn't the sound-a-like database still be open to lawsuits from the original composer and/or songwriter?
posted by Monk at 1:38 PM on September 10, 2004

I just wish everyone would stop sampling my posts and not pay me for them...
posted by ParisParamus at 1:44 PM on September 10, 2004

I think the next track I put together is going to consist entirely of uncleared samples from albums released by several different major labels.
posted by Foosnark at 1:45 PM on September 10, 2004

A great pre-sampling-is-infringement disc: De La Soul Is Dead
posted by ParisParamus at 1:57 PM on September 10, 2004

Oh the irony. FYI, it was the lawsuit resulting from an uncleared sample on '3 feet high and rising' (sprecifically the Turtles track that backs the scratching with the french lesson record), that caused the enormous delay releasing 'De la soul is dead', while they cleared every sample on it.
posted by inpHilltr8r at 2:59 PM on September 10, 2004

here is a hypothetical question (please bear with me for a second) - I have a parallel-processing sound computation engine ( - kyma capybara - amazing piece of soft/hardware btw) that has the ability to analyze a sound and then build a model of that sound using a few different processes (for instance, a RE model, where a model of the sound is built as a time-varying resonator driven by an excitation source or a bank of additive sine waves, where a sound is synthesized by summing harmonics to approximate the harmonic content of a given sound)....

anyhow, hypothetically speaking of course, let's say that I take a certain segment of sound and I use this hardware to analyze that segment of sound to build a model (lets go with an RE model in this case).

Now, let's say that I use said model to make a sound by exciting the resonator with the exciter - [this is similar to, for instance, how people speak - the vocal chords vibrate or buzz, and by moving our tongue and/or changing the shape or size of the cavity in which the buzz sound bounces around (by opening or closing our mouth, for instance)] - the RE model will happen to produce a sound strikingly like the original sample.

Like the legal case in question, lets say that I take two notes of said phrase, transpose them to make new intervals, and loop that to make a new section of a song.

The sounds are not in any way a sample or recording. They are unique to the model, which emits sounds that sound *like* but aren't the actual sample. Would this qualify as a soundalike recreation, and thus, not be subject to the ruling? What if any difference would this have from playing two notes on a piano that happen to be the same first two notes used in a sonata, a folk song, or an elton john tune? To copyright such a thing would seem to be tantamount to copyrighting a phoneme used in speech
posted by e-smiley at 4:03 PM on September 10, 2004

as far as stifling creativity: can anyone fathom the sheer number of albums that probably would never have been made if this ruling had been in place for 10 years? 20 years?

Well...for one thing we wouldn't have had to listen to Vanilla Ice screw up Queen. I'm just saying...

I just wish everyone would stop sampling my posts and not pay me for them... posted by ParisParamus

Hey! Hey! Ellipsis is mine! I have total prior art. I demand sampler! ;)
posted by dejah420 at 4:49 PM on September 10, 2004

Wow (about De La Soul). I heard the disc first is France--wonder if it was released abroad first?
posted by ParisParamus at 5:12 PM on September 10, 2004

They can afford license fees because their model is based on selling huge quantities of hit songs. They can pay for legal staff to check clearances.

More likely, the majors will simply blanket-license each other. BMG will just go, "look, Sony, we could send you royalties for all the samples from your artists that our artists use, and you could do the same, but we're both majors and we bet that'll generally average out, so let's just agree not to bother with that detail." Smaller labels could likewise issue blanket permission for sampling to each other. Heck, if you're in a band, and this is important to you, simply state up-front that anyone can sample your music (as some artists have already done). Congratulations, you've just increased the chances that your work will become a cultural touchstone from other artists' use of it as a jumping-off point.

The equiv. in visual art would be to require payment to someone else in order to put each piece in a collage.

Sort of like is actually required for collage. I recall reading in one of the Mac magazines a while back that a collage they'd put together turned out to be much more expensive than they intended, since they used 20 copies of an image and the photo agency they got it from wanted paid separately for all 20, whereas the artist had assumed that once the photo had been licensed for a particular piece it could be used as many times as desired in that piece. Unfortunately this didn't come out until after it went to press, and some wrangling was required to get the price down.
posted by kindall at 6:23 PM on September 10, 2004

I just wish everyone would stop sampling my posts and not pay me for them...

Now to slow the pitch down, and add some delay and reverb.

Kindall, I didn't know that. A more accurate analogy (for my concern- at least, single note samples to get a particular tone) would be if you brought up a painting in photo shop, and matched a particular color from the painting and then used that color in your own work.
posted by drezdn at 10:55 PM on September 10, 2004

e-smiley, I don't think we can necessarily look to the law for a sane, let alone wise decision. And since, as Monk points out, with the case of Elastica and Wire, the law might only serve as an "everybody-loses-crapshoot" threat (or something) regardless of real legally defined 'infringement' ... fuck knows. There's not a lot of sensible or rational thought going on in legal, corporate or political circles regarding copyright.

One thing is for sure - it's turning into an increasingly hostile environment in which to be creative.

The thing I'm wondering, though - and I'm not sure - is whether this ridiculous situation, as you and the Elastica case demonstrate, is not the inevitable consequence of having any sort of control over creative expression.

Is this the barbed tangle-weed, choking everything that's trying to grow, that was always going to grow from that seemingly reasonable seed of protecting works for limited times - the parent of which was, as I understand it, nothing more than a monopoly granted by the King in return for monies paid to him.

Maybe the noble intent of grafting on "to promote the progress of science and useful arts" just never took on such an evil organism?
posted by Blue Stone at 8:01 AM on September 11, 2004

can't any sound can be dsp-ed into any other sound given the right algorithm?

what we need is some software that will, given source and target, reverse engineer such algorithms so that if you're faced with a charge of sampling, you can just show how the offending sound is actually your own humming/guitar noodling/singing/drumming run through the such a program.
posted by juv3nal at 4:22 PM on September 12, 2004

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