Creative License: how the hell did sampling get so screwed up and what the hell do we do about it?

Kembrew McLeod and Peter DiCola's Creative License: The Law and Culture of Digital Sampling is a fantastic and deep look at the business, art, culture, ethics, history and future of musical sampling. The authors -- respected academics/writers/filmmakers -- undertook to interview a really amazingly wide spectrum of people involved in music production, and what emerges is a clear picture of how legal rulings, historical accidents, musical history, good intentions, naked greed, and conflicts of all kind came to produce our current, very broken system for musical sampling.

The interview subjects in Creative License include all manner of business people (managers, industry lawyers, execs, lobbyists, producers), musicians who want to sample but can't legally do so, musicians who got away with it before the law caught up with them, musicians who benefit from sampling licenses, musicians who've lost big due to licensing fees and lawsuits, musicians who think that sampling is a legitimate form of creativity, musicians who think it's a lazy way of making art; musicians who think that they should have the power to decide who might sample them and musicians who think that's absurd. They also talk to musicologists, lawyers (academic and commercial), economists, and so on -- producing a remarkable, in-the-round picture of the state of things as they stand.

A few clear truths emerge. When sampling works, it produces works that lots of musicians and fans love -- art that is both critically and commercially successful. The early days of sampling -- when the law wasn't very developed and no one was sure what was and wasn't legal -- yielded extraordinary albums that can't be produced legally today (the authors make a pretty compelling case that an artist would have to be insane to produce a song with more than one or two samples in it). When the market for commercial sample licensing is working -- when it's not being hijacked by lawyers and labels -- it can produce real commercial benefit for poor artists and their descendants, and these are often Black artists who got screwed by their labels when their music was originally recorded. Finally, all music is and always has been derivative, and there's no special creativity or lack thereof inherent to using or not using samples.

How screwed up are things? The best example of this is a back-of-the-envelope calculation of the cost to clear the samples on two of the best-loved, uncleared albums of all times: the Beastie Boys' Paul's Boutique and Public Enemy's Fear of a Black Planet, both of which typify the kind of album that couldn't possibly be made today. By the authors' math, Black Planet would lose $6.8 million in sampling fees on 1.5 million sales; Paul's Boutique would lose an eye-popping $19.8M on its sales of 2.5m. (Kembrew and his publisher were kind enough to supply the chapter in question, along with the notes).

The authors conclude Creative License with a fairly depressing look at solutions -- voluntary, technical, legislative, artistic -- to the sampling deadlock. None of these are very convincing, but practically any of them would be preferable to the status quo.

Books about copyright usually focus on either art or law or business, but it's a rare book that manages to equally weight all three considerations -- Creative License gets it right. It's a fascinating and important read.

Creative License: The Law and Culture of Digital Sampling


  1. Not surprised, given that MAFIAA lawyers have managed to claim their client should be payed more then the global GDP for 1 cd worth of MP3s copied over p2p…

  2. Also with software patents, summarised by sroc blog yesterday “when the sum of the parts is way more than the whole”

  3. I shudder to think what PWEI’s “Day/Hour/This” would have cost. There are days when I question whether copyright law is worth having at all…and then I see American Outfitters and realize it’s a necessary evil. Can’t wait to read this book.

  4. Isn’t making music without sampling kind of like making photographs without Photoshop? I.e. sampling lets some artists do certain things more easily, but good music has been made for 1000nds of years without it. Is this really a problem that needs to be fixed?

    1. It seems to me the photoshop analogy is more like the difference between recording to tape or using digital editing/sequencing software for a recording.

      This debate, imho, is more analogous to whether or not the photoshopped work (from which one would like to make money) includes uncleared clip-art or photos. Fonts in this case I guess would be similar to the sounds one finds in synthesizers and sound-modules (which as far as I know are legal to use in commercial works, unless explicitly restricted).

      Everyone can buy a clip-art CD just as musicians and producers can buy sample cds of sounds (essentially buying a license to use those sounds). That’s different than if you’re selling prints of collages you made in photoshop with pictures cut out of magazines or downloaded from someone’s site.

