Good Copy, Bad Copy

Covers, Sampling and Copyright

1Nine Inch Nails have just released a new single; In addition to the usual formats, “The Hand That Feeds” was available for free download in Garageband format. Trent Reznor explained, “For quite some time I’ve been interested in the idea of allowing you the ability to tinker around with my tracks – to create remixes, experiment, embellish or destroy what’s there” (MacMinute 15 April 2005). Reznor invites creativity facilitated by copying and transformation. “Copy” carries connotations of unsavoury notions such as piracy, stealing, fake, and plagiarism. Conversely, in some circumstances copying is acceptable, some situations demand copying. This article examines the treatment of “copy” at the intersection of musical creativity and copyright law with regard to cover versions and sampling.

2Waldron reminds us that copyright was devised first and foremost with a public benefit in mind (851). This fundamental has been persistently reiterated (H. R Rep. (1909); Sen. Rep. (1909); H. R. Rep. (1988); Patterson & Lindberg 70). The law grants creators a bundle of rights in copyrighted works. Two rights implicated in recorded music are located in the composition and the recording. Many potential uses of copyrighted songs require a license. The Copyright Act 1976, s. 115 provides a compulsory licence for cover versions. In other words, any song can be covered for a statutory royalty fee. The law curtails the extent of the copyright monopoly. Compulsory licensing serves both creative and business sides of the recording industry. First, it ensures creative diversity. Musicians are free to reinterpret cultural soundtracks. Second, it safeguards the composer’s right to generate an income from his work by securing royalties for subsequent usage. Although s. 115 permits a certain degree of artistic licence, it requires “the arrangement shall not change the basic melody or fundamental character of the work”. Notwithstanding this proviso, songs can still be transformed and their meaning reshaped. Johnny Cash was able to provide an insight into the mind of a dying man through covering such songs as Nine Inch Nails’ “Hurt”, Depeche Mode’s “Personal Jesus” and Parker & Charles’ “We’ll Meet Again”.

3Compulsory licensing was introduced in response to a Supreme Court decision that deprived composers of royalties. Congress recognised:

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The main object to be desired in expanding copyright protection accorded to music has been to give to the composer an adequate return for the value of his composition, and it has been a serious and difficult task to combine the protection of the composer with the protection of the public, and to so frame an act that it would accomplish the double purpose of securing to the composer and at the same time prevent the formation of oppressive monopolies, which might be founded upon the very rights granted to the composer for the purpose of protecting his interests (H. R. Rep. (1909)).

5Composers exercise rights over the initial exploitation of a song. Once a recording is released, the right is curtailed to serve the public dimension of copyright.

6A sampler is a device that allows recorded (sampled) sounds to be triggered from a MIDI keyboard or sequencer. Samplers provide potent tools for transforming sounds – filters, pitch-shifting, time-stretching and effects can warp samples beyond recognition. Sampling is a practice that formed the backbone of rap and hip-hop, features heavily in many forms of electronic music, and has proved invaluable in many studio productions (Rose 73-80; Prendergast 383-84, 415-16, 433-34). Samples implicate both of the musical copyrights mentioned earlier. To legally use a sample, the rights in the recording and the underlying composition must be licensed. Ostensibly, acquiring permission to use the composition poses few obstacles due to the compulsory licence. The sound recording, however, is a different matter entirely.

7There is no compulsory licence for sound recordings. Copyright owners (usually record labels) are free to demand whatever fees they see fit. For example, SST charged Fatboy Slim $1000 for sampling a Negativland record (Negativland). (Ironically, the sample was itself an unlicensed sample appropriated from a 1966 religious recording.) The price paid by The Verve for sampling an obscure orchestral version of a Rolling Stones song was more substantial. Allan Klein owns the copyright in “The Last Time” released by The Andrew Oldham Orchestra in 1965 (American Hit Network, undated). Licence negotiations for the sample left Klein with 100% of the royalties from the song and The Verve with a bitter taste. To add insult to injury, “Bittersweet Symphony” was attributed to Mick Jagger and Keith Richards when the song was nominated for a Grammy (Superswell, undated). License fees can prove prohibitive to many musicians and may outweigh the artistic merit in using the sample: “Sony wanted five thousand dollars for the Clash sample, which … is one thousand dollars a word. In retrospect, this was a bargain, given the skyrocketing costs of sampling throughout the 1990s” (McLeod 86). Adam Dorn, alias Mocean Worker, tried for nine months to licence a sample of gospel singer Mahalia Jackson. Eventually his persistent requests were met with a demand for $10,000 in advance with royalties of six cents per record. Dorn was working with an album budget of a mere $40 and was expecting to sell 2500 copies (Beaujon 25). Unregulated licensing fees stifle creativity and create a de facto monopoly over recorded music. Although copyright was designed to be an engine of free expression1 it still carries characteristics of its monopolistic, totalitarian heritage. The decision in Bridgeport Music v. Dimension Films supported this monopoly. Judge Guy ruled, “Get a license or do not sample. We do not see this stifling creativity in any significant way” (397).

