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Sampling: a quick look into the copyrights and how they apply to hip hop in theory and practice. By Mikko Kapanen (2009) Thanks to the ones interviewed. Secondary sources are listed in the
ody of text and in the bibliography. Writer of the text releases this to he universe with no copyright related demands.
bt
This paper looks at sampling specifically in the hip‐hop music,
exploring the co‐existence of cultural and industry practices. The
history of the genre helps us to understand to some extent how DJ‐
driven musical style evolved into using samples as sonic (sometimes
also political or cultural) references to other music. The copyright
laws that address sampling are interpreted through the discourse
and understanding of what is actually happening in the act of
sampling; referencing to, or copying someone else’s creativity. For
financial reasons the opinion on the legal platform is the latter
(McLeod 2004). The question that I look into is how does the
opyright law impact on the practices of hip‐hop through sampling? c
This paper is mainly based on the articles Sampling Ethics by Joseph
Schloss (2004), This Is A Sampling Sport’: Digital Sampling, Rap Music
and the Law in Cultural Production by Thomas Schumacher (1995),
“’Don’t Have No To DJ No More’: Sampling and the ‘Autonomous’
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Creator ”in The Construction of Authorship by David Sanjek (1994) as
well as Kembrew McLeod’s How Copyright Law Changed Hiphop: An
Interview with Public Enemy’s Chuck D and Hank Shocklee (2004).
Some interviews were also conducted by hip‐hop artists and
producers in order to explore how does the theory match the actual
practice in South Africa and elsewhere. These interviews are offered
as real life case studies of individual practitioners, and this paper
does not offer evidence for or against these reflecting the dominant
ractices nationally or internationally. p
What are these samples?
The discourse of sampling is determined by its perspective. Legally
speaking copyright law regulates this practice and this perspective is
driven by economics. Copyright laws are property laws (Schumacher
1995: 253) and therefore “political and economic, not moral matter”
(Frith 1987: 73). In practice, sampling is part of creative process and
not a legal one (interview with Damian Stephens 2009) so it is not as
easy to regulate by law. Samples can be also interpreted as musical
quotations that should be treated in a same way as with literature by
crediting all sources (Sanjek 1994: 358). Sometimes sampling is not
only a question of sounds, but the artists sampling can also want to
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tap into the political or other contexts of the original song as well.
Examples of such songs may be for instance Zuluboy’s song
Nomalanga which samples Caiphus Semenya’s struggle song and This
Is London by Akala sampling London Calling by the Clash. Akala
himself says that most importantly the sampling was about sound,
but that it took other things into consideration as well (interview
with Akala 2009). For economic reasons the most powerful
interpretation is the one favoured by copyright lawyers and the by
and large corporate right owners (McLeod 2004).
For the purposes of this paper I have divided hip‐hop roughly into
two extreme ends of the spectrum: industry and culture as illustrated
in the table 1.
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These two different aspects are not mutually exclusive or even very
common occurrences in their purest form as they are here presented,
but they are, as said, the extreme ends of the spectrum leaving most
things as shades of grey somewhere in the middle. Most hip‐hop
practitioners are not famous or even living out of the art form, but
use it for other means such as self‐expression. Just like football has
many more kids playing in the parks than David Beckhams, so does
the hip‐hop culture have more non‐profit making or nominal income
(regardless of trying to earn more) practitioners than super stars
that often get referred to in the sampling debates. Viewing sampling
purely economically tends to overlook the fact that mostly hip‐hop is
driven by something else. Most of the established artists have a
strong presence of both culture and industry in their function. It also
is important to remember that as hip‐hop and rap as a genre has
been initially defined in the United States, much of the discourse
reflect that, rather than its now global reach and usage as a platform
for people to express their own culture through it, or it, through their
own culture. When Schloss (2004) talks about the ethics of sampling
based on the cultural values of hip‐hop (instead of the copyright law),
the focus is on North American hip‐hop and of a certain era. Today
world wide these unwritten ethical codes, regardless of Schloss
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writing them down, may be little known or given thought to outside
of the ‘old school’. Five out of six rules that Schloss has recorded
could be seen as something that limits the creativity (vinyl as the only
source of samples, not sampling from other hip‐hop records, not
sampling from records you respect, not sampling from compilations
or re‐issues, only sampling one part of a record) and only one tries to
encourage the diversity of sounds (not using the same sample
someone has already used unless it has been changed significantly).
