The following panel discussion took place as part of “The Comedies of Fair U$e,” a conference on copyright and intellectual property held from April 28–30 at NYU. The event was organized by NYU Journalism Professor Rob Boynton, in conjunction with the New York Institute for the Humanities at NYU, which is under the direction of Lawrence Weschler.
Kembrew McLeod, a documentary filmmaker and scholar of intellectual property law, moderated the panel. The panelists were Lawrence Ferrara, Chair of the Department of Music and Performing Arts at NYU and a specialist in copyright law; Claudia Gonson, drummer and manager for the pop group The Magnetic Fields; Hank Shocklee, legendary producer of Public Enemy; and Paul Miller, a.k.a. DJ Spooky, whose book Rhythm Science was published last year by MIT Press.
Ferrara: One of the things that interests me a great deal on fair use is that I do a great deal of consulting for all the major record companies, and many of the independent companies and the publishers and the motion picture companies. I look at this from both ends because I work with both plaintiffs and defendants, but I am concerned at the exposure of frivolous suits. It is the problem of the small person, the person who doesn’t have a lot of equity or power, crushed by major corporations; in fact, in many cases, it is a frivolous lawsuit, one after one after another that is causing harm to the overall creative process and to the artist.
I want to give a couple of examples of some of the kinds of cases that are highly frivolous: in 2005 I was involved probably in about five issues from federal court in Washington state to southern district in Florida, Miami to Boston the first circuit and here, right here, the southern district of New York. In each of these four or five instances, the defendants whom I was working with won motions for summary judgment. But in so winning, they probably spent a quarter of a million dollars or more to show that the claim was frivolous. A few examples I will wrap together: one was for the rapper Fabolous, not fabulous but Fabolous. It was a hit song of his called “Young’N” and in parentheses “holla back.” Now, another artist wrote a song “holla back” and there is no concrete evidence that Fabolous had ever heard the plaintiffs work, yet there was the suggestion that he may have. Even if there was, and even if in fact, in this case, Fabolous copied what was reported to have been copied, it would have been a legal copy because the only similarity, and this was also the case in a Memphis Bleak case in the southern district of Florida where we also won a motion for summary judgment, all that was similar was “holla back.” That’s it. “Holla back” repeated in the chorus section and the fact that it was in that rhythm, “Holla back,” daaaa daaa da (sounds the tune out). One of the most common rhythm motives in all of history—in fact one of Bach’s favorites. So what we basically said to the court “this is frivolous” and the court accepted it, albeit at least a quarter of a million dollars later.
Now the undisputed facts in this instance are: the issue is the setting of a common, I mean really common, stock phrase for which we found 50, 60 songs that had the same title for which literally had countless uses out in literature, newspapers and such so it was a stock phrase. And it was set to a melody, not to an identical melody—melodies are constituted of pitch and rhythm—but just the pitch was the same, and only part of the pitch. Now there were eight pitches in the plaintiff’s song and the only part that was similar was the “da dee da dee da dee.” Those are on the scale degrees three five; you know the scale “do re me fa so la ti…” that’s scale degree one-two-three-four-five-six-seven. So just to scale degrees, three-five-three-five—six of those are common, the last note in the plaintiff’s song is different, the first two notes in defendant’s song are different—that’s all. These are undisputed, there’s no harmonic, no structural base, this is it. So in court yesterday I said, “Think of this song, ‘It’s fun to stay at that YMCA…’” It’s the same; it’s at the beginning of a chorus. Or, “Someday I wish upon a star…” I actually have some lyrics, of course I can’t remember it…oh yes, “nothing could be finer than being in North Carolina…” and at that point the judge started laughing. This oscillation of three-five-three-five is so generic as to make someone wonder as to what could possibly be in the mind of the plaintiffs here. But plaintiffs, recognizing full well that large companies and independent companies— rather than spend a quarter of a million dollars or more just to get to a summary judgment, or go to trial which would cost a quarter of a million or more—prefer to just write a check for $15,000 or $25,000. Then the company or the artist becomes a mark and then you are right back to where you started. So it’s not just that the big companies and the big artists are essentially in control and have all the power, but in fact they are also targets and in fact the artist, a very well known artist and composer in this particular issue, said that in deposition that “why are they coming after you?” “Well, because I am a target, because I obviously have the deep pockets.”
McLeod: Claudia, could you talk a little about that and the importance of being paid for the creative work that Steven Merit and you all do?
