

The shady one-man corporation that's destroying hip-hop (2006) - pje
http://www.slate.com/articles/arts/culturebox/2006/11/jayz_versus_the_sample_troll.html

======
sheetjs
> However, in at least a few cases, Boladian assigned the copyrights to
> Bridgeport by writing a contract and then faking Clinton's signature (as
> described here).

If that is what happened, couldn't Clinton sue Boladian and Bridgeport for
signature forgery? Otherwise, what would stop someone from faking Boladian's
signature on an agreement to transfer ownership to another entity?

~~~
jbigelow76
I wish more would have been written about that aspect too. If "sample trolls"
are as big a nuisance as the article made them out to be it would have made
sense for the labels to bring out the big legal guns.

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S_A_P
This is touched on in the article, but the problem is that the artists dont
benefit from this. It reveals a fundamental problem with the music industry.
The creative people are often taken advantage of and have their royalty rights
stripped from them when they are "young and naive" about the music business.
The top 5-10% of artists usually find a way to renegotiate once they are a
proven profit center, but the artists that do just well enough to keep a deal
and dont have their publishing rights end up bankrupt and screwed should their
work prove to be "classic".

~~~
acjohnson55
I think top 5-10% is a huge overestimate of how many artists ever see a
lucrative contract.

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noonespecial
It seems to be becoming the central theme of the early 21st century. How do we
keep the institutions that are supposedly created for our benefit from doing
the opposite?

~~~
voidz
We don't. We choose alternatives instead.

~~~
beedogs
This is why artists release "mixtapes" all the time for free instead; can't
sue someone who's released their tracks free of charge. I mean, I guess you
could _try_ , but you won't make much doing it.

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rjtavares
It's a shame that albums like "It takes a Nation of Millions..." or "Paul's
Boutique" couldn't be made today. I wonder what amazing albums we could have
got had copyright law taken another route...

~~~
enneff
What do you mean? People are still writing sample-based music.

~~~
rjtavares
Those were particularly sample heavy albums (Paul's boutique samples more than
100 songs), which are impossible to do today unless you're Kanye West or too
underground to matter.

After Biz Markie was sued, sampling changed completely:
[http://en.wikipedia.org/wiki/Grand_Upright_Music,_Ltd._v._Wa...](http://en.wikipedia.org/wiki/Grand_Upright_Music,_Ltd._v._Warner_Bros._Records_Inc).

------
codeddesign
I'm sorry...but are you kidding me? This article is nothing more then some guy
whining about how jay-z of someone else's lyrics. Regardless if it's a patent
troll or not, he didn't own the rights to it and yet still made a fortune. The
music industry spends millions every year prosecuting people in favor of the
musicians...but now when the tables are turned, people start crying about it.

~~~
enneff
You seem to be missing the point.

The point is that sample-based music can (and should) still be an original
work.

This "sample troll" (nothing to do with patents, btw) is unethically stifling
creativity in the music industry. That's bad for everyone.

~~~
shock-value
> The point is that sample-based music can (and should) still be an original
> work.

No it shouldn't. Or at least it should still require consent of the original
sample owners (and any compensation that would entail).

