Copyright/sampling-R
mannybolone
Los Angeles, CA 15,025 Posts
Pretty decent On the Media segment on sampling and copyright and why Girl Talk hasn't been sued (yet)
http://www.onthemedia.org/episodes/2010/03/12/segments/151509
http://www.onthemedia.org/episodes/2010/03/12/segments/151509
Comments
A Canadian doc a couple of years ago was done around GT and the concept of copyright called RiP: A Remix Manifesto and you can watch it for free.
I'm not sure why the industry would be scared. Coypright infringement law re: sound recordings is pretty much settled. He's clearly creating derivitive work (infringing) and re-producing w/o permission (or is he?) I think (this is a long shot) that the holders of (most) of the copyrights he uses are happy for the press and the exposure to a newer, younger crowd.
For a while during the 00s, I was the sample clearance guy for the UK office of two major music publishers and I did some of the clearances on a number of very big records. Amongst them was a big international hit ??? you probably all know the song; it's been discussed extensively on this board in the past* ??? and it featured a very big sample use. Before the clearance procedure began, there were a few brainstorming sessions involving me, my bosses, people at the label and lawyers and management representing the artist, who was also our writer, concerning any possible issues that might arise over what their/our client wanted to use on the album. There were about seven or eight tracks that featured some sort of sample use. On this particular song, they'd already decided to replay the main sample, which meant we only had to clear the publishing rights, and I didn't anticipate any issue over that.
However, in the same song there was another use - again, a replay/interpolation (delete where applicable) ??? which was more problematic. It involved a song where there was a bunch of different remixes with significantly different ownership details. Usually, the publishing shares on a remix will be the same as the original version of a song, unless the remix contains a different sample use or some other major alteration, which was the case here ??? there were different versions featuring different samples, and at least a half-dozen different publishers involved across all those versions. Strictly speaking, I needed to clear it with each of them - if I didn't, there was a real possibility that some or all of them would have come after our writer and us for infringement if the song became a hit, which it did.
In this instance, I brought in a musicologist and, between us, we persuaded the client that it would be simpler if they further reworked the use to a point where its function within the song wouldn't be changed to an unacceptable degree creatively, but nor would it be close enough to the original to constitute an infringement. If we'd left it as was, the necessary clearance process would have been immensely complex and time-consuming. Each publisher and its respective writer(s) would need to approve the use and collectively agree upon an appropriate and proportionate share of the publishing for the new song. As well as the issue of the clearance itself, I had to consider things like production/artwork deadlines. Imagine if the album and booklet had been manufactured and printed before the final approvals had been obtained and the final sample credits submitted, but the sample owner said no. Release dates get pushed back, product has to be destroyed, etc. This happened to me once when a particular sample use was denied, and a major rap artist had the first run of his CD pulped because it had already been mastered and manufactured featuring the uncleared version, despite the label having been told by me and our US office that they mightn't get approval.
Then there's the new artist - our writer - to think about. In the music industry, advances are usually based upon something called ???minimum commitment??? which, in the case of a publishing contract, means the writer has written a minimum percentage of an album. If they fall short of that commitment, bang goes the next part of their advance, so people like me would be under pressure not just to clear the samples, but to make sure our writer retains enough publishing for each song on the album to meet their commitment and get their cheque.
Now, imagine having to do this kind of thing for an album featuring samples of 300 songs involving, for argument's sake, around 300 different writers, publishers, labels, rights owners, contracts and sets of prior approval clauses. Suppose some of these songs already contain samples, and there are instances where those samples haven't been cleared. I know of one case where a major act sampled something co-written by a leading hip-hop producer on an album they put out years ago. This producer has still yet to formally approve the use, or even respond to requests for approval, presumably because there's something in the song he didn't clear at the time and signing off on it would make him liable. If there are songs like that amongst these 300 sample uses, how easy do you think it's going to be to get clearance on them? Are you getting an idea of the sheer scale and complexity of such an enterprise yet?
