Creative License: The Law and Culture of Digital Sampling

June 16, 2011

The art of musical collage has followed a rocky path in the years since 1988, when Public Enemy redefined popular music with their album It Takes a Nation of Millions to Hold us Back, and, a year later, the Beastie Boys drew the clear lines between active fandom and creativity with Paul's Boutique. It's a path that has led to a simple choice for the artist: either license samples at a huge cost, or use them without clearance and risk being sued. Ultimately this has led to an environment in which awareness of potential litigation meant that an artist of the stature and commercial clout of Jay-Z sought permission from David Bowie simply to mimic the singer's delivery of the word "fame" when recording his song Takeover. It is hard to imagine a similar step being thought necessary in visual art, film or literature.

With the help of an extensive collection of interviews with key hip hop artists, legal representatives and artist managers, Kembrew McLeod and Peter DiCola unpick the complexities of the laws that surround the issues of sampling and bring them to life through investigation of their impact on creativity and wider music-related cultures. The authors illuminate these stories through carefully researched case studies that pull back the layers to reveal a continuity of social, economic and musical contradictions at the heart of sample licensing.

One telling example is the tale of music archivist Alan Lomax, who filed for ownership of the field recordings of traditional folk songs he had made for the Library of Congress during the Great Depression. The original performers weren't named; nor were songwriting credits given, as many of these songs had no clearly defined composers.

As the authors point out: "It was not uncommon for a black songwriter to have his or her name replaced by a businessperson or musician with more legal and economic resources but little or no involvement in songwriting." But through the act of sampling, "song collectors" such as Lomax have ended up with songwriting credits on some of hip hop's canonical tracks - an uncomfortable reminder of the exploitation of African-American artists by whites across the history of 20th-century music.

Indeed, the presence of Lomax reveals just how convoluted the issues surrounding the sampling of copyrighted recorded music have become. A look at Jay-Z's Takeover shows the almost farcical state of affairs at play. The song is credited to Jay-Z and the track's producer, Kanye West, but it has a huge list of stakeholders despite containing samples from only two other songs. One of these is a two-second snippet of KRS-One's Sound of da Police, which itself includes a sample of Grand Funk Railroad's cover of the Animals' Inside Looking Out. But this was actually a rewrite of a 19th-century folk song, Rosie, which had been "collected" by and attributed to Alan Lomax and his father, John. As a result, and despite the fact that Jay-Z lifted only a vocal snippet from the KRS-One track, each of the copyright owners in this chain had a claim to the Jay-Z song.

With the high-cost, litigation-aware environment that has emerged around the art of sampling, many artists simply won't sample any more. As the authors of this excellent book acknowledge, neither Public Enemy nor the Beastie Boys would have been able to afford to release their epoch-defining breakthrough recordings had they been created today, underscoring the significant questions raised about the balance between law and creativity. This is not simply a book for people with an interest in hip hop production. It is a must for anyone who is interested in copyright stories so absurd that they reveal the contradictions and tensions at play when unclear and convoluted laws put creativity and commerce on a collision course.

Creative License: The Law and Culture of Digital Sampling

By Kembrew McLeod and Peter DiCola.Duke University Press.336pp, £64.00 and £15.99.ISBN 9780822348641 and 48757.Published 31 May 2011.

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