      Though as a producer, musician, DJ, and sound engineer, I agree that there has to be a simpler solution than the status quo.

    1. I remember a studied that showed kids detected/remembered audio cues from commercials. Like the Intel “sound”.

      I wonder if kids/adults could pick out the Amen Break…it’s so everywhere.

  5. Solution is older than time: kill all the lawyers. The only artists who worry about being ripped-off have been manipulated.

    1. Even better would be the “put your money where your mouth is” type of approach.

      A lot of these problems could be dealt with by embracing share-alike. If everyone who wants to sample released their own work to be freely sampled, eventually a library of “safe” audio would grow and the problem would resolve itself.

      This doesn’t do much for works that are already under a restrictive license, but after a point, it might not matter anymore.

    2. “The only artists who worry about being ripped-off have been manipulated.”

      Really? That’s rather simplistic and patronizing. I’m a musician, and I regularly find that my songs are being sold without authorization by Russian MP3 sites. Maybe you can enlighten me as to how I have been “manipulated” into being upset about this.

      FWIW, I agree that sampling should be made cheaper and easier from a legal standpoint. But that’s not to countenance wholesale piracy.

      1. In fairness to fraac, I think it’s pretty clear that the comment is in the context of sampling, and the unthinking conflation of sampling and piracy is precisely the RIAA snow job that got us here in the first place.

        In response to fraac, killing all the lawyers is most decidedly not the answer. If you’re afraid of the army of lawyers the RIAA can afford, imagine the army of, well, soldiers they’d be able to afford if there wasn’t anyone to sue them for wrongful death.

      2. @DSMVWL THS

        Your work being straight up copied and distributed by russian mp3 sites is bad (you get no royalties or payment for your work), but that’s different than people sampling small parts of your work and creating something new. Why is this different? Let’s see 1, it’s a small portion of a song, a positive reference, something built upon 2, You’re deluding yourself if you think all your stuff is original and void of the nuances from the work made by those who have lived before you. Never forget that 3, Samples, not so much to be flattery but more just by happenstance increase interest in the music’s origins. So you’ll get a cross promotion within music to the audience you haven’t reached. And those who know your music and recognize the sample, probably nod in satisfaction when it’s percieved.

  6. “the kind of album that couldn’t possibly be made today”

    You mean the kind of album that couldn’t be distributed legally today. As every boingboing reader knows, plenty of people are making music with uncleared samples.

  7. I’m not sure that I have a lot of sympathy for samplers despite their claims that it’s not stealing. What do you think/feel/hear when a rap song has a very recognizable sample of a classic song in it? That reaction is due to the original artist who created a really cool riff…perhaps even the only good thing about the original song is the cool riff. I think it should be up to the original artist to decide who uses their work.

    1. I think you’re forgetting that any such “rap song” that has come out in the last ten years involved the artist being paid for the sample, so A) don’t shed no tears and B) I think it makes a compelling case that forcing payment for samples inspires pretty crappy music: after all, you can probably only afford one sample.

      Also, in the “defense” of hip-hop, I can’t rationally make these one-sample tracks out to be any more aesthetically offensive than the rock/pop trope that preceded it: namely the neverending cavalcade of one-hit wonders whose “hit” was an inferior remake of an older song.

    2. You are oversimplifying sampling massively by means of the scenario you posted. Most obviously, what if the sample of the classic song is not recognizable at all? Just because a current crop of highly commercial music is using samples in lieu of originality does not mean that sampling in general is an artistic cop-out.

      It’s ridiculous to even have this conversation, when in various other forms of art, ‘sampling’ has been acceptable for a long time. It’s not like Warhol came up with the graphic design for Campbell Soup cans.

      Before sampling, elements of songs were reused all the time as well. You speak a lot of riffs, as if this were the only thing that ever gets sampled – try googling for ‘metal chord progressions’, and see if you cannot find tabs and howto guides for the budding metal guitarist within 2 clicks of your original search. Listen to the two albums mentioned in the post above and see if you think that the only artistic value is found in the samples themselves rather than the way in which they were employed.

