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U.S. Copyright Laws Blow and Other Disagreements About Sampling

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    Component is a section of Aux.Out for one-off pieces, special editorials, and lost orphans of the music discussion. Today, Alyssa Pereira dives into the icky subject of copyright law and why it’s enough to cause an aneurysm to all parties involved — especially DJs.

    Copyright laws fucking suck.

    There’s a reason so many music industry workers don’t know them and so many artists don’t want to learn them, and that last sentence pretty much sums up why.

    Some aspects to the laws are grossly outdated and simply menacing. There’s no simple way to relay the copyright laws as they pertain to musicians—they’re complicated on purpose. As they’re written, the laws are wordy and convoluted, and they are meant to benefit specific people. I’m not going to try to teach you the ins and outs, but I will give you a short definition for the sake of the argument.

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    If an artist makes something and creates a so-called “tangible” copy of it (like sheet music, a recording, etc.), it’s automatically copyrighted. In addition, the copyright law says that a remixed or sampled work of an original is a derivative work and that the copyright holder of that original has the exclusive rights to make a so-called derivative work, or to permit someone else to make one.

    In many cases these days, the artist(s) and the label share the copyright, so if a new artist (a third party) wants to make his or her own remix of the track, both entities need to grant permission. For example, if Calvin Harris and Columbia, which Sony owns, put out a hit song—and, uh, hey, let’s call it “Summer”—and a producer/DJ/artist getting started in the industry wants to sample it for a totally different-sounding song, he must get permission from both the copyright holder (probably Sony) and the performer (Harris himself).

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    “HELL YEAH I’m gonna remix the SHIT outta this track.” – a bunch of naïve people who want to sample “Summer” and will promptly receive takedown notices from SoundCloud.

    Now if you haven’t heard “Summer” this summer because you’ve been holed up somewhere without media access, never go out in public, or don’t go to stores, whatever, I don’t know, I’ll fill you in: This song is fucking huge. I mean, Jason Statham is in the video.

    I’m not going to go so far as to say this is Song of the Summer (SoTS) material, but clearly, this isn’t just any song.

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    But if it is so popular and has made so much money already, why would anyone care that some producers here and there want to play with it?

    They don’t care, actually, or at least Calvin Harris doesn’t. That’s not odd—many mega-big artists don’t give a shit if a small-time producer wants to grab a few samples. Hell, to them it’s good publicity. The labels, on the other hand, handle things a little differently, even if they agree that it’s good for business.

    If you’re one of these small-time artists, it might be pretty tough to get any kind of response, let alone permission from a label whose song you’d like to sample. Many large labels don’t seem to care enough to honor requests from producers wanting to sample a larger artist’s licensed music, or if they do, they’re not letting the artist know with any kind of expediency, which is not only rude, it tends to cause some bigger trouble for everyone down the line.

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    Many artists will go ahead and do it anyway, with or without permission, and sometimes there is no consequence for posting a mash-up on SoundCloud. Sometimes. Maybe no one with any legal power will notice if the mixing artist isn’t well-known. Maybe. But with technology advances, and as copyrighted work becomes easier to detect within other music and within sites like SoundCloud, more and more artists are facing copyright infringement claims and getting smacked with huge threats for it.

    A couple months ago, Moiez released two remixes of Calvin Harris’s “Summer”.

    If you’ve used SoundCloud much, you know it’s pretty standard for artists to release remixes like these on the site. Moiez is one such guy. He has produced around 40 remixes, bootlegs, and originals over the last couple years, many of which have sampled artists like Tiësto, Morgan Page, Krewella, Zedd, and 3LAU. In some cases, the DJs go out of their way to promote transformations of their work, like Krewella playing Moiez’s “Wild Child” mix at a live show at Penn State.

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    “These are performers who appreciate that artists make bootlegs and remixes to entertain people,” Moiez told me. “From what I can tell, they don’t try to punish people for doing so.”

    Kaskade, by now a veteran of electronic music, is of that mindset, and constantly pushes for leniency in sampling. Upon receiving dozens of takedown notices from SoundCloud for copyright infringement on his own page for his just-for-fun mixes of other artists, he decided to shut down his account. But he was pissed to do it.

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    “Innovation helps the music industry,” he wrote on his blog last month before deleting his SoundCloud account. The industry only needs to make the effort to keep up and adapt. Make no mistake: Exposing as many people as possible to music—all music—is a good thing. Everyone wins. The artist, the audience, even the old guys who just want some more cash.”

    Moiez, on the other hand, was not afforded the luxury of being allowed to shut his own page down. After posting his remixes of “Summer”, SoundCloud closed his account, which had racked up thousands of followers and tens of thousands of plays, all because Sony had filed copyright infringement claims against Moiez, and only two of the three promised warnings were delivered by SoundCloud.

    moiez3 U.S. Copyright Laws Blow and Other Disagreements About Sampling

    Now, Sony is not in the wrong here (as the laws currently exist), but the label ignored Moiez’s formal request to sample “Summer” for nearly two weeks before he posted them on his account. And when they caught wind of the samples, they filed against him. After several appeals to Sony, Harris swooped in with support. “Calvin Harris’s team,” says Moiez, “was extraordinarily merciful in helping us get the copyright infringement claims removed from my SoundCloud account.”

