Sample replays and their implications for producers and listeners
Justin Morey, Leeds Beckett University
ABSTRACT: There is evidence that the cost of clearing the recording copyright of a sample (the master clearance) has risen significantly in the last 20 years (see, for example: McLeod and Di Cola, 2013; Morey, 2014), with one result being the increasing use of sample replay services, which create a sound-alike of a sample at a fraction of the price of clearing the original. A further recent development is that producers (hereafter sampling composers) whose records originally used cleared samples have found that on expiry of the term of clearance, record label demands to authorize an extension have become financially prohibitive, leading to a choice either to create a version with the sample replaced by a replay, or have the record disappear completely from streaming services and broadcast media.
Using qualitative data from practitioners involved in sampling, sample replay services, and sample clearance, this paper explores the implications of developments in the industrial management of copyright on the creative practice of sampling composers and the canon of sample-based music available to listeners, and considers issues of the aura and authenticity of an original recording in terms of sampling and sample replays.
Keywords: digital sampling; copyright; creative practice
Franco Fabbri, University of Milan and Conservatorio ‘A.Boito’, Parma
Our opening keynote for the conference is the much-loved Franco Fabbri, a much-celebrated musician, educator and musicologist. I was particularly interested to hear this one, because Franco is talking about Forensic Musicology, and with a particular focus on Italian case law.
Here’s my live-blog of his hour-long talk, with YouTube examples where I could find them:
I’m in Seattle at the New Music Ecosystem conference, organised by the University of Washington Law School. It’s a gathering of music and law professionals, discussing the future of creators’ compensation, tech/music innovation, and copyright reform. [Grammar folks – I’ve now been in the USA for long enough, and had Oxford commas inserted into my copy so many times, that I have decided to give in and just use them from hereon].
This week, Lana Del Rey stated that she is being sued for copying Radiohead’s 1992 song Creep in her 2017 release, Get Free.
It’s true about the lawsuit. Although I know my song wasn’t inspired by Creep, Radiohead feel it was and want 100% of the publishing – I offered up to 40 over the last few months but they will only accept 100. Their lawyers have been relentless, so we will deal with it in court.
Both songs use the same chord sequence: | I | I | | III | III | | IV | IV | iv | iv |
Creep is in G major, so | G | G | B | B | C | C | Cm | Cm |
Get Free is in Bb major, so | Bb | Bb | D | D | Eb | Eb | Ebm | Ebm |
They are both mid-tempo (Creep is around 92 BPM; Get Free is around 102BPM).
They both have a similar rhythmic feel – straight 8s 4/4 time, in 8-bar sections (this is a similarity but an unremarkable one, given that it applies to a huge number of songs).
…and some history…
Creep is part-borrowed from Albert Hammond’s The Air That I Breathe (1972) – later a hit for The Hollies. According to The Guardian, Radiohead gave Hammond and his co-writer Mike Hazlewood a credit in the Pablo Honey album liner notes.
Here are the three songs in reverse order of release:
Paying the Piper: Constructing Narrative in the Contemporary Music Industries
ABSTRACT: In the 21st century the digitalisation of every facet of the production, dissemination and consumption of popular music presents an immensely complex set of challenges and opportunities to creators, investors and consumers. Encompassing a diverse range of disciplinary and methodological approaches, this panel identifies and engages with a number of key narratives relating to ways in which popular music creators are rewarded for their musical labour in the digital age and the wider ramifications for consumers and investors. Each paper interrogates and critiques distinct aspects of these unifying central themes. The first paper scrutinises the issue of fair remuneration of musical performers in the digital sphere and the efficacy of stakeholder responses and interventions. The next paper presents an empirical challenge to the dominant binary narratives found in many academic critiques of copyright as a means of rewarding popular music creators. The third paper argues that the erosion of collective licensing in the digital age has potentially negative ramifications for the availability and affordability of music to the consumer. The final paper explores the contentious issue of ‘value’ in the world of music streaming and argues that a new paradigm for ascribing and gauging value is required.
