Free Samples

When you're in the business of releasing and distributing experimental audio artwork, an e-mail bearing the domain name "CBS.com" probably spells trouble.That was the case this year for Mark Seilhamer, co-founder of the San Francisco record label Eerie Materials. On January 21, his computer flashed with a message from one wikryle@CBS.com with the subject heading: ROCKED BY RAPE."Rocked by Rape" was the title of a vinyl single that Eerie had released two years before. The record, by an Ohio-based trio called the Evolution Control Committee, was a satirical send-up of violence and sensationalism in TV news. It featured the voice of CBS Evening News anchor Dan Rather, with booming samples from heavy metal band AC/DC running underneath.The single begins with one of the nation's most trusted voices greeting listeners with a benevolent "good evening.'' As the AC/DC samples kick in, Rather intones one violent calamity after the next. The record ends with Rather's cheery, "good night and have a great weekend.""Rocked by Rape" is a four-minute tour of months of television news, distilled to what the record's creators feel is its essence. It was meant to point a finger, says Evolution Control bandmember Mark Gunderson, at the violence that pervades television news. It was meant as parody, as satire, as art.CBS didn't see it that way."Ladies/Gentlemen," CBS attorney Sanford I. Kryle began in his electronic missive. "A matter of serious concern has come to our attention. We have learned that you are offering for sale asound recording containing the CBS Evening News opening theme and Dan Rather's voice."This was no fan letter.Kryle's message went on to demand that Eerie immediately cease distributing and selling "Rocked by Rape" because it "significantly infringes upon the copyrights owned by CBS."Seilhamer pulled the record from the Eerie lineup. But Evolution Control continues to hawk the single on its Web site.It's unclear whether CBS plans to follow up its threat with legal action (neither Kryle nor Rather responded to requests for comment). But the flap the network started over the record still raises a question that has plagued judges, legal scholars and lawmakers since the early 1980s: what, if any, forms of digital sampling constitute fair use of copyrighted material? The question, once an arcane legal matter, has grown in importance as sampling -- and the technology to carry it out -- has become more commonplace.And its implications aren't restricted to the music industry. Given that most music today exists as stored bits on a CD or in a master tape, copyright and fair use issues in music are increasingly relevant to books, films, art and other creative, copyrightable endeavors whose wares can be expressed in digital form.Although the courts have not set rigid guidelines on the question of sampling, the most significant decisions on the matter have come down against the practice. Still, sampling itself shows no sign of letting up.To sample a catchphrase from sports broadcasting, let's go to the tape.***This is not a story about rap music -- although rappers' regular appropriation and clearance of samples have set important legal precedents for musicians interested in using the cut-and-paste approach. It's a story about those who take sampling to its logical conclusion, using it not just to create a "hook" or catchy refrain but as the bulk of a composition.In this musical world, it's all samples.The style is sometimes called "plunderphonic" -- an allusion to the Canadian sampler-composer John Oswald's 1989 recording of the same name. Along with Oswald and the Evolution Control Committee, the genre's most celebrated practitioners are Bay Area collective Negativland and the international trio the Tape-beatles.Of these four groups, only one has escaped legal entanglements."We've been fortunate enough never to have been sued," says the Tape-beatles' Lloyd Dunn. "But the fact is, in order to make the work we want to make, we have to sort of ignore the possibility that we can be sued."It's our feeling that what we're doing is ethically valid, in spite of the fact that it uses work that someone else has made. Because what we're doing is creating a new context for small pieces of that work. We're not stealing somebody else's work wholesale. We're actually just using small pieces of it without permission in new contexts that create paradoxically new, original works."Dunn, who lives in Iowa, collaborates with his bandmates -- John Heck, who lives in Prague, and Ralph Johnson, who lives in San Leandro and works at Mills College -- over the Internet, by snail-mail and, on rare occasions, in person.To hear the Tape-beatles is to wander into an aural salvage yard of cultural detritus from the past 50 years (similar in spirit, if not in execution, to the Beatles' "Revolution #9"). Voices may speak in complete sentences, but the content is made up largely of material spliced from a hodgepodge of sources: an educational filmstrip from the '60s, a radio commercial from the '80s, an obscure pop song from the '70s.Randomly placed, such snippets can sound like a short attention-span scan across the radio dial. But in the hands of a skilled sampler, the effect can range from surreal to silly to satirical to sardonic.On the Tape-beatles latest album, Good Times, phonics of all persuasions are plundered to create a sound collage that deflates America's euphoria over its current economic prosperity. (Download-able tracks by the Tape-beatles and those of many artists discussed in this story can be found on the Web sites listed below.)On the song "The Human Machine," for instance, the trio drop in segments from a vocational guidance record that proffers advice to aspiring wage slaves. Mixing in percussion found on a microphone-maker's demo CD, the two competing sources create a relief that supersedes the sum of its parts."The combination creates a sense of regimentation," Dunn says. "It creates a sense of enforcement, of a rigid structure that these people are forced to build their lives around to have employment. So it ends up being a funny and entertaining piece because of the overbearing quality of the drumbeats and also the almost humble way that people are presenting their own lives."The follow-up track, "Byways of Ghostland," mixes a hilarious hyperactive tonic of chase and nab 'em scenes that could be found in any generic action movie. Each unintelligible exclamation that the over-actors scream is delivered with such inexplicable intensity and melodramatic vim that, divorced of any context, the two-minute opus provides a searing, succinct critique of the Hollywood hit factory. And, unlike treatises one might find in Film Comment or Art Forum, the only discernible text in "Byways" is, "You're gonna get us all killed!"