If it were so easy to make samples and they were so disposable that anyone
could come up with them, then there would be no need to sample older work and
no one would do it. But in actual fact it's difficult to create catchy
samples, and they are therefore valuable, and their owners deserve to have
rights over them.

~~~
dalke
Your analysis omits the concept of "transformativeness." See
[http://en.wikipedia.org/wiki/Transformativeness](http://en.wikipedia.org/wiki/Transformativeness)
.

This is why a search engine company can produce a thumbnail of a page without
running afoul of copyright law. (See Kelly v. Arriba Soft Corporation )

It's also how commercial parody can (though not necessarily) be done without a
license from the original author. (See Campbell v. Acuff-Rose Music, Inc.)

It's also why a judge recently decided that Google's book scanning system,
which does not have copyright permission from the owners, is sufficiently
transformative without reducing the primary market that it is legal under fair
use. (See [http://www.wired.com/threatlevel/2013/11/google-
books/](http://www.wired.com/threatlevel/2013/11/google-books/) , which has a
link to the judgement.)

As you say, it is not legal to copy just the sample. But sample-based music
can more transformative than a simple copy, and the combination of factors may
make it fair use.

Unfortunately, there's no laws covering these details and the courts haven't
worked out the details. The highest decision, from the 6th Court, says that de
minimis doesn't apply even for a 3 note sample, but fair use might. (See
Bridgeport Music, Inc. v. Dimension Films .) Many people are against this
interpretation, including perhaps other courts. Other districts have not
decided on this sort of case, so it's still ambiguous.

Not everything which is valuable has government-granted monopoly rights. The
US does not accept "sweat-of-the-brow" as a basis for copyright, which is why
databases cannot be copyright, even if the database itself is valuable. So
your argument "it's difficult .. therefore valuable ... and their owners
deserve to have rights over them" is, currently, un-Constitutional. (See Feist
Publications, Inc., v. Rural Telephone Service Co., for the decision which
decided that the Constitutional definition of copyright is based on
originality, not difficulty.)

~~~
shock-value
First, thank you for the very well thought out and researched comment.

> Your analysis omits the concept of "transformativeness."

You are correct that I am not necessarily considering cases where a sample is
modified extensively before being used. Though I will say that, though that
might make it legal to use without permission, I myself don't necessarily
think that it _should_ be legal even were it changed to an extreme degree.
It's something I'd have to think about further and would surely require a
case-by-case analysis.

That being said, I do think most sampling that I am aware of would not be
transformative. In general -- and maybe this could even be a good theoretical
legal test, though it's not for me to decide -- if I listen to an original
song, and then a newer one which samples the original, and recognize the
sample, then I wouldn't consider it transformative.

> This is why a search engine company can produce a thumbnail of a page
> without running afoul of copyright law.

I don't know the legal implications of this, but that is surely a very
different situation than sampling music. The thumbnail is to give users a
quick preview of what to expect when they click into the page. A reused sample
is doing just that -- being literally reused in the same way it was used
originally except in someone else's work. Surely this disparity of use must
have some legal meaning, as I do feel it surely has moral meaning.

> It's also how commercial parody can (though not necessarily) be done without
> a license from the original author.

Indeed, but again I don't think I necessarily see how that applies to a reused
sample in any case except where the new song actually parodies the original
(which certainly does happen on occasion, with Weird Al being an obvious
example).

> It's also why a judge recently decided that Google's book scanning system,
> which does not have copyright permission from the owners, is sufficiently
> transformative without reducing the primary market that it is legal under
> fair use.

I'd argue that plenty of sampling does indeed reduce the market for the
original. Plenty of people seek out a song because they've heard it somewhere
and now that "catchy tune" is in their heads. The "catchy tune" gives it
economic value, which is being essentially stolen when someone samples without
permission.

The Kanye West / Daft Punk / Edwin Birdsong example that I gave elsewhere in
this thread exemplifies that. I'm sure that plenty of Kanye West fans who
might have bought or otherwise sought out (thinking more of exposure through
ads / radio than piracy here) Daft Punk's original wouldn't bother or need to
since Kanye's version is essentially Daft Punk's with some rap verses thrown
in. That catchy hook is the same in both. EDIT: to be clear, assuming Kanye /
Daft Punk obtained the necessary rights I of course have no problem with these
songs existing.

> Not everything which is valuable has government-granted monopoly rights. The
> US does not accept "sweat-of-the-brow" as a basis for copyright, which is
> why databases cannot be copyright, even if the database itself is valuable.