  8. My understanding is that all of this came to a head when Ministry was just about to publish “Filth Pig”. They basically had to go back to square one, pull all the samples, and basically start from scratch, putting the album out years later. Given how good it wound up being in the end, and how amazing the previous album (“Psalm 69”) sounded, I can’t even imagine what “Filth Pig” might have been. Something close, though, would have to be EBN’s “Telecommunication Breakdown”.

    Not sure what the policy of linking to Amazon, etc. is, but I highly recommend all those albums, particularly the latter, which I feel is something of a lost masterpiece.

  9. It’s no wonder that the newest album out from The Beastie Boys uses far, far fewer samples.

  10. Paul’s Boutique was pure genius of the highest caliber. I don’t understand why they haven’t been able to come close to it in any album since (though they have had some great songs.)

    1. What happened is the Dust Brothers moved on.

      I still like most of the B-Boys’ other stuff, but Paul’s Boutique is certainly a wonderful work of art. It’s simply a shame that it would be prohibitively expensive to make now. Greed takes over.

    1. Absolutely! I’m sick and tired of hacks like Johannes Brahms and Richard Strauss ripping off other people’s work.

    2. IMHO, nobody was “ripped off” in a case like Paul’s Boutique. It stands on its own as original music, as far as I’m concerned.

      Music/art has always just continued to build off of tradition. Would you say Beethoven “ripped off” things from Mozart? What if Bob Dylan had threatened to sue Hendrix for playing versions of his songs live? The fact that we now have the ability to *directly* reference or build off of pre-existing works is because we have recordings now.

      I am a big supporter of sampling and remix culture. It’s how innovation happens a lot of the time. I think people feeling “ripped off” are kind of missing the point of art in general.

    3. How about “musicians” write their own music instead ripping off other people?

      How about I open my reply with the phrase “How about” while being spared any pretense that I’ve trespassed on geekd’s original genius in using those words to begin a rhetorical question?

      To anyone so tempted, I’m certain there’s more important issues for you to contemplate.

      How about, did I manually type my own rendition of the phrase “How about” or did I do no more than repeatedly copy and paste it from geekd’s post?

      Such a distinction is, after all, crucial to your evaluation of my performance as author of this post, and I can’t imagine any other motive you’d have for reading it.

      And observe that the phrase “How about” comprises 16.6% of geekd’s post. If my use of it does not qualify as plagiarism, it remains an order of magnitude greater than the proportion of lyrics that Fdel’s track “Rocksteady” samples from “Get Down” by NAS:

      *sigh* Had but Fdel enlisted an acquaintance to vocalize those few words, we could have idolized his creativity

    4. I agree with his statement.
      Musicians should get back to making music instead of taking everyone’s money…
      Media should be free…you want to make money, sell concessions.
      Don’t pedal your effervescent mediums on us!
      Oh, if only everything were like Night of the Living Dead.

  11. The idea that sampling is a lazy man’s way to make music is itself a lazy idea. DJ Shadow’s first album is all samples (barring one basically a capella verse), and yet I dare you to make something similar; the samples are tweaked and layered and arranged to an even greater extent than the Beastie Boys “Paul’s Boutique.” A bassline from one song, a drum from another, etc. etc., and eventually you have something far removed from any of the original samples. Furthermore, turntablists like DJ Q-bert posses an extraordinary amount of skill; the people who think “scratching” is easy are the ones who have never tried it, it’s every bit as difficult to master as most instruments. Saying someone who samples is not a musician is like saying a photographer is not an artist because they can’t paint.

    Charlie Parker used to drop bits of other copyrighted melodies into his solos, not only was that a great little allusion/joke, but it made you hear the melody in a new way. Why would we want to limit artists this way? You are not only punishing the artist who used the sample, but the entire listening public as well.

    1. “The idea that sampling is a lazy man’s way to make music is itself a lazy idea.”

      A-fucking-men to that.

      If you’re going to call sampling ‘ripping off’, you may as well call playing an instrument ‘ripping off’ the instrument’s creator.

