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)