That is a good point, though I think the combination of a sample being both
copyrightable and valuable is a potent argument to those who would say that a
misappropriation of a sample is just a "small-potatoes" or irrelevant
infraction, legally or ethically. So I suppose I wasn't arguing entirely on
the basis of law with that statement.

~~~
dalke
> It's something I'd have to think about further and would surely require a
> case-by-case analysis.

The courts agree with you completely. The Supreme Court ruling Campbell v.
Acuff-Rose Music says that any such analysis must include four factors: if
it's commercial/non-commercial, the nature of the copied work, the amount
copied, and the effect of the copy on the market for the original work.

Parody requires that the original music be somehow recognizable, so the courts
disagree with your "do I recognize the sample" test.

The "catchy tune" example you gave may be a violation of copyright, or it may
be fair use. For example, if the original song was from the 1970s, with a
current market of 20 iTunes+Amazon+whatever sales per year, and the new song
comes out making 1 million sales, then it's fair to say that the new song did
not greatly affect the primary market. A full analysis would need to cover at
least those three other factors as well.

I don't know anything about the Kanye West / Daft Punk / Edwin Birdsong
example. I follow so little of modern music. I've certainly read more
copyright cases than I've heard songs from all three of those composers
combined.

More classically, consider Ella Fitzgerald's famous and lovely scat version of
the song "How High the Moon", in which she quotes from other popular songs,
including "The Peanut Vendor", "Heat Wave", "A-Tisket, A-Tasket", and "Smoke
Gets in Your Eyes". These are music samples, which include the catchy hook
from those songs, but where I think anyone would agree there was no market
confusion.

I do not know how copyright issues were settled for that recording, nor in
live performances (in jazz improvisation, the artist make things up on the
spot; how then would all the original artists get paid?). However, it was
before Grand Upright Music, Ltd. v. Warner Bros. Records Inc. , which is the
court case that established that samples were under copyright law. During
Fitzgerald's time her use was likely "accepted practice and such copyright
considerations as these were viewed as largely irrelevant." (Quoting
[http://en.wikipedia.org/wiki/Fair_use](http://en.wikipedia.org/wiki/Fair_use)
)

We had a very vibrant music industry before Grand Upright Music v. Warner
Bros, and it allowed genres like scat which incorporated snippets of other
copyrighted material. However, do note that that Fitzgerald wasn't "sampling."
There are different copyrights for the lyrics, the music, and the musicians,
and sampling covers recordings. This is why some hip hop artists use
"interpolation" \- replaying the music but with different instruments, and
only paying the songwriter and not the artist or label. It may sound very
similar, but it's not the same and so not covered by the "sound recording"
definition used in Bridgeport Music, Inc. v. Dimension Films.

I am not so versed in music copyright at software and written works, and
didn't learn about interpolation until just now. When you say "sampling", do
you also mean to include interpolation?

BTW, I see you use the term "stolen." The better term is "infringed."
Copyright is a limited monopoly protection which expires, and so far copyright
violations are part of civil law rather than criminal. While "stolen" has
connotations of property rights and criminal law. Using the concept "stolen"
may lead to incorrect assumptions when some concepts are incorrectly
transferred.

------
jamesbrownuhh
This article is rather spectacularly missing the point. It suggests that it's
the movie equivalent of prosecuting filmmakers for using the standard idea of
an establishing shot, as seen in The Magnificient Seven. That's quite
obviously not the same thing - no-one prevents filmmakers using an idea. But
sampling is the equivalent of a filmmaker using the ACTUAL FOOTAGE from The
Magnificent Seven and putting it in their own movie and selling it as if it
were their own. That is quite obviously not going to fly.

The article suggests that Jay Z raps over a break from a Madonna song and is
then surprised when the bill comes? The reality is that if Madonna released a
track with chunks of a Jay Z record in the background, he'd be the first at
the door wanting to be paid in full.

The fact that record companies want to be paid when their products are sampled
is not remotely new, it has been understood and established since the 1980s.
For anyone, even in the dim and distant dark ages of 2006, to be surprised by
that state of affairs is baffling.