Kenny’s core research question: How do primary creators experience copyright in the contemporary music industry?
Research methods: narrative-based interviews, plus hard data via surveys, plus industry data.
‘Where is the Public Interest in Collective Licensing?’
ABSTRACT: In 1841, Lord Macaulay argued that copyright ‘produces all the effects which … mankind attributes to monopoly … to make articles scarce, to make them dear, and to make them bad’. Popular music has witnessed the reverse. The music industries’ most obvious monopolies are the collection societies. Collective licensing makes music abundant (blanket licence schemes, in particular, provide unfettered access to music) and it prices it democratically (all music costs the same). Collective licensing has shaped our musical environments. It is the reason why, in theory, any song can be broadcast or played in public premises. It is being weakened. Artists, labels and publishers are withdrawing from licensing schemes for streaming. Entrepreneurs are proposing blockchain systems that will do away with the need for collection societies. It is licensors and licensees who have dominated narratives about collective licensing. Questions of ‘public’ interest have been focused on how much businesses should pay and how much creators should receive. It is the argument of this paper that music consumers need to enter these debates. If collective licensing is eroded then music will become more expensive and scarce.
Richard’s favourite form of music, he says, is blanket licensing! He intends to advocate, today, for the needs of the public. Are [copyright] monopolies always inherently ‘evil’?
Here is the abstract, with references, for the academic paper I presented at the IASPM 2017 conference in Kassel, Germany. At the moment it’s just abstract, slides and references. If it ever turns into a full paper I’ll upload it to this website with the rest.
Abstract: The songwriter Stephen Schwartz once described his ‘Unlimited Theme’ (from ‘Wicked’) as a musical joke, using as it does the first seven pitches from ‘Over The Rainbow’.Schwartz believed that by limiting the number of copied pitches, he was evading an accusation of plagiarism. Schwartz’s belief in a legally defined plagiarism threshold represents a common misconception among musicians; there is a similarly widespread myth that copyright law permits a specific number of seconds of audio sampling (this has explicitly been contradicted in US case law). But borrowing and adaptation is a common form of creativity, and there is a real risk that if creators misidentify the line between influence and plagiarism, they might either inhibit their own creative freedoms, or inadvertently infringe copyright. This paper discusses the mythical plagiarism threshold, using examples from copyright case law, interviews with creators, and comparative analysis of musically similar works to explore the question “how much is too much”?
Bridgeport Music, Inc. v. Dimension Films, 383 F.3d 390 (6th Cir. 2004)’. Harvard Law Review 118 (4): 1355–62. doi:10.2307/4093384.
Cronin, Charles Patrick Desmond. 2017. ‘Seeing Is Believing: The Ongoing Significance of Symbolic Representations of Musical Works in Copyright Infringement Disputes’. Social Science Research Network. https://papers.ssrn.com/abstract=2967590.
Demers, Joanna. 2006. Steal This Music – How Intellectual Property Law Affects Musical Creativity. Athens : University of Georgia Press,.
Grand Upright Music, Ltd v. Warner Bros. Records Inc., 780 F. Supp. 182 (S.D.N.Y. 1991)
Friends, musicians and soundmen (and women) – lend me your ears. Here are some Wayfair TV commercials in a playlist – let me know (Twitter @joebennettmusic) what songs you think they’re using as a template for the music. Disclosure – this is for academic research, not copyright/client work.
[Health warning – these ads have a level of cheesy catchiness that may be difficult to cure once acquired.]
I Hate These Blurred Lines: Wrongful Appropriation and Copyrightability in Music Copyright
Academic/copyright post: here’s an abstract (pdf) of a paper that I’ll be presenting with Prof Wendy Gordon next week at Boston University Law School.