Rules like these could have been expected to be known and
understood in the streets of New York when vinyl was more
available, but it would appear rather elitist to judge the youth world
wide for using what they can. Also, trying to interpret other cultures
through a narrow window of one’s own does not offer much real
clarity. The discourse around sampling, just like with many
intellectual property matters, suffers from many confusions of the
extreme opinions (Lessig 2004: 212) and therefore both the
corporate industry and the cultural purist end up doing more harm
than good to the general understanding around the sampling as
consisted of its creative practice and economics. The history of
sampling explains, although does not justify, to some extent why
sampling is still such a problematic concept for the music industry
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although these days the general practice is that the songs that have
any significant financial returns have only cleared samples. This
means royalties to the right owner, introducing old artists to new
markets and reintroducing the original artists to the old audiences. It
s that history we are exploring next. i
Roots of sampling and a short history of hip-hop
Sampling b c is not music.
asically comes from the fact that rap musiIt's rap over music. (Chuck D of Public Enemy in McLeod 2004)
The early sampling was a manual procedure consisted of live mixing
of various songs by the DJ:s in the context of Jamaican mobile
discotheques. Different effects such as reverb, echo and emphasising
the bass started to be applied on tracks a little later and this became
called dub (Sanjek 1994: 346‐7). This activity of different people
creating different, and potentially endless amounts of versions
supports Foucault’s (1977) idea of the flaws of single author‐
function; no one really has the last say (Sanjek 1994: 347). When one
looks into these roots of hip‐hop it seems evident that its influence
was the practice of DJ:ing rather than musicianship as it was
traditionally known, and therefore sampling; interpreting someone
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else’s creativity by re‐using sound elements, seems like a natural part
f the genre. o
During the course of the seventies this style of Jamaican DJ culture
moved to New York and created its own scene that later on became
the hip‐hop culture. The vocal performance of rapping was initially to
support the DJ and hype the audience up but with time in New York it
became an art form – probably building on the poetry culture – on its
own right. On top of DJ Kool Herc, who gets to be credited as the
originator of the culture in United States, other DJ:s such as Afrika
Bambaata and Grandmaster Flash were developing live mixing
techniques of looping break beats (Sanjek 1994: 347) and using other
elements of songs in a way that they were not necessarily even
ecognisable. r
MIDI technology, created in the early eighties, allowed the manual
real time mixing culture to become pre‐recorded. Although initial
technology was far from current equipment, it was the early version
f sampling as many understand it now (Sanjek 1994: 348). o
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Another confusion in the discourse of sampling is its simplification.
Especially the ones not very familiar with hip‐hop tend to refer to
only the most obvious samples that do not particularly emphasise
creativity. However, according to Sanjek (1994: 348‐51), there are
our main ways to use samples. f
Samples used in the songs can be very recognisable and songs using
even the original hooks with modified lyrics (Sanjek 1994: 349). An
example of this could be much of the music produced by Sean Combs
(also known as Puff Daddy or P. Diddy). Best known as practiced by
the group Public Enemy on their earlier records, sampling can also be
a sound collage where different, often very small elements, are put
together to create a sound from which the original samples are
difficult to tell apart without a vast musical knowledge and a trained
ear. Sampling can also consist of mixing many recognisable songs
ogether and remixing (Sanjek 1994: 349‐50). t
Initially the recording industry allowed the sample usage relatively
freely in the hip‐hop culture. Hank Shocklee, the leading member of
Bomb Squad production team, which produced the early Public
Enemy records, remembers:
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The only time copyright was an issue was if you actually took the entire rhythm of a song, as in looping, which a lot of people are doing today. You're going to take a track, loop the entire thing, and then that becomes the basic track for the song. They just paperclip a backbeat to it. But we were taking a horn hit here, a guitar riff there, we
ere might take a little speech, a kicking snare from somewhelse. It was all bits and pieces.
(McLeod 2004)
It was when record companies started to notice that hip‐hop is able
to create significant money that they started going after the
copyrights in a way that made the sound collages so difficult and
expensive to clear that it practically speaking ended the practice on a
commercial level (McLeod 2004). As one of the key foundations
behind the idea of copyright is encouraging creativity (Davies 2002)
which was already questioned by Haupt (2008: 77) due to the
corporate ownership of many of these rights, it also is questionable
specifically with sampling as one could argue sound collage sampling
to be more of a creative process than just using one obvious sample,
but according to Chuck D, the lawyers do not differentiate between
the craftiness of a collage or blatant sample (McLeod 2004).
Schumacher’s argument (1995: 264) “sampled recordings are not
granted an author‐function the way that supposedly individually
created recordings are”, suggests that maybe it is the very nature of
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being sampled and lacking the originality, that makes it less
important what kind of sampling is creative or is any. Hip‐hop and its
sampling practice does not fit well in the idea of copyright and one
origin of text or single author‐function as Michel Foucault (1977)
explained it. Copyright also traditionally has applied more to lyrics
and melodies than the rhythmic elements which are often more
important in hip‐hop music (Sanjek 1994: 353). The often corporate
ownership of the rights also means that the original creators of the
music that has been the most sampled, the African American
musicians do not own the rights to their compositions as those rights
were underhandedly acquired by the record companies (Haupt 2008:
8). 7
Clearing samples and mixtape culture
Legally speaking songs that use samples must get permission to use
the copyright protected elements. This practice is referred to as
clearing samples and it is a relatively long process taking up to one
month in South Africa (Uyatsaka 2009: 14).