  12. sampling lets some artists do certain things more easily, but good music has been made for 1000nds of years without it.

    Are you unaware that many of the melodies and motifs in classical music are folk or popular songs of their own or previous eras? For example, May Her Blest Example Chase from Henry Purcell’s 1692 Ode on the Birthday of Queen Mary is the traditional Scottish song Cold and Raw. Damn that cultural rip-off artist!

  13. “musicians who want to sample but can’t legally do so”

    Wouldn’t this only be true if the musician was attempting to profit from the samples?

  14. Uhm. Nothing “got” screwed up — it started that way and people proceeded in hopes of ignoring the problems rather than getting it unscrewed first.

    The issue has existed since editing of recordings was possible. Extended remixes generally didn’t run into a problem because they were only using one or two recognizable sources. “Tape music” might splice lots of things together but they were usually recorded for the purpose … and the exceptions were generally weird experimental stuff so there wasn’t any money worth chasing nor any audience publishers cared about. Club stuff, because it was being played in only one club at a time, was also viewed as not being worth going after.

    But that doesn’t mean the copyright/permissions issues didn’t exist.

    Now, one can legitimately ask how a scrap of a recording differs from _performing_ a similar phrase, which has been more accepted. It probably shouldn’t differ. But I believe it does, in that different sets of rights (with different ways of handling them) come into play. And in the past such quotes have been a recognizable reference to the _song_ and have occurred in passing, rather than swiping a hook and making it a core component of the new piece.

    Yes, this all needs to get straightened out into something semi-reasonable. But the current state of affairs really shouldn’t surprise anyone. There is now big money involved, and people are going to try to grab as large a share of that as they can.

    There really is a simple workaround: Don’t swipe the clip; spend the money to work with a few musicians to recreate something similar. You don’t even have to do so until you’re ready to perform/publish; you can use the original clip as a “scratch track” until quite late in the process.

    Yeah, I know, everyone wants to remix the actual recordings, not just the scores and ideas, and keep them right until the recording is out in public. I can’t blame them. But frankly, that’s laziness speaking. If you want to go that way, expect to pay for the privilege; negotiate rights as needed, or work IN ADVANCE to nail down something. Remember, even if mechanical rights *were* applicable to isolated phrases, they only let you create a cover version — so if mechanicals existed for isolated phrases you’d still have to have those re-performed.

    Could the situation be better? Sure. Is it going to get there? Not as long as everyone on both sides continues to insist that their past practices should define the new norm, and not until the remixers can offer a payment adequate to make folks relax their established rules.

    Meanwhile… Some artists don’t mind being remixed. Some don’t mind if you just make the effort to ASK them. And slowly, an increasing number of artists are retaining more of the rights to their own work, and thus are in a better position to make those decisions without the publisher overriding them. So if someone is serious about sampling rather than simply quoting, there is probably quite enough material — and even quite enough good material — to work with while this all gets resolved. It may not be top-10, but … well, if you’re intent on stealing top-10 licks that’s an implicit recognition that those licks ARE worth more and you have to decide whether you’re willing to pay for ’em.

    Or you can stay noncommercial — which doesn’t give you any protection under the law, but at least makes the rights holders a bit less eager to come after you because your pockets aren’t as deep. I wouldn’t bet against them bring a few “make an example” lawsuits, but some of the early recordings like Plunderphonics got a fair amount of distribution, and it wasn’t only because they deliberately used older source material.

    I understand the frustration. But I think the attempts to defend really have gone far over the top, and lost sight of the fact that the best way to win a fight is to find ways to not get into it in the first place.

  15. (And no, in most cases the parody exception really does not apply to these.)

    ((And no, I Am Not A Lawyer. But I’m an amateur musician who plays in a style which does involve a fair amount of parody and remixing along with original works, and who has thus had some reason to consider these issues. My opinions may be completely wrong, but they’re the best conclusions I’ve been able to reach based on input from folks who *do* know what they’re talking about. Please feel free to disagree, though I would hope folks do so from a vantage of at least *some* knowledge to buttress their opinions.))