Then there's the matter of ownership and royalties. How do you settle upon the appropriate publishing and master shares for each of the tracks on that Girl Talk album? What do you base it upon? How do you license it? How do you collect the income? How much actual income is there? Who takes responsibility for the clearances? After all, nobody is ever going to give Greg Gillis a publishing deal because he's not a songwriter, so he can't ask his publisher to do it. He self-releases, so there's no L&B department at the label to do it either. So he pays a lawyer, or he retains an independent clearance agent like Deborah Mannis-Gardner. This costs money, but he won't have any publishing income to pay for it, and the master clearances will eat any recording royalties. And I haven't even mentioned having to deal with artists and writers who simply do not approve sample requests, such as Prince. Like I said at the top, the resources needed to go after Girl Talk would be wildly out of proportion to what there is to be gained from it. Even if he wasn't giving his shit away in the first place, the royalties payable on all those individual uses wouldn't be enough to justify all the work.
Furthermore, the talk about ???sample martyrs??? is romanticised freetard bullshit, as is the implication that The Industry is a vast, faceless monolith, moving in lockstep in accordance with a pre-determined set of values. If the music industry were to act collectively ??? and it'd be a first - they could clean Greg Gillis' clock. The UK music industry very nearly did just that with jungle/d&b pioneers Shut Up And Dance in the early 90s, and if it's ???sample martyrs??? you're after, look no further. At their peak, when the least successful SUAD releases were doing at least 30,000 copies, PJ and Smiley threw down the gauntlet with some outrageous, blatant sampling which had a load of major publishers and labels up in arms, and they effectively said to the industry, ???come and have a go if you think you're hard enough???. They nearly got wiped out, and the resultant court case led to a sea change in the way UK music publishers approached sampling, and led to MCPS becoming the first collection society to create a dedicated sample clearance department, which is where I worked before I went over to the publisher's side.
Anyway, the tl; dr version ??? it's just not worth suing Girl Talk. If it was, he'd be fucked. Belee dat.
* - It's not Crazy.
agreed. if he didn't give the downloads away for free it would be a different story, especially if he was selling hundreds of thousands of records, which seems likely given his popularity.
i've been amazed that the crooklyn clan guys have seemingly gotten away with making millions of dollars on selling music that is 100% protected by copyrights. i always questioned whether those AV8 records had sample clearance (i doubt it), but the website, which was extremely popular when mashups were more relevant, certainly does not.
Xtina?
wow great post
Hahahaha! No, not that either, although I can see why you might think that. The US office got saddled with that one. There was something else on that record that I was involved with, and it was a much more straightforward clearance. But the one you're referring to turned into a total clusterfuck IIRC.
Since attorney's fees would be part of the judgement, lack of resources isn't a factor in the equation of whether to sue or not. Furthermore, how many of the artists themselves own the CR on their work? Hard to say. I'm sure some are owned by publishing houses or record companies that DO have the resources to sue (even though, IMO, that shouldn't be a barrier).
As to the ability to calculate damages, that's easy. Federal law has a figure on the books for each instance of infringement that occurs. Since it's willful infringement, the plaintiff is entitled to treble (3x) damages plus attorney's fees. You don't need to determine lost profits/sales, just how many times Girl Talk infringed. I would start with how many albums were downloaded.
-edit- 17usc 504c (although treble damages are mentioned elsewhere in Title 17, 504c discusses statutory damages, which are pretty significant.)
IMO, Girl Talk is a dead man walking, and the owners of the CRs are getting their ducks in a row.
Thanks for your post!
I'm sure out of the hundreds of people he's sampled, there is one artist who would like to sue him just for the sake of it. Not even on the getting paid tip. Just to assert control over their works.
Personally, I'm not down with using major portions of works without the owner of those works getting paid or using without permission, but IMO 5 sec sample and under should be fair use.
http://www.soulfulplanet.com/forum/forum_posts.asp?TID=3045
For anyone posting re-edits and dj mixes. :walk_away_son:
This is probably a stupid question, but do people use that service for anything else?
" They nearly got wiped out, and the resultant court case led to a sea change in the way UK music publishers approached sampling"
Well when he first started putting out the mixes (I wanna say it could've been like 5 years ago but maybe more recent) CDs were still selling and that is the format I was seeing/hearing them on. Not that the numbers were probably huge but my local store was having a hard time keeping them in stock.
I have an import AV8 single w/major label logos on it, I've kind of assumed they were somehow in cahoots ever since.