Gonson: Actually, I thought I would tell a funny story because it’s always good to tell a funny story. About ten years ago a former 80s pop singer who, now it was the 90s, decided to cover a song of Steven’s and I manage him so I am always involved with the copyright and the clearances, pretty much what I do all day long. England, I don’t know, I would be curious to know about everybody else’s thoughts on this as well, Europe—it’s just different. It’s really different there, they just don’t care. So we got contacted by a really famous DJ in England who said, “We’re going to cover your song, this girl is going to do a great version of it.” The song is called “Hopeless” and the words were, “There is no use even trying, it’s hopeless. All our dreams are dying of overdoses. All of our plans are lying in ten car road wrecks.” Anyway, the point was it was a very down song, a very hopeless song. She came back six months later fully recorded and ready for release and she had hired a group of pert young girls to sing, you know, “you can make it, it’s ok…” she had rewritten the words so it was really hopeful (laughs). She kept the chorus, “there’s no use even trying, it’s hopeless…” but the chorus was like, “keep with it, you know you are going to be fine and it’s going to be ok,” and all the girls were going, “don’t give up.”
But I don’t have ethical issues with people freely taking our music from the internet or digital downloading sites. The stuff that interests me is it seems to me that there is an interesting ethical thing going on. I don’t have a problem with Magnetic Fields music appearing in a Honda commercial if that’s how I am going to make money if I can’t sell records anymore because people would like to download that music for free. Sometimes I feel that I get caught coming and going on this one because people say, “Well that’s disgusting that you would sell your song to that ad,” and I don’t really have a problem with that anymore because I don’t really care how we make our money. If the Magnetic Fields could start our own “free download” and you could download all our records for free than that’s fine but I really need to know how we are going to make money. I intend, in fact, to spend a lot of my life doing sync licenses—where you put your music through for ads or films and television as a way to make money. My understanding right now is that bands have a lot of different ways of presenting music. With bands, your income from royalties is really very little of your stream of income now days. The ways that bands are making money is through live performances, through merchandising, through packaging—like if you want to make an album with a little hologram on front you are probably going to make a little more money selling records and also through sync licenses.
McLeod: When Hank and Public Enemy made records in the late 1980s, they took advantage of this emerging technology, digital sampling technology, at a time when hip hop did not have the commercial stature that it has today. And so, they were largely allowed to operate under the radar. Public Enemy’s Nation of Millions to Hold Us Back and Fear of a Black Planet are two records that are recognized as not just hip hop classics but as classics of music. In fact, Fear of a Black Planet was admitted into the Library of Congress’ sound recording registry—each year they put in 50 sound recordings of historical importance, like Neil Armstrong landing on the moon or a work by Dizzy Gillespie. It crosses not just music but into news and other historical events. To put this into context, these are hugely important albums that essentially couldn’t be made today. Were you worried about getting sued for sampling in those records?
Shocklee: Well, first of all, you have to understand that back in 1983 the only kind of provision we had against copyright infringement was actually rerecording someone’s piece. You had to take eight bars of it and if you took eight bars and looped it ala Sugarhill Gang, you could be in trouble. When they first started they took Good Times and they looped it for eight bars, and that record was up for injunctions and all kinds of different things. The other thing you couldn’t do was take a whole song and record that particular song and put it out. If you understand, in a lot of break beat records that we get, what these guys do is find these old 45s—and what they do is they rerecord the entire 45 onto an LP and they put a collection of those songs together and the resell that record in the marketplace to DJs who re-buy these albums. Now that was an infringement because you are taking an entire recording and you are rerecording this record and you are re-releasing this record as the recording itself. So I understand all that so when I went into the studios what I wanted to do was say, “Well ok, I am not going to take eight bars of it and I am not going to record an entire track of a record so what I am going to do is I am going to take what I consider to be a little snippet.” I would take a little horn hit or I would take even a high hat, you know there was inside the record. We would take like a tambourine and then loop the tambourine going so we could create just the sound we wanted from a tambourine that may have come from a Motown record. Well it’s a tambourine, I am looking for a base sound just a little bmmmmp, and then take that little bmmmmp and then work with those frequencies and create a bass line off of that.
