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
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”?
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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.
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Grand Upright Music, Ltd v. Warner Bros. Records Inc., 780 F. Supp. 182 (S.D.N.Y. 1991)
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.
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?