  16. Real musicians shouldn’t have to care about paying for the blow/hooker habits of record co. execs; but the American legal system in all it’s fucked-up-ed-ness is never going to risk angering our corporate overlords.

  17. I wonder what happens if the original sample were run through some kind of re-synthesis software. Some aspects of the original sample could be retained, others not. The result would be a similar performance, but certifiably -not- a copy of the original.

    (Might already exist for all I know.)

    1. Please stop thinking like a programmer and start thinking like a lawyer or a judge. Was the purpose of your software to allow you to circumvent the copyright that the artist had over the sample?

      YES? You’re violating their copyright. You intent to circumvent their ownership and produce a derivative work.

      Intent matters, context matters, the law is not machine executable.

  18. Oh, and as far as “sampling is a lazy man’s way to make music is itself a lazy idea”:

    Tell that to Pierre Schaeffer and other founders and experimenters of the whole artsy music concrete movement (e.g. “Symphonie pour un homme seul”, 1950). Tell that to John Cage, who in 1952 (with others) spent a whole year turning 600 samples into a 4.5-minute piece called the “Williams Mix”.

    Lazy man?

  19. Sampling reminds me a lot of musician jam sessions.. where everyone is riffing off of everyone else. With sampling, the musician is jamming with the sample, as if the other musicians were there. Much of the Beastie Boys stuff falls into that category. Ice Cube, etc.. all very artistic use of sampling.

    In some works, sampling is pure manipulation of samples.. remixing, editing. Also an art.

    Jamming and remixing/editing are highly valued and time honored artistic processes.

    It’s funny how the financial world tries to capture life and force it to follow its rules.

    Many of the best things in art and life just don’t follow financial structures of ‘fairness’. Especially evolving stuff. It’s like trying to fit kids playing at recess into a financial model. Some “rule oriented” play fits; kids taking turns on a swing or hopscotch. But kids tackling each other, or throwing snowballs, or just having random fun doesn’t fit rule based models at all.

    Many kids prefer one model or the other (and probably says a lot about the nature of those kids, and where they’ll end up later in life), or some play both ways.

    Seems like live remixing, or live jamming is always going to be at odds with ‘rule based’ play. “That’s not fair, you owe me money” reminds me of “you’re not playing fair” on the playground.. same dynamic of the rambunctious/freeform kids hitting political walls with the rule based players, which seems stiffiling at times.

    It’s a continous struggle for the bean counters to try to create a model out of apparently random behavior. But if there’s a buck in it for them, they’ll just keep trying..! Too bad they don’t pick up an instrument and play something instead. Maybe we all should, or get off the stage ;)

  20. Sampling is just like cooking if i take a recipe and mix it
    up a little bit and make my own dish it shouldnt matter.
    Some of these old artist should be honored that someone
    is using there music to make them relavant again.

  21. I run two small record labels. We’ve had tunes of ours vailable for sale illegally on Russian sites. Our response? Try to make contact so we can give them good quality files to bootleg – our fans deserve the best. This has nothing to do with sampling, however. My take on sampling: if it’s a recognisable chunk of a tune, then get permission and pay a small fee. Small, somethng the old dying music industry doesn’t get. A small label can’t afford thousands of dollars/pounds. Fee could be related to label size or expected sales. Very short snippets, single drum hits, etc – no-one has lost a sale so why need permission at all?
    Actually, my interest is in bits of dialogue from films or documentaries. Once again, if no sales to the original copyright holder are lost, why pay a fee? Or keep it very minimal so that small labels and unsigned musicians can use material same as big labels.

    1. The tricky bit in all that is documenting when there is or not a lost sale.

      And that is why we get these crazy lawsuits where a single mp3 can be argued up to be a 1000+ of (potential) lost sales, thanks to the network it was made available on.

  22. It’s not always the majors suing over samples – things can go the other way although in either case, the less well funded “little guy” generally loses out.

    The demise of the small but influential label 99 Records came from majors sampling without paying. “White Lines (Don’t do it)” was little more than rapping over Liquid Liquid’s “Cavern”. It was also a huge hit and original artist and label didn’t get a thing for creating a work that ultimately was far more influential than the Top 40 hit that took from it. The court case bankrupted the smaller label.

