The growing popularity of musical crazy-quilts could spur reform in sampling law.
Some of the most interesting music around is made with the help of digital sampling. The fevered imaginations of DJs worldwide and the availability of cheap, easy-to-use sound-editing software has resulted in a genre with the deceptively bland name bootlegs. In club culture, a bootleg is not an unauthorized recording, it’s a new recording made from two existing tracks. Usually, it’s an a capella vocal track (a longtime staple of R&B and hip-hop 12-inch singles) and, well, anything that can be made to match the tempo and pitch of the vocal track-in other words, most anything at all. Thus, the bootleg craze has resulted in some extremely strange bedfellows: Nirvana combined with Destiny’s Child, the Stooges with Salt-n-Pepa, Public Enemy with Herb Alpert and the Tijuana Brass. The idea is to make the two disparate sound sources sound like they were meant for each other, and the best bootlegs do just that.
The reigning bootleg kings are Soulwax, a shadowy Belgian duo whose CD “2 Many DJs” is a dizzying hour’s ride through its creators’ record collections. Sounds from dozens of sources are woven into a relentless whole in which Destiny’s Child’s “Independent Woman” sounds as if it were meant to be backed by a 1978 song by 10cc, and the resulting track segues seamlessly into a technofied Dolly Parton tune.
The Soulwax CD is an exception, though, in that the DJs actually licensed every track they used, presumably at great expense. (Their Web site goes into plenty of detail about this often frustrating process). Most other bootlegging efforts found on the Net don’t bother with licensing, which makes them illegal and therefore unlikely to be heard anywhere but on the Web.
The courts decided 10 years ago that a record can contains a digital sample from an existing recording only with permission from, and compensation to, the owner of the sampled recording’s mechanical copyright (the owner of the recording, as opposed to the song). This has resulted in some outrageous scenarios in which credit for a song’s creative spark goes entirely to the wrong people (see the notorious case of The Verve’s “Bitter Sweet Symphony”).
Taking a variety of found sounds and making something new and interesting out of them is an art in itself, but it’s one that’s discouraged by current laws. Just to name two of the most revered hip-hop albums, neither De La Soul’s “3 Feet High and Rising” or the Beastie Boys’ “Paul’s Boutique” could have been made under the current laws (both were made in 1989, before sampling laws existed).
Using a sample without permission is asking for a world of trouble. Not only does it violate copyright laws, but it could also violate “right of publicity” laws that exist in many states. In addition, there is no caselaw that protects sampling as fair use, even though, for instance, writers have long been free to use excerpts by others, as long as the author is cited. What complicates matters further is that the cost of licensing tracks varies widely. In granting a license, a record company may demand a flat fee of $100 and up, usually much more. It may also seek a royalty (from a penny per record sold on up) as well as a cash advance.
The laws as they exist are unfair to artists who work with sounds the way an artist might work with elements of a collage. A DJ doesn’t use a sample because he thinks it will make him rich, he uses it because it sounds good in the musical stew he’s making. Musicians who perform live pay a flat fee every year to BMI and ASCAP to cover the eventuality that they will perform other people’s music. Why can’t DJs pay a similar fee? Reports of which records are sampled most frequently could dictate how the pot is divided. Alternatively, samples could be used with the proviso that a certain percentage of the revenue generated by the record on which they appear goes to the artist whose work has been borrowed.
Fair-use doctrines that are agreeable to all parties are already in place in other media. One needs to be adopted to cover sampling.