So there were things we have done as far a sampling goes that was kind of what I would consider to be underneath the radar. The record companies and everybody in the industry had no way of understanding what it was that we were doing and how we made the sounds. Most of the artists that we have sampled from listened to our records and had no idea that we were even using anything from their records until, all of a sudden for some strange reason everybody has gotten a little bit smart in this game. And then all of a sudden you started getting calls from cats that heard their vocal on a record and then they would say, “Well ok, we want you to pay us for the sampling.” You know, I’m not here to determine if sampling is legal or illegal. My question is, and I understand from a musician’s standpoint, I think everybody should get paid for it—if you sample one note, then you should get paid for it. My question is determining the threshold that allows for that to go on. For example, after we started getting hit with sample claims, I would say, “they weren’t suits at the time, they were just sample claims.” And what we would do, we would go in and forge a deal with the particular publishing company, the artist, or whoever held the copyright. Now keep in mind that that is a jungle in itself because first of all you have to figure out who actually owns the publishing. I made a deal with George Clinton. He said, “yah man, you can use, you can sample my song,” and then I got hit with a lawsuit from Bridgeport Music.
McLeod: By the way, George Clinton lost the copyright to a significant chunk of his recorded work, which is how he ended up getting sued for sampling his own work.
Miller: One thing I find fascinating with Hank’s style is back in that time period, you have to remember, a sampler was an Akai s3000, and it was a big deal for that 32 megabytes of memory. For me, let’s see, I have my key chain here…this is a gigabyte, and the samplers used be about the size of maybe this desk here. To be able to manipulate the digital information in a 32 file back then would have taken sheer volume space, and if you go back in time to say the earliest computers that were used to make music—say the RCA Mark II after WWII, which is up at Columbia University, that’s a computer the size of this whole room that could just make a couple of bleeps. So as we look at technology’s progress the way that it absorbs the issue of miniaturization and dispersion of almost all aspects of how we think of creativity. You can edit, you can transform—all this stuff becomes part of your compositional palette in a way that previous generations probably wouldn’t even be able to understand, let alone engage legally.
Human beings at this point generate what we refer to as 500 petrabytes of information a year, which is basically more information then our species has created in its entire existence on this planet. Most of the information is based on cell phone frequencies, faxes, telephone messages and so on. So if you think of a gigabyte verses a parabyte, a tetrabyte, megabyte, kilobyte, hectobyte, etcetera, the idea here is that you are looking at information itself as becoming a kind of ecology. We are moving faster and faster into this idea of a massive, huge ball of information. How do you filter it? How do you transform it? How do you make information reflect culture? So when I am hearing Hank Shocklee talk, when I am hearing Larry, and I am hearing the folks from all these different perspectives. Well, we have to understand that the 21st century is being faced with a series of questions about what exactly is creativity. I start out mainly as a writer and artist and I consider sampling to be a form of sculpture. Think of Robert Rauschenberg’s 1955 “combines.” By collaging and pulling fragments from the detritus of the landscape around him, he created what they call “fine art.” For me and Hank Shocklee we pull from our record collections, we pull from our archives, we pull from radio waves, telephone conversations, files online, you name it. The idea is that one generation would view it as fine art and the other, as a lawsuit. So, what I am trying to figure out right now is that most of the issues I look at as a creative artist operating on a global level reflect the sense that we are having a conflict between different time periods and how you interpret the law and how it controls the creative act. So Robert Rauschenberg of course and Andy Warhol and even other people like Jeff Koons usually have had a series of lawsuits that at least paved the way somehow for the fine arts. In the music scene it’s extremely uncertain who owns many of the rights he talks about.
For example, in my book, Rhythm Silence, which just came out a little while ago on MIT, it’s kind of a manifesto and not necessarily a straight up academic book, but I collect records by artists and authors as a small section of my record collection so when I was compiling the CD that went with the book, I got really rare recordings, for example, James Joyce reading Finnegan’s Wake into a phonograph that Thomas Edison had given him. I put a really rare recording of Gertrude Stein reading a poem about Picasso, Tristan Tzara’s manifesto and so on. And I mixed those with Gertrude Stein kind of rhyming over hip hop beat or Antonin Artaud’s theatre works. But with the idea of collapsing the distinction between these high modernist authors that are heroes of the academy and mixing them more with an urban kind of aesthetic. So, my next couple of projects after that, I end up going through my next mix CDs after my book is a collection of Trojan records which is a very legendary Jamaican label founded by Arthur “Duke” Reid. He’s a legendary figure in Jamaica, and the sound system culture in Jamaica actually collapsed most western concepts of copyright law because essentially people were just making copies of their favorite records and playing them out in the park. Way before hip hop the idea was that you would have a sound system outside—Reid had a truck literally called a Trojan truck and they would set up these sound system speakers and just start playing records. So the idea here is that once everybody heard a rhythm that they liked they would run back to their studios and make a copy of that rhythm and the next thing you know people put out entire records of the same rhythm and that became very popular and Jamaican culture was always listening to what was going on in American culture; like with DJ Kool Herc in terms of hip hop, he was Jamaican and he came back up to America with this sort of sound system aesthetic and the rest as they say is history. And Arthur “Duke” Reid would actually create these kinds of dub plates for the popular songs, and nobody was quite sure who owned those records but people would actually have what were called sound system battles and they were used to determine what would be the most popular rhythm and that would be used to determine what was the hit of the day. In terms of the turntable culture DJ culture the fine arts, you have to think of these as aesthetics that are inherited from the idea of both collage and also being able to manipulate music not as music but as information. Thomas Edison is of course one of the founding figures of this kind of scene, but my motto for this is that there is a very famous poet who coined the phrase, “architecture is nothing but frozen music.” What I want to do is reverse that process, reengineer it and look at music as nothing but “liquid architecture.” Thinking about the idea of flow and the ebb and flow between people as a kind of system of exchange.