    As ESG said, “Sample credits don’t pay our bills.”

  23. There really isn’t too much that can be said about this seemingly intractable problem. When technology outstrips law, an individual’s creativity is likely to suffer, as we’ve been seeing in the music biz for over three decades now. Song-samples are more than found objects to be used in a DJ/producer’s collage: they are fragments of an artist’s work that deserve more than anonymity (and theft). Really, ANY song put out there for general consumption is fair game for reinterpretation (or ridicule), as this clip shows: . But when it comes to compensation, we need to draw the line. As the man said, “it’s all about getting paid…”

  24. Sampling’s not bad, but when you loop an easily identifiable segment from a recording, it’s like copying and pasting paragraphs from someone’s book and calling it your own. A musician playing something derivative or coping a melody line is different, since a melody line is an idea and a sound recording is tangible (well not so much these days, but you get the idea). Is it ok to take pictures from Flikr add some text and use them in a Nike campaign without compensation? Then it’s not ok to sample the 16 bar hook of my tune, rap over it or put some wobbly bass on it and call it your own. Not without paying me. How much is fair is a whole discussion in itself. Oh, and you don’t get to call it your own. Or maybe I don’t want the music I wrote and recorded used to back your crappy/racist/homophobic what-ever. Don’t I as an artist have any rights to how my music is used??

    Note that big labels get around this “sampling” nonsense by getting musicians to re-record the song (aka cover). It just means the artist (or whoever was the songwriter) gives up a cut (or all) of the songwriting/publishing. Musicians playing the song is different from using the actual sound recording. And I still get paid.

    So in conclusion…as an artist that releases music under the CC and encourages folks to share it…I’m totally not ok with someone cutting pieces out and using them in an identifiable manner to make money with out giving me some. Twisting into something totally different is cool as long as *I* can’t tell what it was.

  25. A short list of artists I NEVER would have listened to if I hadn’t heard their music sampled on other songs; artists whose CD’s or songs I then went out and bought:

    Herbie Hancock
    James Brown
    Sly & the Family Stone
    Billy Brooks
    Donald Byrd
    The Meters

    Seems like a point in favor of sampling, in my book..

  26. Re the cross-promotion idea: Sure, go ahead and present that argument to whoever has the rights. It is THEIR CHOICE to make. Not yours. Sorry, but that’s what copyright is all about.

    There’s a lot in copyright and patent law that needs to be reworked right now, but ignoring it does not make it go away.

  27. I’m curious how much The Avalanches would need to pay for Since I Left You. It would would have to be up there with Paul’s Boutique and Endtroducing in terms of amount of samples.

  28. Um how comes and I know this, its always “certain” People that scream lazy way to make music??

    Paul Boutique is a classic and the reason why the Beasties have not been able to repeat that is the clearance of samples and trying to please the “I don’t like Rap but I like the Beastie Boys” complete BS.

    X-Clan To the East Backwards couldn’t be made today either.

  29. I don’t understand. What about Girl Talk? He creates songs that are comprised entirely of other people’s work. He probably uses 50 samples per song. Is the writer of this book familiar with his work? As far as I know, Girl Talk manages to be extremely successful with sample-saturated music. I think that the table featured in the article loses some clout when we enter Girl Talk into this conversation.

  30. I think there lurks a great, creative idea here to highlight how unreasonable this situation has gotten by being equally absurd. That idea is for an artist to create a Paul’s Boutique album and charge what it cost to clear the samples plus to make a profit. Say the worlds first $10,000 album, because it uses only the finest samples from The Beatles, Led Zeppelin, Dylin, etc. Obviously this would have to be done by a high profile name to get the exposure it needs (for some reason I have a Damien Hirst + Danger Mouse collab in my head), but would easily illustrate the costs at hand to be compliant with the law as it is now. And if the album is awesome, besides just being a stunt, than you know it would be heavily leaked eventually showing that there’s no way to contain this or make the greater society compliant. The industry can’t unring that bell of technological advance.

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