8The lack of compulsory licensing and the Bridgeport decision creates an untenable situation for sampling musicians and adversely impacts upon the public benefit derived from creative diversity and transformative works (Netanel 288, 331). The sobering potential for lawsuits, ruinous legal costs, injunctions, damages (to copyright owners as well as master recordings), suppresses the creativity of musicians unwilling or unable to pay licence fees (Negativland 251.).

9I’m a big fan of David Bowie. If I wanted to release a cover version of “Survive”, Bowie and Gabrels (composers) and BMI (publishers) could not prevent it. According the Harry Fox Agency’s online licensing system, it would cost $222.50 (US) for a licence to produce 2500 copies. The compulsory licence demands fidelity to the character of the original. Although my own individual style would be embedded in the cover version, the potential for transformation is limited. Whilst trawling through results from a search for “acapella” on the Soulseek network I found an MP3 of the vocal acapella for “Survive”. Thirty minutes later Bowie was loaded into Sonar 4 and accompanied by a drum loop and bass line whilst I jammed along on guitar and tinkered with synths. Free access to music encourages creative diversity and active cultural participation. Licensing fees, however, may prohibit such creative explorations. Sampling technology offers some truly innovative possibilities for transforming recorded sound. The Roland VariOS can pitch-eliminate; a vocal sample can be reproduced to a melody played by the sampling musician. Although the original singer’s voice is preserved the melody and characteristic nuances can be significantly altered:

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V-Producer’s Phrase Scope [a system software component] separates the melody from the rest of the phrase, allowing users to re-construct a new melody or add harmonies graphically, or by playing in notes from a MIDI keyboard. Using Phrase Scope, you can take an existing vocal phrase or melodic instrument phrase and change the actual notes, phrasing and vocal gender without unwanted artefacts.

11Bowie’s original vocal could be aligned with an original melody and set to an original composition. The original would be completely transformed into a new creative work. Unfortunately, EMI is the parent company for Virgin Records, the copyright owner of “Survive”. It is doubtful licence fees could be accommodated by many inspired bedroom producers. EMI’s reaction to DJ Dangermouse’s “Grey Album“ suggests that it would not look upon unlicensed sampling with any favour. Threatening letters from lawyers representing one of the “Big Four” are enough to subjugate most small time producers. Fair use? If a musician is unable to afford a licence, it is unlikely he can afford a fair use defence. Musicians planning only a limited run, underground release may be forgiven for assuming that the “Big Four” have better things to do than trawl through bins of White Labels for unlicensed samples. Professional bootlegger Richard X found otherwise when his history of unlicensed sampling caught up to him: “A certain major label won’t let me use any samples I ask them to. We just got a report back from them saying, ‘Due to Richard’s earlier work of which we are well aware, we will not be assisting him with any future projects’” (Petridis).

12For record labels “copy” equals “money”. Allan Klein did very well out of licensing his newly acquired “Bittersweet Symphony” to Nike (Superswell). Inability to afford either licences or legal costs means that some innovative and novel creations will never leave the bedroom. Sampling masterpieces such as “It Takes a Nation of Millions to Hold Us Back” are no longer cost effective (McLeod). The absence of a compulsory licence for sampling permits a de facto monopoly over recorded music. Tricia Rose notes the recording industry knows the value of “copy” (90). “Copy” is permissible as long as musicians pay for the privilege – if the resultant market for the sampling song is not highly profitable labels may decline to negotiate a licence. Some parties have recognised the value of the desire to creatively engage with music. UK (dis)band(ed) Curve posted component samples of their song “Unreadable Communication” on their website and invited fans to create their own versions of the song. All submissions were listed on the website. Although the band reserved copyright, they permitted me to upload my version to my online distribution website for free download. It has been downloaded 113 times and streamed a further 112 times over the last couple of months. The remix project has a reciprocal dimension: Creative engagement strengthens the fan base. Guitarist/programmer, Dean Garcia, states “the main reason for posting the samples is for others to experiment with something they love . . . an opportunity as you say to mess around with something you otherwise would never have access to2”. Umixit is testing the market for remixable songs. Although the company has only five bands on its roster (the most notable being Aerosmith), it will be interesting to observe the development of a market for “neutered sampling” and how long it will be before the majors claim a stake. The would-be descendants of Grand Master Flash and Afrika Bambaataa may find themselves bound by end-user licences and contracts.

13The notion of “copy” at the nexus of creativity and copyright law is simultaneously a vehicle for free expression and a vulgar infringement on a valuable economic interest. The compulsory licence for cover versions encourages musicians to rework existing music, uncover hidden meaning, challenge the boundaries of genre, and actively participate in culture creation. Lack of affirmative congressional or judicial interference in the current sampling regime places the beneficial aspects of “copy” under an oppressive monopoly founded on copyright, an engine of free expression.