***The argument plunderphonic artists most frequently advance in defense of their right to create and distribute audio collage is that the techniques they employ are as old as art. Only the technology is new.In the 15th and 16th centuries the quodlibet was a widely practiced form in European music that ripped off other songs, often to comic effect. The most famous example of this musical borrowing is the last of Bach's "Goldberg Variations," which splices together two popular melodies of his era, "Long Have I Been Away from Thee" and "Cabbage and Turnips."Of course, composers and performers across the ages have engaged in quodlibetry of some form, from Mozart and Charles Ives importing popular folk melodies into their symphonies to innumerable jazz players lifting solos, licks, even entire songs to create new material.As John Oswald wrote in his influential 1985 plunderphonic manifesto, Audio Piracy as a Compositional Prerogative: "Ives composed in an era in which much of music existed in a public domain. Public domain is now legally defined, although it maintains a distance from the present which varies from country to country. In order to follow Ives' model, we would be restricted to using the same oldies which in his time were current."Or, as Stravinsky put it, "a good composer does not imitate, he steals."The courts don't take such a lenient a view. The closest American legal code comes to allowing free and unfettered access to copyrighted materials -- including both musical compositions and recordings -- is described in Section 107 of the U.S. Copyright Act.The law states that "fair use" of copyrighted materials is allowed in the cases of "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research."A 1994 Supreme Court case between Roy Orbison's music publishing company and rap group 2 Live Crew broadened the fair use category to include parody as well. The Miami rappers had spoofed Orbison's chestnut, "Oh, Pretty Woman" on their album As Clean/Nasty As They Wanna Be and Orbison's publisher cried copyright infringement. In the court's unanimous decision denying Acuff-Rose Music's copyright claim, Justice David Souter wrote, "The fact that parody can claim legitimacy for some appropriation does not, of course, tell either parodist or judge much about where to draw the line . . . Accordingly, parody, like any other use, has to work its way through the relevant factors and be judged case by case, in light of the ends of the copyright law."The U.S. Constitution's brief mention of copyright authorizes Congress to "promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."Copyright expert William W. Fisher III of Harvard Law School says the battle over fair use long has been waged between those "interested in strengthening intellectual property protection on the one hand, and on the other hand, people who have an artistic or consumer interest in making use of copyrighted work."The former category constitutes some of the most powerful corporations and commercial interests in America, including AOL/Time Warner, Disney/Cap Cities, CBS/Westinghouse, GE/NBC, and other corporate conglomerates. However, in a time of great media consolidation, artists and consumers are lucky to find nearly as much power and influence fighting on their behalf.In a 1993 decision, Judge Alex Kozinski of the Ninth Circuit U.S. Court of Appeals noted that a loss of balance between the two extremes results in a loss for society."Overprotecting intellectual property is as harmful as underprotecting it," he wrote in his decision. "Creativity is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new."Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it's supposed to nurture."***Now into this fog of fair use controversy comes the digital sampler, wielded by plunderphonic artists as well as their less sampler-centered compatriots in rap and pop music.As Harvard Law School's Fisher notes, "[Sampling] is straightforward, verbatim copying. On the other hand, it's for transformative uses and it's typically not very much of the copyrighted material. So things get sort of twisted because of the peculiarities of the copying, and courts struggle over the legitimacy of digital sampling."And the courts have left plenty of room for questions and doubts.For all its use in popular music today, only two major cases examining the use of sampling have made it to trial. It is on these two cases alone that lawyers can base their understanding of the legalities of sampling.A New York district court's opinion in one case (Grand Upright Music, Ltd. v. Warner Bros. Records) borrowed the Seventh Commandment -- "thou shalt not steal" -- in rendering its decision against sampler and rapper Biz Markie. The other case (Jarvis v. A&M Records) generated an opinion stating, "there can be no more brazen stealing of music than digital sampling."Not surprisingly, most entertainment lawyers dealing with sampling today say fair use rarely enters into the legal picture."When I'm advising clients in the real world, we don't start talking about fair use, we start talking about clearing it and avoiding a lawsuit," says Michael Ashburne, an Oakland lawyer and member of the California Lawyers for the Arts -- a coalition that provided legal assistance to Negativland during the band's copyright battle with U2 and Casey Kasem. "The expense of litigation is so