No one is an island to oneself and I am thinking of trying to see DJs not only as a social network but as a collaborative filter where people exchange and freely kind of engage in these transformative social sculptures as a way of making music better. And again that’s going back to the Jamaican model rather than American model. One of my favorite models recently was made by a graduate student named Reginald Smith over at MIT. Where he went on the online hip hop archive of almost all the lyrics of the major songs and did a study of who had borrowed lyrics from whom. And he made a kind of algorithmic map—I guess it’s a little blurry, but you can see one of the most collaborative people in hip hop is Snoop Dogg for example—he is at the center of the map. And Funk Master Flex is always on a lot of people’s albums, Jadakiss, Puff Daddy, Ludacris, each person is kind of a of a relationship to each other and these are known to be exchanging lyrics and doing guest appearances on each other’s albums. And I like to kind of think of that as a three dimensional model of this kind of collaborative process that hip hop and various folk musics usually do.
If you think of the distinction between folk music and the music of the fine arts, which very composed, most of the 20th century’s archive of music comes from folk music—whether it’s Gershwin, whether it’s Eric Clapton, whether it’s Charlie Parker and so on. What I am trying to evoke here with the idea of the gift economy, is that folk music has now become digital and the way that electronic music operates is kind of a global folk culture. So this map here is a really fun way of visualizing what I am trying to talk about with sampling and shared gift economies. I am just going to wrap up here with one or two quick clips here of current projects. As I said before, I just finished something with Trojan Records where they gave me access to their whole archive. One good example is Charlie Parker quoting Billie Holiday, being quoted by BB Kingston in 1967—all of those relate to Gershwin’s Porgy and Bess in 1935, the opera that was a very controversial opera about race in America. But the idea here is that the quotation: there is a very famous essay by Emerson where he says, “by quotation and originality.” Back in the 19th century, he was essentially trying to point out that America is a culture of quotation and perhaps one of our gifts to the world at this point is the ability to have multiple versions of different cultures operating at the same time.
Shocklee: I think it’s funny because Paul said some incredible things about how you know, music and is a reflection to the past and we revert to things from back then. And one of the things about sampling is it forces us to go backwards in history. It allows us to go back and seek these records out and as you’re seeking these records out you find information at the same time, for example I never knew who Clyde Stubblefield was until I started sampling James Brown. And then after sampling James Brown you find out that he also had a bass player Bootsy Collins, who was also in Parliament Funkadelic, so you start to understand that there is a historical lineage that happens between everything, so musically there is a community. One of the things that motivated me in the early eighties was a sentiment about black power and the movement being irrelevant. You know even our own people were shying away from the notion of black togetherness, black consciousness—it was very early eighties that this was going down—and I’ve noticed this being on the Hofstra campus, which is only one percent black anyway, and I see how we almost wanted to forget about our past. So one of the things that I wanted to do was echo our past; I wanted to make sure that our past reverberated through our communities. I wanted to make sure that kids were aware of who Malcolm X, Angela Davis or Huey Newton were, but I wanted to do it in a way that wasn’t corny. Because you know you can be very corny about the way you do that in a way that kids don’t vibrate to it. I think that hip hop music has kind of crossed the boundaries of that and like Paul said, “once you put a beat behind something, you know it’s very powerful.” So you know that was one of that main reasons for using the sampling, especially as the vocals go.