Can I Borrow A Feeling?
Can I Borrow A Feeling?: Music sampling and the Law!
Written by Imran Mirza
Stemming from the LF Podcast #020, which discussed the legalities, and also the moral ambiguities of illegal downloading - seeing as the illegal downloading of music has been a much-discussed subject within Liberation Frequency - we thought we’d take the discussion in a teeny tiny different direction and discuss illegal sampling!
Hip-hop, understandably, does tend to be the prominent genre to use as a case study when it comes to sampling discussions and the subsequent laws that were forced to be put into place. The impact of hip-hop DJs and producers’ increased usage of sampling portions of instrumentation from existing songs and/or incorporating another artist’s vocals for use in their own songs, without permission, started to gain more popularity and success. Perhaps more significantly though, it was the point at which the technique started to generate a sizable amount of money from songs as a result which is when the sampled artist started to revolt and people ended up in court forced to pay royalties, issue appropriate writing credits and in many cases, cease and desist making money from someone else’s efforts.
Using or recreating a part of a song that an artist didn’t write or record means that there’s a violation of two different types of copyright law, which means permission from the publishing company as well as the record label needs to be secured. ‘What’ constituted theft though did use to be a bone of contention too: how long the piece of music being looped actually was, and whether that would constitute fair use; were enough alterations carried out to the original vocal/music thus morphing it into something new? This used to be a subject of much controversial debate, and some individual cases still can be, however, all in all, it is less ambiguous now though seeing as sampling laws are now in force and, for the most part, are fairly specific on what constitutes theft, what would need to be credited and who owns what.
Here are a few cases where sampling records, without having everything in place hasn’t always gone according to plan...
Danger Mouse Vs EMI ['The Grey Album', 2004]
By far, the most notable of the series of remix albums spawned from Jay-Z’s initial retirement from hip-hop. Producers and DJs, including, Kev Brown and 9th Wonder took the accapellas from what, at the time, was Jay-Z’s swan song, ‘The Black Album’, and married the vocals with new original production. One DJ even went as far as marrying the accapellas with instrumentals from Coldplay resulting in a surprisingly not-too-bad mashup. New remix projects seemed to emerge with each passing week, but none garnered more notoriety and praise than Danger Mouse’s, ‘The Grey Album’, which paired ‘The Black Album’ vocals with the music from The Beatles’, ‘The White Album’. [Black + White = Grey. See what he did there?!] Although initially available on a limited release, EMI soon put a stop to that once it got wind that appropriate copyright hadn’t been sought for the recreation of The Beatles’ music and copies had to be pulled from stores immediately. Despite both Paul McCartney and Jay-Z being massively in favour of the project, EMI still wouldn’t budge refusing to let the project go ahead. ‘God Bless the Internet’ though and, in this digital era, pulling store copies does absolutely nothing to stop a project from being heard… and being heard it was. Although, EMI ultimately meant Danger Mouse couldn’t earn a penny from its release, the exposure he garnered from the project is immeasurable solidifying him as one of the most sought-after producers, with a resume that would go on to include Gorillaz, Beck and a gnarly collaboration with Cee Lo Green.
Vanilla Ice Vs Queen & David Bowie ['Ice Ice Baby', 1990]
This is an interesting case, in theory, to highlight what’s mentioned above about how much of the original song is used and how much is changed to make the composition be deemed as something new and original in its own right. Actually, this is a terrible example because the argument to potentially prove the rule was later revealed to be a lie but this could have been an interesting debate nonetheless. Obviously, the song most affiliated with Vanilla Ice and, as the old adage goes, having become a success as a complete fluke. The song was originally the B-side to the song that was supposed to be the lead single, ‘Play That Funky Music’, but the DJ unintentionally played the wrong song, and the rest as they say is history. Also, famously sampling the bassline from ‘Under Pressure’, as performed by Queen and David Bowie, of course, with adequate permission NOT secured. As the song would go on to become a huge success, guess who came a-knockin! Ice’s initial defence was to claim that - get this - he added a note to the bassline thus making it an original/different piece. Unfortunately, as no one … anywhere … in the world … was able to locate this additional ‘note’, Ice would later relent and pay the due royalties and include their names as writers of the song.
Lupe Fiasco/Kanye West/Pharrell Williams Vs Thom Yorke ['Us Placers', 2007]
American hip-hop artist, Lupe Fiasco, originally attempted to put this song together boasting a guest feature from the UK’s very own Mike (‘The Streets’) Skinner, but after receiving, what can only be described as a bit of a blank, Fiasco had to opt for the second-tier level of guest appearances in the form of little-known underground personnel who you may never have heard of before - Kanye West and Pharrell Williams (take THAT, Mike Skinner!). Ultimately, it’s a song that would never go on to ‘officially’ see the light of day. It featured an elegant sample from ‘The Eraser’, which was the title-track from Thom Yorke’s (Radiohead) debut solo album, and was used beautifully as the song’s chorus while the three rappers rapped about the perils of fame. The sample was never officially cleared, thus never officially released, despite being lined up to appear at various times on both Fiasco’s and West’s solo albums, but was subsequently relegated to mixtapes only. I say, ‘never ‘officially’ see the light of day’, but that’s clearly not the case as, in yet-another ‘God Bless the Internet’ moment, it’s out there for your listening and downloadable pleasure and was a song rated highly amongst critics and fans alike.