How Copyright Law Makes Sample-Based Music Impossibly Expensive

How Copyright Law Makes Sample-Based Music Impossibly Expensive... If You Want To Do It Legally

from the too-bad dept

We've talked a few times recently about the wonders of sample-based music, along with the fact that the legal issues surrounding copyright on such works means that many works are simply not legal. Kembrew McLeod, who made the excellent film Copyright Criminals, about the legal issues around sampling in hiphop, is also out with a new book, called Creative License: The Law and Culture of Digital Sampling. He's done a fantastic interview over at The Atlantic, where he talks about the ridiculous hoops a musician needs to go through these days to make "legal" sample-based music:

To legally sample a recording you have to negotiate a separate sample clearance fee with two different rights-holders: whoever owns the sound recording (the actual sound that's been fixed to magnetic tape, CD, etc.) and the song publisher (who owns rights to the underlying melody and lyrics). This takes a lot of money and time. For well-known songs, licensing fees can be very expensive—and sometimes rights-holders won't agree to a sample clearance for any price.

But it gets way more complicated when you start sampling songs that contain samples, which is increasingly the case today. If you wanted to sample, say, "Fight the Power" by Public Enemy—well, that song contains 20 samples. You'd have to get permission from Def Jam, which owns the sound recording rights, and then Public Enemy's song publisher. Then you'd have to go to the other 20 song publishers and get permission to use the song—it creates kind of a domino effect. This licensing logjam is only going to get worse and worse and worse as people increasingly sample the recent past, since that recent past is already a collage. It just becomes impossible to do all these clearances.

And that's why the more creative sampled music today just isn't cleared at all, in the hopes that rightsholders won't sue. But that means that the "legal" sampled songs just aren't nearly as creative. There were some really creative albums early on, back before rightholders started demanding the moon to clear a sample, but those days are long gone. McLeod talks about how he and his co-author looked at the classic Beastie Boys album Paul's Boutique to calculate how much it would cost to clear today:

We figured out—song by song, sample by sample—how much it would cost to release each record. Sticking with the example of Paul's Boutique: there are about 2.5 million units sold of that record. Incidentally, a lot of the samples on Paul's Boutique actually were cleared—but they were cleared at a time, 1989, when the industry didn't really see the value of sampling yet, so the rates for copyright clearances were much lower. Today, the rates they'd have to pay would make it impossible. Based on the number and type of samples in that record, Peter figured out that Capitol Records would lose 20 million dollars on a record that sold 2.5 million units.

Of course, when we talk about sample-based music, we often have even the staunchest copyright defenders in our comments admit that the law isn't great on this subject, and they're more open to such "creative" infringement. However, what strikes me as more troubling is that many of the comments on the McLeod interview go the other way, saying that sampling is wrong. I get the feeling that, in many of these cases, people are getting their own feelings towards the music itself (i.e., they don't like sample based music, and somehow feel that it's not "real" music) confused with the actual creative issues at play here.