[FMC] Sampling and Shared Art

Rick Karr former NPR cultural correspondent/Technopop (moderator)
Whitney Broussard Partner, Selverne, Mandelbaum & Mintz
Jeff Chang Author, Can’t Stop Won’t Stop
Shannon Emamali Exec Director, DC Chapter, The Recording Academy
Bob Kohn Chairman and CEO, RoyaltyShare, Inc.
Hank Shocklee Music Industry Producer, Founder of Public Enemy, President of Shocklee Entertainment
[Unfortunately, Broussard isn’t here for the panel…]
Has the law changed the aesthetics of hip-hop?
Siva: It’s detracted from the sense of play in the art form. There was a beautiful libertarian moment in the late 70s where people could build something great out of what’s around them.
To get through the Reagan years with any sense of optimism, I depedended on Public Enemy to make life seem beatuiful– on George Clinton to make life seem hopeful.
We’re thinking about cultural policy here. We should be very careful when we ask the government to influence or regulate cultural expression. We don’t live in a society where people can do whatever they want with marketable cultural items.
We should ask is it contributing to the next generation of artists or locking in power for the already established?

Kohn:
Is a fan of sampling– in particular, parody, satire– to use a work to criticize the work itself (satire) or culture at large (parody.)
Feels somewhat responsible for the Bridgeport decision, which took 8 paragraphs from his book, where he was commenting on what the law is, not what the law should be. The law says that you’re allowed to do sound-alike recordings. When you’re sampling someone else’s working, you’re potentially infringing 2 separate works and the standard for the infringement is different.

Shocklee: Where is the menu items that a kid can go to and know if he’s taking this how much he’s going to have to pay for it? No one, not even in this room, knows the price of samples.
Emamali: Balance between sampler and samplee. There needs to be some type of system where, particularly aspiring artists, can go to to figure out how to sample legally, and then properly credit and compensate the samplee.
This has been a windfall for music publishers.
Chang: This has created two classes– the super-sampler class who can afford to pay whatever it takes to get the record out, like Diddy or NAS. Any hip-hop jam will drop a sample Apache, but only NAS can afford to do that for a record. Hip-hop is not asking for any kind of OK for doing that.
Folks are doing that now on the indie level– rappers and dance hall artists rhyming over The Cure.
The kids who were inspired by PE/Shocklee or by Pete Rock, they know that they’re going to have to turn in a list of all the samples that go into a song, and try to give the credit (and royalties) to the brokest of all the sampled artists.
RK: Is there a better way we can structure this legally?
Kohn: There’s an analog in the patent world, where developers have to work out licenses for patented processes. There’s similar negotiations when placing music into films. These rules are essentially the establishment of property interests.
If you are creating something new, transforming, and using the work, like a Bob Dylan song, for parody or satire purposes,
If you don’t know where you’re sampling from, then don’t do it. If you do, tell your lawyer and pay the fees to the rightsholder. If you’re out there just to disobey the rules, you’re going to get burned.
HS: We did go to the copyright owners, at least what we see on the record. We go out and make a deal with those people, then go out and get a call from someone else who is also a rightsholder.
Siva: The transaction costs are really high. There’s no central place to go to find out who owns the master or who owns the publishing? The Copyright Office doesn’t keep track of this.
HS: If I want to re-record a sample, the costs are really high, too. Taking a single Phil Collins snare hit for the sound, instead of going in, finding the same console, the same effects, the same mics. Should I have to go in and do all that, or can’t I just take that one sound and do something completely new and different with it? Or does Phil need to be compensated for that? [About 20% of audience applauds heartily.] Should I have to compensate the engineer who got the sound? Because how much of that is the actual performance and how much of that is the vibe of the recording?
Kohn: Plugs his new company, Artist Share that attempts to manage the royalty relationships.
SE: We need to establish a threshold for what needs to be compensated and figure out a way to create a central info registry for that.
Siva: The Copyright Office is studying orphan works…
Karr: Suggests an arbitration panel for sampling that decides what a fair price is for sampling.
HS: The record companies have an incredible database of sampling claims. Sampling is not just limited to hip-hop artists anymore. The kids doing it don’t understand how much it costs, especially when all the big pop hits on the radio are sample-based.
Peter Jenner: None of the sample money goes to the drummer or the guitar player who played the part that was sampled. The copyright law has gone completely up its own ass. Why does the composition copyright owner get to profit off of a few notes, but the musicians don’t?
Siva: There hasn’t been a good fair use case made in sampling law, with someone who took the subtleness and takes from the toe of the work, not the Vanilla Ice sample that goes to the heart of the work [The Nation.] The case law has not reflected the analysis.
Barbie Bayless: How do you come up with a rate sheet? How can all of us in the industry come up with a common rate?
HS: We don’t know what people are charging. How can we give away more than 100% of publishing?
Karr: You take the heart of the work (Siva: like the riff from “Purple Haze”), then you should have to pay for it.
We have a situation where the market dictates what happens. If a mid-level hop-hop artist takes a sample from a Harry Chapin record, the hip-hop sampler has much less bargaining power.
RK: Statutory license?
SE: How do you set the rate? For some songs, 5 seconds is the essence of that song, then the law should have to take into account the difference.
RK: HS, what if some White Supremacist band samples PE?
HS: If they pay us, it’s good. The sampling is about taking the sound. When you talk about paying that license, how little of a sample needs to be compensated?
SE: We’re focusing so much on the payment.
Siva: Copyright law should be concerned with the work yet to be created. It’s in the Constitution. Right now, this is a system with grand winners and grand losers. There are windfall profits and there are people who can’t market what they create out of fear. A statutory license lowers these barriers to entry. It makes it possible for the next Public Enemy to pay a reasonable fee. It eliminates the hold-out problem. It’s a market rigged by some agreement or state intervention that would work for more people in more situations.
Audience member who negotiated a lot of Polygram/James Brown sample licenses between 92 and 97: 50-50 split with the artist and the label. some of that actually did trickle down to the funky drummer. There are people who want to do well by the art form.
[FWIW, I think that sampling reform requires both the addition of a de minimis analysis to allow people to sample short (<2 seconds?) clips without permission and a complulsory license for samples that represent a larger, but still not central part of the work, and then a market-based system for sampling that goes to the heart of the work. More later.] Useful links:
Bridgeport Music, Inc. v. Dimension Films (6th Cir., Jun. 2005).
Newton v. Diamond (9th Cir., Nov. 2004).
Astride Howell, Sample This: “The controversy surrounding digital sampling and the legal rules
of thumb generated in response reveal that there is quite a bit of mis-
understanding among musicians about copyright law and samplingthe songwriter or, by assignment, a music publisher.”
Previously: Bridgeport, Audio Sampling and Transaction Costs