This is based in part on an earlier paper that we presented at the Art of Record Production Conference in Aalborg, Denmark in December 2016, a draft of which is embedded below with voiceover and music examples. As this is an academic paper about music copyright, it contains musical excerpts from the original audio recording. My first attempt to embed the video resulted in an automatic takedown (academic fair use YouTube dispute is in progress), so I’m trying again with a Screencast embed. Because the video represents commentary and (not for profit) academic research, I’m continuing to claim fair use. Let’s see how long the audio survives!
Abstract: We have two concerns with music infringement trials: The first concern is the process by which juries decide questions of whether a defendant copied too much from a plaintiff’s work. (This is the inquiry sometimes known as “wrongful appropriation” or “substantial similarity”.) This paper discusses the challenges of methodology in forensic musicology, and the musical and psychological difficulties of applying the ‘substantial similarity’ test fairly and objectively. (Bonadio, 2016; Gordon, 2015). We present an analysis of three disputes, with comparative audio examples – The Isley Brothers/Michael Bolton (2001); Robin Thicke & Pharrell Williams/Marvin Gaye (2015); and Randy California/Led Zeppelin (2016).
Our second concern addresses copyright classifications, in particular, the contested relationship between the creative decisions that give rise to copyrights in “musical works” (compositions) and the creative decisions that give rise to “sound recordings” (sounds as rendered). We suggest that overlap between the two is common and should be better recognized. To illustrate the potential compositional contributions of performers and sound engineers, we utilize audio examples from Newton v. Diamond and other disputes.
Peter begins with some caveats; he comments that the report deals particularly with the recording industry (and does not cover other music industries – e.g. live music and music education). Second, he notes the support from Kobalt Music, whom he notes are a very particular type of publisher, with a particular interest in digital and many very large-scale song catalogues in their portfolios.
As mentioned in a previous post, the question of whether Led Zeppelin’s Stairway To Heaven (1971) copies a part of Spirit’s Taurus (1968) may soon be settled.
Representatives of the late Randy Wolfe (aka Randy California) are claiming that the four-bar introduction section of Stairway To Heaven copies a substantial part of his 1968 instrumental composition Taurus.
Judge Gary Klausner stated that a jury should be used, because the matter in question is necessarily subjective: “while it is true that a descending chromatic four-chord progression is a common convention that abounds in the music industry, the similarities here transcend this core structure […] What remains is a subjective assessment of the ‘concept and feel’ of two works”.
So let’s compare the works – how similar are they?
In the next couple of days I’ll post proper transcriptions of the two with audio and some discussion points. For now, here’s an interview I did yesterday with BBC Radio 5 live, discussing the songs with presenters Sarah Brett and Ore Oduba.
I was interviewed this week by the UK’s Daily Telegraph newspaper about the alleged similarities between Sam Smith’s new James Bond movie theme song ‘Writing’s On The Wall’ and Michael Jackson’s Earth Song. This blog post is a more detailed version of that analysis.
[If you’re wondering why The Carpenters appear in the above playlist, all will be explained shortly].
Lots of people around the web have been pointing out that the end of WOTW’s verse makes them want to go straight into the chorus of MJ’s ‘Earth Song’, and on listening to the tracks it’s easy to hear what they mean. It’s interesting, though, that although the ‘feeling’ of the end of WOTW’s verse is reminiscent of Earth Song for some listeners, there are only actually three notes that have the exact same pitch – and these notes are not placed at the same point in the bar.
The songs are in different keys – Earth Song is in Ab minor and WOTW is in F minor. When comparing melodies, it’s helpful to ‘normalise’ this difference by notating both songs in the same key, so that any similarities or differences are more visually apparent. Here’s the comparative/normalised transcription.
So, if there are no notes that are exactly the same (in terms of pitch, rhythmic placement and harmonic context), why are so many listeners crying foul?
