While the recent Google Books ruling by the US Second Circuit has once again proven how the US copyright system is – thanks to its fair use provision – more flexible and adaptable to digital challenges than its European counterpart, in other fields the legal situation is very similar on both sides of the Atlantic. One such field is digital sampling in music, which is the topic of the book “Creative License: The Law and Culture of Digital Sampling” by McLeod and DiCola (2011, Duke University Press).

Cover of the Book

Cover of the Book “Creative License” by Kembrey McLeod and Peter DiCola (2011, Duke University Press)

Sampling is a comparably recent practice where parts of sound recordings are reused in creating new works. According to McLeod and DiCola, “a good appropriated sample has […] a good quality of its own, and it has a strong reference that evokes cultural resonance as well” (p. 99, emphasis added). The latter of the two, cultural resonance, not only adds an additional meta-layer of cultural reference to a song but is also the main reason for legal calamities associated with sampling. As with remix practices more generally, a core characteristic of sampling is that the old remains visible within the new and is not hidden behind a (more or less transparent) veil of originality.

However, this visibility of creative raw materials – that is, samples of previous works – is considered as some form of creative “short-cut” by the courts, which require samplers to clear each and every sample they use, as small and tiny the portion of sound may be. McLeod and DiCola:

Bridgeport Music v. Dimension Films held that no de minimis exception applied to sound recordings. […] [T]he bottom line was, as the ruling stated, ‘Get a license or do not sample.’” (pp. 139, 141)

In Germany, the decision “Metall auf Metall” by Germany’s highest court had identical consequences. The detrimental effects of such a restrictive application of current copyright to the artistic practice of sampling are the reason why sampling-based creativity suffers from permission culture.

McLeod and DiCola identify three reasons why current copyright stifles sampling. First, transaction costs are regularly substantial:

“The transaction costs of licensing existing copyrighted works are almost certainly higher than the transaction costs of a bakery’s purchase of the ingredients for bread. […] For each of the samples requiring a license, he would determine who owns each copyright (a huge problem on its own), and then gain permission from the owners of both the sound recording copyright and the composition copyright.” (p. 12)

Second, royalty stacking further increases licensing costs since “each copyright holder expects too great a royalty, regardless of the expense of the transaction itself” (p. 213). As a third economic impediment to sampling, the authors argue that “the sequential nature of musical production […] leaves only after-the-fact licensing negotiations” (p. 214).

Taken together, these three hurdles for sampling constitute steep economic constraints on sample-based creativity, raising also more fundamental questions regarding freedom of speech. McLeod and DiCola quote M. C. Schmidt of Matmos, who bemoans “the cop in your own head”, and conclude that “the economic inefficiencies of the sample clearance system are ultimately a free speech problem” (p. 215).

Unsurprisingly, actors in the music industry develop both creative and business responses to sampling problems. McLeod and DiCola identify five categories of such responses, each of which with its own particular downsides:

  1. Replays: “Replays (or interpolations) involve recording a new version of the musical composition underlying the sample in order to avoid obtaining a master use license for the sound recording” (p. 189). Of course, a replay is only a viable solution in cases where rights for musical composition can be cleared and does not help in cases with multiple samples.
  2. Mimicking the sound of sampling: “The group would play a guitar riff, press it onto vinyl, and then sample their original guitar riff – ‘just to have the effect of it being sampled,’ [Saul] Williams says” (p. 193). Mimicking the sound of sample, however, has the major downside of giving up a major part of what sampling is all about: cultural resonance.
  3. Transforming and disguising samples: “‘You’re running through effects, chopping shit up, and placing it and rearranging it so that it just is not recognizable,’ EL-P says” (p. 195). Again, by transforming samples beyond recognizability, one loses cultural resonance and such a strategy is therefore not an option in cases, where sampling is all about recognizably mixing the old with the new.
  4. Flying below the radar: To a certain degree, “licensing costs affect not only the decisions about individual samples but also the choices about how to release entire albums. Speaking broadly, licensing costs can affect how and whether musicians choose to participate in the commercial music industry” (p. 197). One major example for such a decision is the German mashup artist Mashup Germany, who refrains from even trying to commercialize his works and sticks to live performances only. A variant of flying below the radar are underground recordings, where “musicians sell their recordings through retail and Interent channels (mostly lower-profile outlets), and decline to license the samples in the hopes of avoiding detection.” The now famous “Grey Album” by DJ Danger Mouse had originally been such an underground recording “before EMI sent Danger Mouse a cease-and-desist letter” (p. 198).
  5. Albums you can’t (or don’t) make anymore: “An Album like De La Soul’s 3 Feet High and Rising or Public Enemy’s Fear of a Black Planet, it’s difficult to make it today” (p. 201). To illustrate that point, McLeod and DiCola estimate sampling costs for Public Enemy’s “Fear of a Black Planet” (-$6,786,000) and Beastie Boys’ “Paul’s Boutique” (-$19,800,000) under today’s copyright regime (pp. 207-210) – both leading to ridiculously high amounts of sampling costs under the assumption that samples could be cleared in the first place.

At the end of their book, McLeod and DiCola discuss several potential avenues for reform, including (1) enhanced property rights, the (2) introduction of compulsory licenses similar to cover versions, (3) expanding non-infringing uses such as a de minimis rule for sound recording copyrights, and (4) innovations in voluntary licensing such as Creative Commons licenses. Obviously, these lsuggestions do not exclude each other and would help to recognize, in the words of McLeod and DiCola, “a simple social fact”:

“people like to quote, remix, and play with words, ideas, sounds, and images, and this has been true in one way or another throughout human history” (p. 266).

All in all, McLeod and DiCola is one of the best empirically founded analyses of the (detrimental) effects of copyright on certain kinds of creative processes. After reading their book, one cannot longer deny that “[copyright] law encourages some forms of creativity and discourages others” (p. 6). Given that some of the most vibrant and creative fields of digital culture rely on sampling and other remix practices, the strong bias of copyright law against such forms of creativity is particularly worrisome. Recognizing that such great works as Beastie Boys’ album “Paul’s   Boutique” would be impossible to make today poses the question how many great works have not been made because of the broken sample clearance system.