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.

Filed Under: culture, kembrew mcleod, samples

Fair Use And Films: Does Running Everything By The Lawyers Really Improve Your Film?

from the unless-it's-about-copyright-infringement... dept

After the panel discussion on ACTA, a special "Fair Use Film Screening" (again, as a part of World's Fair Use Day) was held in the same building, in the offices of the law firm Dewey & LeBoeuf, which was quite a lot of fun. It really wasn't so much a "film screening" as it was a panel discussion with a few short film clips shown. The panel consisted of Mark Hosler of the band Negativland as the moderator (who, of course, went through the fair use battles before many of the younger generation was even born, let alone had to consider this stuff), along with Brett Gaylor, discussing his film RIP: A Remix Manifesto and Kembrew McLeod, discussing his film Copyright Criminals.

One point that stood out from both McLeod and Gaylor was the difficulties and legal hurdles each had to go through to even complete these movies. Since they dealt with so many examples of mashups and samples, all of the legal questions that applied to the mashups and samples themselves in some ways applied to the movies as well. In both cases, they spent an awful lot of time with lawyers -- even when it came to artistic editing decisions, in order to do their best to keep the films "legal." Many in the audience were surprised when both said that, in some ways, the lawyers' demands actually helped them make better films -- but Nina Paley (who I finally met) chimed in from the audience to point out that it makes sense that copyright lawyers would help in making a better film about copyright law -- but that was probably one of a very small number of situations where movie makers would benefit from the editing suggestions of a bunch of lawyers.

The other thing that came out in the discussion was that both filmmakers are still a bit unsure about the legality of their films. They both have pretty strong backing from people who insist their films are above the law, but it's a bit of an open question. Kembrew's film, in particular, may run into some big questions fairly soon. His film will be airing on PBS next week (check your local listings) and while he was careful to try to license much of the music in the film, it was quite an impossible task. He noted how silly it was that if you want to use a hiphop song that uses 20 samples, you need to get licenses for both the recording and the songwriting (publishing) for the song itself and for each of the 20 songs sampled -- and even if you agreed to a $10,000 license per sample for the first 19 rights holders, if the 20th came along and demanded $30,000, you then had to go back and pay all the others $30,000 as well.

So his film contains many unlicensed clips -- including one of a George Clinton track, that Bridgeport claims ownership on. You may recall Bridgeport -- they're the company that claims to hold the rights to a ton of George Clinton music (though Clinton claims his signature was forged by Bridgeport) and has sued hundreds of hiphop artists who have sampled Clinton's works (Clinton tends to like the fact that hiphop artists sample his music). Kembrew tried to clear the right with Bridgeport, and received an amusing (if troubling) call from someone there after many, many attempts to contact them. After picking up the phone and being told that someone from Bridgeport was getting on the line, suddenly a voice on the other end yelled "DENIED!" After trying to respond to that, the guy against just said "DENIED! No reason given!" and hung up.

However, the PBS version is going forward with that clip included -- though, PBS is lucky in that it (alone) has a compulsory rate that it can pay for publishing (not recording) rights on music. Yet, the DVD copy of Kembrew's movie had to remove that scene and insert a different scene instead.

Both Gaylor and Kembrew detailed the insane lengths they had to go through to try to get Errors and Omissions (E&O) insurance, which many places require before showing a film. Kembrew actually was able to secure E&O insurance, though it was quite a hassle. Gaylor tried to, but eventually gave up, as it was just too troubling. He did, however, show a spreadsheet that he had to put together during the process of trying to get it, which went through every clip in the film, detailing where the content had come from, noting the exact length of the content, what it was used for and an explanation of why it was either licensed or fair use. The document was incredible, and Nina asked him to share it with the world so people could understand the level of ridiculousness that filmmakers had to go through. While Gaylor said he would do so, a lawyer in the audience advised him against it, suggesting it might open him up to a lawsuit.

While all of this may have sounded frustrating, the overall tone of the panel was quite optimistic. As in the post we had yesterday about the copyright bubble, the general consensus was that the younger generation today has learned to disregard copyright law. Hosler talked about how he used to have to explain the ins-and-outs of copyright law the high school and college kids when he did presentations on fair use, and now they already get it and already understand how ridiculous the laws are. It's that generation -- the ones who are growing up listening to Girl Talk and who see things like Kutiman as brilliant -- who are now understanding quite deeply what an obsolete concept traditional copyright really is in these situations. As they get older, the panel agreed, the laws would eventually catch up to reality. It might not be pretty, and there were plenty in the older generation who would lash out, misunderstand and react badly -- but the end result is inevitable.

Filed Under: brett gaylor, copyright, fair use, films, kembrew mcleod, mark hosler