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    It would be too easy of a wrap-up to say that most big artists don’t care about people sampling their work. It’s too simple to tell major labels to get over their shit and allow for musical expression to flow at the expense of a few unfiled copyright suits, because that’s what music’s all about, you know?

    “I really don’t hear artists making statements like that after their fame has died down [after] 10 or 20 years,” Oakland artist Amp Live says. “The artists that say what [Kaskade] said either are making a lot of money at the moment or haven’t really made big money off their music yet.”

    Amp is well-respected, especially around the Bay Area, where he makes up one half of Zion-I and also works as an independent producer. Back in 2008, he released Rainydayz, an EP of remixes derived from Radiohead’s In Rainbows. He didn’t get permission before he released it (because clearly Amp has some balls), but at the same time no one, not even Amp, wants to spar with the saintly Thom Yorke. He went ahead with it anyway—he took a risk and posted the tracks online.

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    It probably would have been real easy for Warner to sue Amp’s ass straight to copyright hell were it not for the fact that the mixtape, which featured Chali 2na, Too Short, Del Tha Funkee Homosapien, and more, was really fucking good and lauded by publications including PopMatters, Exclaim, and Stereogum.

    “It was pretty crazy and stressful. The first two remixes had already picked up steam with the blogs, and people were waiting for more.”

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    Amp’s management convinced Radiohead’s team to give it a listen and decide whether or not to pursue legal action. Following a lot of good feedback from the EP, Radiohead agreed to license it, as long as it stayed a free download.

    But victories of that magnitude don’t come easy, and terms of these agreements are never so clearly defined. Goliath organizations like major labels have the resources to sue whomever they want for any amount of money, all while giving zero shits about the quality of artfulness a remix might have.

    And that’s the reality about where we are today. Artists like Moiez have trouble getting permission for sampling, can’t afford exorbitant sample rates when they are offered for sale, and don’t see why the laws aren’t more lax for derivative works.

    amp U.S. Copyright Laws Blow and Other Disagreements About Sampling

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    Meanwhile, artists like Amp Live, who have gotten wise to how difficult it is to attain samples, work to create original beats to keep their own profits as high as possible. These artists tend to have a complicated relationship with copyright laws. “Having sample-heavy music made it a pain to get those songs licensed,” Amp noted. “So, I have mastered the art of making sounds sound like samples to keep that feel, but [to] also [keep] everything mostly original.” Amp, who has an album called Headphone Concerto coming out this August, relies on the royalty-free production that creating original work provides. That way, he retains profits and can protect his work from infringement. He’s keen enough to industry law to know to not fuck with it, but he can also see both sides of the issue.

    At the top, artists like Kaskade and Calvin Harris make so much money that they don’t have the same possession over the reach of their royalties that their labels do. Moiez’s mixes of “Summer” aren’t going to detract any money from Harris’s profits. If anything, they’ll make it even more visible.

    So, what’s the solution? Obviously there isn’t an easy one.

    Creative work should be protected from being flagrantly stolen, but looping and sampling existing music has become so integral to the creation of acid jazz, hip-hop, pop, and now electronic music that it’s time to look for solutions that better fit the generation. Sampling has been pretty legitimized across genres in music, with even the Grammy committee voting to allow interpolation within all categories. It’s high time to embrace some options for moving forward.

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    The ideal answer is one that appeases both those who create original music and those who would like to sample it.

    Kaskade, for one, has proposed giving music away like an open library to allow for guilt-free mixing. That, while a valiant suggestion, shouldn’t be mandated on other artists. Music, like any kind of art, is personal, and forcing people to give it away is never a good idea.

    Kaskade-Official-Headshot-Photocredit-Mark-Owens

    Another idea is to further define the constraints of what constitutes fair use. Currently, there is no minimum or maximum amount of time that equates a “sample,” so clearly, delineating those parameters may be a step in the right direction. How can we talk about samples if there is no standardized and widely accepted definition of it?

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    A third option is the most popular (and apparently viable) but also the most divisive: a compulsory licensing scheme like that currently used by artists to attain permissions for covering songs. Opponents argue that it takes power away from songwriters, but it seems the strongest baseline for igniting some change. Surely, there must be a way to simplify the process without completely screwing over songwriters or artists.

    It seems that a combination of a standardized sample size (whether it’s based on BPM, measure size, or what have you) and a modified compulsory licensing model using sample sizes as units rather than full songs would serve as the most beneficial place to start. This, though, is where I as a music writer am out of my depth.

    Now, SoundCloud’s current police state—the topic that spurred this article—sees it folding to a power bigger than it is, doing dirty work for the labels. It has come a long way from “We actually wanted to start a place on the web that made it simple for people to share their sounds,” as they told Noisey. But it’s not so much a sharing ground these days as it is open season for major labels to hunt down copyright infringers.

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    “In the fine arts, there is a long tradition of appropriating copyrighted material and using it in new works,” Moiez says. “In the music industry, given its commercial nature, this has always been frowned upon, and the practice has been actively persecuted under the law.”

    Music is, after all, a fine art, albeit a heavily commercialized one, but just how much ownership can an artist claim over an expression? Should a songwriter have any say over whether or not a song’s sound is used? Can a room of label execs in Los Angeles adequately set a price on four seconds of a copyrighted B-side?

    Probably no one better sums up an idealist solution than Amp Live when he says, “Point blank to me is that everyone deserves a piece of the pie.”

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    It’s true, but the problem is this: No one wants to be the one to slice it.

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