There are two areas of apparent similarity. The phrases in the penultimate bar of each song’s verse, highlighted in the red rectangle above, both have 8 syllables and have similar rhythmic scansion (and there’s no more use in runnin’ / did you ever stop to notice). But the section that everyone is talking about is the rising phrase ending on a B flat note (this is something I gotta face / this crying Earth this weeping shore?). These respective phrases, although they have only three pitches in common (with different rhythmic placement), give an impression of similarity because of the way the phrase ascends to the strong Bb note, with the same underlying dominant chord (in the normalised key of Abm, Eb major).
The songs also feature what we might call ‘surface similarities’ – that is, aspects of the arrangement or performance that appear in many other songs, but are combined in each work in the same way. They are both sung in the higher register of the male voice; they are performed at a similar tempo (Earth Song is around 6BPM and Writing’s On The Wall is around 65BPM). They are also both have a sweeping, epic quality and a lyric where the protagonist expresses some form of regret. There are of course many songs that feature these elements, but in combination they contribute to a subjective impression of similarity.
There is one other fragment of similarity, and interestingly listeners don’t seem to have picked this up to the same extent, despite the notes lining up exactly. WOTW’s chorus drops down dynamically at [01:28] and at this point the phrase ‘how do I breathe’ has the equivalent notes, syllable count and rhythmic scansion as bar 2 of Earth Song’s verse ‘what about rain’ [0:51 in the full length version]. The rhythms for this four-note section are identical, with identical pitches of Eb, Db, Cb and Db. The underlying chord on beat 3 is different, but the melodic similarity, for a brief moment, may be apparent to the listener. Here’s the relevant section, key-normalised as before.
But methodology is all in comparative music analysis, and it can be abused. If you look hard enough, and work with small enough fragments, you can find similarity everywhere. In the Spotify playlist above, listen to the strings intro in WOTW followed by the first verse of Superstar by the Carpenters. Three notes of G, F and C below, in an F minor tonality. Coincidence? Er, yes.
Music analysis can only highlight the similarities and differences; it’s impossible to see inside the mind of a songwriter, and any accusation of melodic plagiarism usually has to demonstrate quite a high level of similarity between the works. There are melody similarities between WoTW and ES but there are also many differences; these melodic fragments and production/arrangement choices will certainly have appeared in other songs. Which leads us to the really interesting question – if no musical elements are identical, but the combinations of elements are similar enough to invoke allusion to an earlier work, might we describe the act of combining those elements as creative? Can composing consist simply of bringing together pre-existing ideas? Might we characterise all creativity in this way? (Arthur Koestler thought so).
Were Sam Smith and Jimmy Napes influenced by Michael Jackson? Quite probably – many great pop songwriters are. Would they have been familiar with Earth Song? Almost certainly – it was a worldwide hit and remains a classic. But is this an example of deliberate plagiarism? I’m not so sure. It depends on what you mean by ‘original’.
And what you mean by ‘composing’.
And what you mean by ‘copying’.
Copyright note for transcription excerpts: I claim fair dealing exceptions for the purposes of research, criticism, review and news reporting.
This is a blog post about 5 bars of music. As reported in Rolling Stone and The Sun recently, the melodic similarity between Sam Smith’s 2014 song Stay With Me and Tom Petty’s I Won’t Back Down (1989) resulted in an amicable settlement between the writers and publishers sometime in 2014, resulting in Petty and Jeff Lynne, who originally wrote I Won’t Back Down, receiving a 12.5% share of the royalties. The PRS database in the UK confirms the share (members only access).
And subjectively, the songs are pretty similar, as bloggers had been pointing out since mid-2014.