enormous these days that from a practical standpoint, people who are doing this for profit don't want to take the chance to litigate this down the road."Instead, Ashburne advises clients -- who include the Bay Area rap acts Souls of Mischief and Del the Funkee Homosapien -- that if a sample can be detected, a sample should be cleared. For example, if an artist places one detectable sample on a CD, she typically would pay out $3,000 to $8,000 for every 100,000 CDs sold -- with the steepness of the rates determined by the centrality of the sample to the song's structure."This means that if you've got a sample on every track on a record, you could easily be paying out eighty thousand bucks just to release it," Ashburne says.What does this mean for underground sampling artists who cannot afford the costs of lawyers and clearance fees? Should they just hang it up and make music without their cultural and musical quotations?One San Francisco act, the Marginal Prophets, spelled the dilemma out in the liner notes to their recent album Twist the Nob."We see ourselves as musicians making collages with sound," the Prophets write. "We would like nothing more than to be able to pay for the samples we use. We don't want to see anyone getting ripped off. However, when we looked into sample clearing we found out that the cost was way beyond what we could afford. The only people with the kind of money needed to clear samples legally are the record labels."The Prophets go on to ask for the industry's indulgence in allowing them to get their foot in the entertainment door before requesting royalties on samples.If the band makes it, they say, they'll pony up for the samples. If not -- "then all that's happened is that three dudes in San Francisco released some CDs on their own, with uncleared samples, and went nowhere."Bay Area electronic artists Negativland are standing firm behind their belief in the right to sample. Their 1995 book, Fair Use: The Story of the Letter U and the Numeral 2, details the legal quagmire created by a single of theirs that used samples from a U2 song and an outtake from a Casey Kasem "American Top 40" broadcast."Our position is fair use for collage," says Negativland's Don Joyce. "We do collage. Basically, there's nothing wrong with it. It's not a threat. It's not in competition with the sources used. It's such a natural and healthy human instinct that has been stifled by the notion that all art is private property."Joyce blames the business side of art for quashing creativity."[Art] has always wanted to evolve by stealing," he says. "It's been going on forever in the history of art, and now you can't do it."Judge Kozinski finds current trends in copyright law are having a similar chilling effect."Intellectual property rights aren't free, they're imposed at the expense of future creators and of the public at large," he wrote in a recent opinion. "Where would we be if Charles Lindbergh had an exclusive right in the concept of a heroic solo aviator? If Arthur Conan Doyle had gotten a copyright in the idea of the detective story, or if Albert Einstein had patented the theory of relativity? If every author and celebrity had been given the right to keep people from mocking them or their work?"Surely, this would have made the world poorer, not richer, culturally as well as economically."Poorer is exactly where the Evolution Control Committee finds itself.Had the band requested permission to spoof CBS News, its satire would never have left the planning phase. But without permission Evolution Control left itself open to a sales-stifling legal threat from CBS.Evolution Control's Gunderson countered the threatening e-mail from CBS with his own missive."The copyright law itself allows for people to make fair use of copyrighted materials for purposes of parody," he wrote. "'Rocked By Rape' is nothing if not parody. The suggestion that a listener might mistakenly presume that CBS would have endorsed such a recording as you suggest is simply ludicrous."The title itself is not the result of some clever editing trick on our part, but was actually spoken by Rather during one broadcast. While the context of that phrase and others we included in our piece may differ from the original, we feel that these 'shock phrases' are often all that remain in a viewer's mind after each broadcast. Our critique -- our parody -- makes this point plainly."Ideally -- at least in a situation where his legal bills would be covered -- Gunderson would like the opportunity to defend Evolution Control's work."I wish that we had our chance to prove our rights in court, because I firmly believe this is a legal release," Gunderson says. "I believe this is a parody and it would be allowable as such."Steev Hise is a San Francisco-based sampler artist who contributed to a 1998 compilation sampling a leading pop-music sampler in his own right, Beck. (The CD, Deconstructing Beck, generated a threatening letter to its label, Illegal Art. Beck's record label, DGC, never pursued legal action. There are unconfirmed reports that Beck himself got wind of the controversy and called off DGC's legal hounds.) Hise fears that given the current legal and economic climate the protection afforded by fair use will only dwindle in the future."In the name of protecting artists, these middlemen, these corporations, have set up a system where they can profit from other people doing the creative work," he says. "It's kind of paradoxical. I see it getting worse and worse, where copyright gets more and more stringent."Plunderphonic pioneer Oswald anticipated the dilemmas faced by Negativland, Hise, Evolution Control, the Tape-beatles and their colleagues. In his 1985 essay, he reduced the sampling problem to a single query."So the equipment is available, and everybody's doing it, blatantly or otherwise," he wrote. "Melodic invention is nothing to lose sleep over. There's a certain amount of legal leeway for imitation. Now can we, like Charles Ives, borrow merrily and blatantly from all the music in the air?"

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