In the process of clearing the sample the owner of the rights for the
song and the recording state their terms, and a contract that can
made then determines how the royalties get divided (Sanjek 1994:
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354). The MOBO Award winning artist Kingslee Daley, better known
as Akala says that clearing as a concept is not problematic but on a
practical level the process could be simplified for everyone’s benefit
(interview with Akala 2009). In South Africa the CEO of Pioneer Unit
label and a producer Damian Stephens says:
I have never even tried [to clear samples]. It just seems like too big a hassle considering how few units we sell. Our philosophy is that if anything starts to sell in big enough numbers to warrant it, we'll contact the owner of the sample and let them know that we used their music, and can we work something out… …If a rights‐owner wants to sue us… …rather than come to the table and see what we can do together, that's an occupational hazard and risk we accept up front.
(interview with Damian Stephens 2009)
This raises questions of the reasons behind the copyright laws
regulating sampling and should they be revisited based on the
economical impact of the sample used to the song. Most practitioners
of hip‐hop are not making money in any significant way, and
therefore regardless of what the law says continue expressing
themselves creatively as they wish. While the mainstream of rap has
been taken over by corporations, it appears that the rebelliousness of
the counter culture lives somewhere deeper within the hip‐hop.
Another example of ignoring the copyright laws, even by more
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established artists who gain financially from the music business is
he mixtape culture. t
Releasing mixtapes before albums is a relatively common practice
amongst hip‐hop artists. They are generally seen rather as a
marketing tool for the commercial release than a direct profit making
venture themselves. Mixtapes are mainly sold on the streets and
concerts or in a small scale in record shops. With Internet they can
also be made available as downloads which at times are free. The
mixtapes as they are released by the lyricists and rappers (not DJ:s or
producers) are highlighting their lyrical skills and therefore the
musical backgrounds often are taken from other artists without
clearing them. This practice goes quite clearly against the copyright
laws, but Akala explains that
… there's been an unwritten rule that it's ok to jump on other people's tracks and freestyle without clearing them provided that on a commercial level it really is a mixtape that is sold on the streets and not something that is sold in record stores or commercially exploited in any meaningful way. Originally record companies… …wanted to enforce their copyright but they quickly realized that these mixtapes had an underground credibility that helped their artists get exposure and often reignited interest in the original tracks and that if everyone sort of agreed to let
efit. this slide then every company's artists could ben
(Interview with Kingslee Daley aka Akala 2009)
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The problem with unwritten rules is, of course, that someone, for
instance from a record company could quite easily sue as there is no
official agreements in place and a rule such as this, even from the
industry point of view could use being written down to allow the
grassroots practitioners and the youth of hip‐hop to train their skills
without being demonised as one day they may be the cash cows of
the recording industry. As things stand, the industry does not appear
to have anything to lose in the situation based on the practices of
people already being as they are.
Conclusion
A hip‐hop sample can be seen as a text or a commodity depending on
one’s perspective and placement in the culture and/or industry. The
commodity, the economic driven interpretation tends to win on the
legal platform (McLeod 2004), but as hip‐hop is not just the songs on
charts and radio, the common practices of many of the practitioners
around the world do not respect the copyright laws. These
practitioners often do not make any significant income out of their
craft and therefore the occasional fury of the copyright owners
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seems, if not unjustified, at least a bit exaggerated. Creative process
nd global cultural practices are not very easy to regulate. a
Hip‐hop has its roots on DJ culture and therefore using other songs as
a part of it seems natural. This kind of building on others work
resonates Foucault’s (1977) idea of authorship that does not have to
e tied into single author‐function. b
The process of clearing samples is described as a difficult one and it
potentially discourages people with lower sales to follow the
procedure even if they would not have anything against the clearing
as a concept. The copyright law in this regard is difficult to follow and
leaves many practitioners of hip‐hop under a threat of a law sue from
the corporate music industry. The polarisation of culture and
industry does a disservice to both.
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Maxwell. Foucault, M. (1977) Language, CounterMemory, Practice: Selected ssays (Trans. Donald F. Bouchard and Sherry Simon). Donald EBouchard (ed.). Oxford: Basil Blackwell. rith, S. (1987) “Copyright and the music business”. Popular Music F7(I): 57‐75. aupt, A. (2008) Stealing Empire: P2P, intellectual property and hip
ape Town: HSRC Press. Hhop subversion. C Lessig, L. (2004) Free Culture: how big media uses technology and law o lock down culture and control creativity. New York: The Penguin tPress. McLeod, K. (2004) “How Copyright Law Changed Hip Hop: An
ublic Enemy’s Chuck D and Hank Shocklee”. Stay Interview with PFree! 20. nternet Source:
enemy.html Ihttp://www.stayfreemagazine.org/archives/20/public_ Sanjek, D. On the Author Effect: Recovering Collectivity. The Construction of Authorship: Textual Appropriation in Law and iterature. Martha Woodmansee and Peter Jaszi (eds.). Duke niversity Press: Durham and London, 1994. LU chloss, J.G. (2004) Making Beats: The Art of SampleBased HipHop. SWesleyan University Press: Middletown. Schumacher, T.G. (1995) “This Is A Sampling Sport’: Digital Sampling, ap Music and the Law in Cultural Production”. Media, Culture and RSociety 17.2 (April 1995): 253‐273.
yatsaka, M. (2009) “How to clear a sample”. Hype Feb/Mar 2009. U