But everyone was relaxed about the settlement, and Petty issued a statement to this effect:
About the Sam Smith thing. Let me say I have never had any hard feelings toward Sam. All my years of songwriting have shown me these things can happen. Most times you catch it before it gets out the studio door but in this case it got by. Sam’s people were very understanding of our predicament and we easily came to an agreement. The word lawsuit was never even said and was never my intention. And no more was to be said about it. How it got out to the press is beyond Sam or myself. Sam did the right thing and I have thought no more about this. A musical accident no more no less. In these times we live in this is hardly news. I wish Sam all the best for his ongoing career. Peace and love to all. (Petty, 2015)
Here’s the thing. Petty used the term ‘accident’, which one might interpret as meaning the copying of the melody was inadvertent. Sam Smith’s representatives claimed that the similarity was the result of a ‘coincidence’:
Authenticity and the role of live musicians in hip hop production
ABSTRACT: Despite hip hop music’s origins as a live performance-based art form, utilising turntables and sound systems, the incorporation of digital sampling technologies gave rise to a sample-based aesthetic within hip hop production which traditionally rejected the use of live musicians. In his ethnographical study of hip hop production, Schloss goes as far as stating that as a hip hop producer ‘…it is the lack of samples – the use of live instrumentation – that must be justified’ (Schloss, 2004, p.67).
This sample-based aesthetic is strongly linked to the notion of authenticity within hip hop production (Schloss, 2004; Williams, 2010), however use of live musicians has been evident throughout the history of hip hop; from live hip hop band The Roots , the use of session musicians to re-play samples in Dr. Dre’s Chronic 2001 (1999) to the self-sampling approach of Portishead’s self titled album (1997). More recently in the UK, the formation of bands such as Introducing Live whose debut project in 2009 was to recreate note for note the entirety of DJ Shadow’s exclusively sample-based album Endtroducing (1996) with a 10-piece live band and the Abstract Hip Hop Orchestra who, inspired by Miguel Atwood-Ferguson orchestral tribute to J-Dilla (2010), perform live versions of classic hip hop tracks with a 16 piece ensemble, demonstrate the integral role that live musicians can occupy within hip hop performances that were once the reserve of the DJ and MC.
I was interviewed recently for the Danish broadsheet newspaper Weekendavisen, which ran a feature on musical plagiarism, referencing Robin Thicke’s Blurred Lines. The text below is a (partly Google-powered) translation from Danish. For any native Danish speakers reading this, the original will probably make more sense – download here: Weekendavisen article 24 October 2014.
Slørede grænser (Blurred Boundaries)
[translated from Danish. Written by Anders Boas. Reproduced in translation by kind permission of Weekendavisen.]
The same way that a house is made of bricks, wood and nails, a piece of music is build of pitches, harmonies and rhythms. But the same way that very few people see each brick in a house, it is a minority that hear the individual notes when listening to the latest hit.
At the root of copyright’s legislative reach, and practical effects, is the matter of ‘copying’ itself – often referring to what may legitimately (morally or legally) be done with an apparently completed piece. Yet making music, and acquiring the skills to do so, is shot through with acts of copying, from straightforwardly learning a basic riff to the network of socially inflected influences in composition and multifarious technological means of manipulation, particularly in popular music, where criteria for entry to the field are relatively lightly codified. Likewise, as well disrupting longstanding distribution methods, digital technology has blurred the relationship between production, consumption and the ‘finished product’.
Musicians are central to an industry rhetoric in support of copyright protection that often relies upon conceptions of discrete works established in a pre-digital era. This paper explores popular musical practices themselves in the face of a rapidly evolving palette of creative possibilities. How do musicians regard digital techniques—like sampling—and their outputs against other long established forms of copying? At what point do they consider the implications of copyright for their practice?
This paper scrutinizes the role of copyright in the commercial decision-making of Popular Music creators. UK copyright law confers an exclusive ‘basket of rights’ on musical creators. Theoretically at least, this privileges creators as the key decision makers in copyright transactions. However, scholars have questioned whether most creators wield meaningful influence in these negotiations. Instead, they have argued that creators find themselves in extremely weak bargaining positions largely due to the ‘take it or leave it’ terms offered by commercial investors.
Perhaps as a consequence of these critiques, the nuance in the ‘lived experience’ of creators’ commercial decisions has been largely overlooked in academic research. Drawing on data gathered from in-depth interviews with contemporary creators and investors, this paper probes the complex interplay between these key stakeholders.