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Good Copy, Bad Copy

Covers, Sampling and Copyright


• Steve Collins
• Respond to this Article

• Volume 8
• Issue 3
• Jul. 2005

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:

4 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:

10 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.

References
• American Hit Network. “Bittersweet Symphony – The Verve.” Undated. 17 April
2005
<http://www.americanhitnetwork.com/1990/fsongs.cfm?id=8&view=detail&rank=1>.
• Beaujon, A. “It’s Not The Beat, It’s the Mocean.’ CMJ New Music Monthly, April
1999.
• EMI. “EMI and Orange Announce New Music Deal.” Immediate Future: PR &
Communications, 6 January 2005. 17 April 2005
<http://www.immediatefuture.co.uk/359>.
• H. R. Rep. No. 2222. 60th Cong., 2nd Sess. 7. 1909.
• H. R. Rep. No. 609. 100th Cong., 2nd Sess. 23. 1988.
• MacMinute. “NIN Offers New Single in GarageBand Format.” 15 April 2005. 16
April 2005 <http://www.macminute.com/2005/04/15/nin/>.
• McLeod, K. “How Copyright Law Changed Hip Hop: An Interview with Public
Enemy’s Chuck D and Hank Shocklee.” Stay Free 2002, 23 June 2004
<http://www.stayfreemagazine.org/archives/20/public_enemy.html>.
• McLeod, K. Freedom of Expression: Overzealous Copyright Bozos and Other
Enemies of Creativity. United States: Doubleday Books, 2005.
• Negativland. “Discography.” Undated. 18 April 2005
<http://www.negativland.com/negdisco.html>.
• Negativland (ed.). Fair Use: The Story of the Letter U and the Numeral 2. Concord:
Seeland, 2005.
• Netanel, N. W. “Copyright and a Democratic Civil Society.” 106 Yale L. J. 283.
1996.
• Patterson, L.R., and S. Lindberg. The Nature of Copyright: A Law of Users’ Rights.
Georgia: U of Georgia P, 1991.
• Petridis, A. “Pop Will Eat Itself.” The Guardian (UK) 2003. 22 June 2004
<http://www.guardian.co.uk/arts/critic/feature/0,1169,922797,00.html>.
• Prendergast, M. The Ambient Century: From Mahler to Moby – The Evolution of
Sound in the Electronic Age. London: Bloomsbury, 2003.
• Rose, T. Black Noise: Rap Music and Black Culture in Contemporary America.
Middletown: Wesleyan UP, 2004.
• Sen. Rep. No. 1108, 60th Cong., 2nd Sess. 7. 1909.
• Superswell. “Horror Stories.” 17 April 2005
<http://www.superswell.com/samplelaw/horror.html>.
• Waldron, J. “From Authors to Copiers: Individual Rights and Social Values in
Intellectual Property.” 68 Chicago-Kent Law Review 842, 1998.

Endnotes
1
Harper & Row, Publishers, Inc. v. Nation Enterprises 471 U.S. 539, 558 (1985).
2
From personal correspondence with Curve dated 16 September 2004.

Citation reference for this article


MLA Style

• Collins, Steve. "Good Copy, Bad Copy: Covers, Sampling and Copyright." M/C
Journal 8.3 (2005). 09 Jun. 2009 <http://journal.media-culture.org.au/0507/02-
collins.php>.

APA Style

• Collins, S. (Jul. 2005) "Good Copy, Bad Copy: Covers, Sampling and Copyright,"
M/C Journal, 8(3). Retrieved 09 Jun. 2009 from <http://journal.media-
culture.org.au/0507/02-collins.php>.


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