~~~
beedogs
The funny thing is that that Madonna song samples a Public Enemy track for its
beat.

The sample was obtained without consent.

(The lyrics were also stolen from Ingrid Chavez, also without consent. She
sued and won.)

~~~
camus2
The funniest is Madonna stole the beat of "Justify my love" from My Bloody
Valentine,an indie rock band. They sued Madonna and won.

------
taylorlb
Armen Boladian isn't quite just a "former record producer". He founded and ran
Westbound records who put out the majority of George Clinton's music and many
other groups.

------
qq66
Interestingly, the Grammy for Best Rap Album of 2013 went to Macklemore and
Ryan Lewis' "The Heist," which didn't use any samples expressly to avoid legal
issues, but ended up sounding much fresher and original as a result.

~~~
te_chris
I guess, but it seems pretty univerally accepted that Kendrick Lamar's good
kid mAAD city should have won that, so I'm not sure what using the grammys as
a barometer proves.

~~~
qq66
Right, the only point is that The Heist is, commercially and critically, a
very successful album that doesn't have any samples not for artistic but for
legal reasons.

------
aet
This is shady, but artists should get paid if their work is heavily sampled.

~~~
uvTwitch
If by "artists" you mean "people who buy the rights to the work created by
artists for a pittance, and then use it to extort others attempting to create
something worthwhile from it", then sure.

~~~
shock-value
Yes, and it's just as true in that case.

>attempting to create something worthwhile from it

You say that as though the sample itself is not worthwhile or valuable. There
are plenty of modern songs for which the only reason they are popular or sound
good is that they sample older tunes. And it's simply not easy to create a
good-sounding, catchy sample. So whoever owns it deserves to get paid, and
it's no one's fault but the original artist if he or she sold off the rights
to it for a pittance.

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macspoofing
Hi Kettle, meet Pot.

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mynameishere
Whatever. The continued existence of rap, which reached its peak with the
album "Toys in the Attic" is something really mystifying. I _suspect_ it has a
lot to do with the ability of completely untrained, possibly even tone-deaf,
"musicians" making albums whose appeal seems mostly about attitude. It's
obnoxious, it's hyper-masculine, it can't be listened to quietly, etc--and
everyone can do it, if they, personally, have those same attitudes. There's
appeal in that.

So, what? Maybe if sampling was completely illegal, they'd have to start over
by renting a clarinet and playing scales. That's a bad thing?

[http://www.theonion.com/articles/new-rap-song-samples-
billie...](http://www.theonion.com/articles/new-rap-song-samples-billie-jean-
in-its-entirety-a,4389/)

~~~
benched
Ok, this is the most idiotic Internet comment I've ever responded to, but here
goes. Rappers are more akin to poets than musicians, the way you are using the
word _musician_. The musicians in rap are called producers - they make the
backing tracks. The appeal includes: complex technical rhyming, nuanced
delivery ('flow'), vignette painting, storytelling, wordplay including
numerous puns, double-entendre, and punchlines, some backing tracks are
actually epic, or especially funky, i.e. they have merit as music. You
apparently disapprove of the subject matter. Would you level the same
criticism at movies like Scarface, Goodfellas, or The Godfather for the same
reasons?

~~~
stan_rogers
You're arguing that the poetry is legitimate. Fine. Let it stand on its own.
If it needs music to make it work, then make the music as well. If it needs
somebody else's hit music to make it work, then maybe -- just maybe -- it
can't quite stand on its own. That's not questioning the merit of the genre,
but the merit of individual pieces.

~~~
chasing
You're making a common fallacy when talking about artistic genres... "Bad rap
exists, therefore rap is bad." I probably don't need to explain why this is
misguided.

Also: Rap is not poetry. It borrows elements from poetry, but it also borrows
elements from public speaking, sports, preaching, and good old-fashioned
conversation. Amongst other stuff. It's a different thing. It's its own thing!
Rap!

Why am I having to explain this to people on Hacker News?

