Crane also stresses that not all sampling is created equal. “When someone takes the hook of a pop song, samples that, [but] doesn’t do anything to it, that feels cheap to me,” he says. “I would usually only sample something if I felt like I had a unique change to make to it. I’d remix it in a way that was creative or different from the original song, ideally so people wouldn’t recognize the original sample.”
Monson agrees with Crane that reconceptualization lends greater legitimacy to sampling. She also asserts that to view all sampling as thievery is an oversimplification that downplays the creativity implicit in recombination. In her mind, what is needed are changes in the way sampling is regulated. “The way copyright laws are set up has never been designed to reward the kind of creativity that recombining things is about,” Monson says. “The copyright always went to the composer of the song. So no matter how radically transformed Miles Davis’s or John Coltrane’s version [of a song] was, if they weren’t the composer of the song on record, then royalties wouldn’t go to them.”
Monson also criticizes what she sees as a disproportionate response of the legal system towards African-American music. “The hip-hop artists have been held more to the letter of the sampling laws than earlier in the century when non-African-American musicians borrowed African-American music and were able to make a work that earned more money than the original,” she says.
Though she lauds the creativity that sampling can beget, Monson is not opposed to legal consequences for sampling done without permission, making the point that artists, especially aging ones who live on royalties from their earlier works, need to be paid. She notes, however, that it is difficult to draw the line between what should require payment and what should not. “If you can identify [the sample] as a song that came from Marvin Gaye, probably something should be paid,” she says. “But sometimes you can’t tell where the sample came from. This creates an interpretive conundrum.”
Monson says she thinks it might be a good idea to form a kind of board of creative artists that would be consulted in cases of sampling-based litigation and help decide what constitutes copyright infringement. In her opinion, the current system of determining intellectual property is an inapplicable relic of the past. “The copyright system itself is based on the presumption of a classical music composition, where the work was written down by a single author. The kind of creativity we see in jazz [and hip-hop] is more collaborative,” Monson says. “The copyright system was not set up to reward that kind of improvisational creativity.”
Brian K. Price, a professor at Harvard Law School, takes a view that is less generous towards the sampler, citing ignorance on the part of artists about the legality of sampling. “I think artists are unaware of what constitutes infringement and what doesn’t. There are a lot of myths about the ability to freely use sampled works,” he says. “Sampling is taking an existing work and making it your own, and under the law that’s considered infringement [when done without permission].”
Price believes that the issue is rooted in a limited understanding of fair use. In the American legal system, fair use is an exception to copyright laws that permits unauthorized usage of copyrighted material for a limited range of purpose, including commentary, criticism, and parody. Price says that as the law stands, sampling does not fit under the fair use umbrella. “Taking an existing work, sampling it, and putting it into another commercial work isn’t one of the things [the law] captures,” Price says. “If something becomes very commonplace, then people mistakenly think that it’s normal…and legally acceptable.”
AN INDUSTRY MAKEOVER
So how can we ensure that artists are legally protected without stamping out creativity? Price suggests combining education about copyright laws with a willingness to reexamine them. “There needs to be a greater understanding of what the law allows,” he says. “There ought to be an easier way for artists who want to sample to connect with the companies who own the works that they want to sample. The price involved to sample something shouldn’t be as high as it is. But ultimately that’s a market determination.”
The last statement is something that Justin T. Ko, a second-year student at Harvard Law School, can agree with. A co-director of the Recording Artists Project, a student organization that offers free legal consultation to aspiring artists, he knows firsthand how limiting high costs can be for up-and-coming artists who want to sample. He is also aware of how unprepared to face the monetary decision many artists are. “When people hear Jay-Z and Kanye West incorporate Otis Redding into their music, it isn’t immediately clear that they paid for it…. [Artists] hear it and think, ‘That sounds great, I want to sample Otis Redding too!’ But they don’t realize the high cost involved.”
Ko points to comments made by Robert “RZA” Diggs of the Wu-Tang Clan to illuminate sampling’s astronomical costs. In an interview with SPIN Magazine, Diggs stated, “In the old days, samples were $2,500 or $1,500…. I paid $2,000 for a Gladys Knight sample for ‘Can It Be All So Simple.’ … Something like that nowadays would cost $10,000.”
Such high costs can be a limiting factor when it comes to the decision to sample. “There’s no regulatory system for how much artists can charge other artists for sampling their work,” Ko says. “In this day and age people aren’t making that much from album sales anyways. So who’s to say that [paying for a sample] will be a wise investment?”
Ko also believes the desire to sample is often misconstrued by the legal system. “The purpose of sampling James Brown isn’t just because the melody is great or it sounds good…. It’s because it’s James Brown,” Ko says. By sampling tracks they admire, artists pay homage to musicians that influenced their lives and sounds. To those who say artists should just recreate tracks legally with their own instruments, Ko says that their claims challenge the authenticity of the art. “[The song] is tied to a particular recording and a particular sound…. If you don’t sample James Brown and get some James Brown sound-alike, people can tell, and it isn’t the same.”
Ko agrees with proponents of sampling who claim that current copyright laws contradict their own purpose by inhibiting the creation of sample-based music. He differentiates between patent law, which does not apply to music, and copyright law, which does—while a patent is restrictive and is meant to give the inventor of a new technology a temporary monopoly on its creation, copyright laws are meant to benefit the public good. “The purpose of the copyright act is to promote the useful arts. [It holds that] the public interest is being served by artists creating great songs, great music, etc.,” Ko says.
PLAYING CATCH-UP
This understanding of copyright laws raises the essential question of how to promote the creation of valuable music through sampling while still ensuring that the intellectual property rights of sampled musicians are respected. It is a question that all lovers of music have an imperative to answer—regardless of its legality, the practice has made an undeniable contribution to the cultural fabric of the digital age, and neglecting to ensure its continued viability would be a disservice to both musicians and music lovers. The question is not whether sampling should continue, but rather, how to regulate the practice so that a legal gray area does not discourage the creative impulse. What form this change should take remains to be seen, but Ko agrees that the view that a shakeup of the current system is definitely necessary. “Artists and musicians shouldn’t have to focus on [legal] things. They should be focusing on their craft and always making the best music that they can,” he says. Sampling can be made to benefit all parties involved if the legal system is willing to reexamine itself. And the consensus seems to be that it should—the creativity and artistry that sampling spawns are worth it. So much of the diversity of the current musical landscape is due to sampling. Failing to ensure that it can continue may be akin to hampering the evolution of music itself.
—Staff writer Caleb M. Lewis can be reached at clewis01@college.harvard.edu.