I think they're tolerated because they're basically promo for the labels' releases.
i already got hit with one of these emails from them. ridiculous. they tried to tell me my whole dj mix was a jamiroquai song, which was the first cut i used in the mix.
SUAD were releasing records that sampled a lot of major acts - Prince, Kate Bush, Eurythmics, Duran Duran, and so on. None of the samples were cleared, and when things like SUAD's Lamborghini made the UK Top 40 in 1990, record companies and publishers began to get angry that there was this little indie label in Stoke Newington that was selling lots of records which flagrantly infringed their copyrights whilst flipping the bird to the industry, and there didn't seem to be anything they could do about it.
The straw that broke the camel's back was when they sampled Marc Cohn's Walking In Memphis in a song (arguably the worst, cheesiest thing they ever did) and hit number 2 in the pop charts with it. Cohn heard about the song and went nuts. He ordered his label and publisher to take legal action, and that led to everyone else who had a beef with SUAD following suit. They'd pissed off a lot of people, so there was no way it was going to end well, and the subsequent court cases bankrupted them.
What happened in the wake of that was that the MCPS, the mechanical rights society in the UK, set up a sample clearance department. Its main role was to enable smoother licensing of products that featured samples, but because this was the tail end of the Wild West era for samples, it was able to set the agenda in a lot of ways - from making sure song registations for songs with samples were properly flagged and remained technically unlicensed until publishers had submitted final shares (with royalties sitting in escrow in the meantime) to acting as an advisory service for artists and labels (especially indies) who needed to know how to go about clearing samples, and who to clear them with, through to putting on workshops and events with the objective of demystifying the whole process - where people on the creative side could meet people on the industry side and get questions answered or myths debunked.
The most important thing it did was to help convince music publishers over here, many of whom still had a Tin Pan Alley approach to copyright, to take a more formalised approach to sampling. It was now an established part of the creative process and they'd have to re-examine how they dealt with it. I remember a senior figure at one publisher saying to me, "I wish we could just ban sampling", but for the most part, people were open to what we were trying to do, such as acting as impartial arbitrators during sample disputes, tracking negotiation processes, holding income in escrow, and doing as much as we could to make sure an uncleared sample didn't automatically mean a costly court case for everyone involved.
When I say "we", that's because I worked there for the best part of four years between 1995 and the end of 1999 (with a brief, unsuccessful sojourn as an a&r for an indie publisher), and it was one of the most fulfilling periods of my working life, during which I learnt an incredible amount about the way the industry worked and made a lot of good friends. There was a widely-held myth that we were "the sample police", but that was bullshit. Certain publishers wanted us to be the sample police, and believe me, we could have been - years of working with that database gave me a very interesting insight into what had been cleared and what hadn't. But the terms of MCPS membership meant that we had to remain strictly impartial and couldn't give one member an advantage over the other, so we never snitched on anyone. I remember there was an outfit who called themselves the Lab Rats, who used to call us up on the sneak tip for a while, on the pretence of finding out the proper copyright details for certain songs. But we later found out that what they were doing was going to the publishers of these songs and telling them that, for a fee, they'd give them the names of all the songs that sampled their song. This blew up in their faces because the publishers told them to fuck off, but we had to be a bit more careful about what info we gave out - people wanting publisher details for everything on the UBBs got the bozack after that. This was pre-Sample FAQ, btw. The day the link to the Sample FAQ arrived in the office was an interesting one...
Anyway, in tried-and-true "politics as usual" fashion, a lot of the more forward-looking people over there (including our biggest champions) were forced out of the company following changes in the boardroom. Some of the new faces thought we had too much autonomy and set about reining us in, and by the time I finally left, all the o.g's had gone, but we had a good run at trying to change the industry. I don't know if it still operates the same way, and there's only one person I know from back then who still works there. I need to holla at her and find out if she ever kept copies of any of the batshit crazy ALL CAPS letters we used to get from Herman Kelly. There were about half a dozen of them. You think the "Purdie and the Beatles" stories test the limits of plausibility? At least Purdie's never claimed he wrote the damn songs...
This is incorrect. There are statutory penalties that are easy to calculate, and aren't peanuts.