By Ben Torgerson
A crowd has gathered at a local bar, excited for the music to begin. One man in front is scrolling through thousands of preloaded songs, deciding which ones best reflect the feeling from the crowd tonight. The music comes from all kinds of artists, but tonight they will be used to create something entirely new. UMD junior Ben Jorgenson, or DJ 6-Shooter, performs remixes of songs in bars and clubs nearly every week, and usually makes some money while he’s at it. The type of music he’s making is a somewhat new phenomenon, and is still slow to be accepted by many musicians from past decades.
Copyright law and fair use are deeply ingrained in the issue of music sampling, and DJ’s and other musicians face this reality in almost all of their work today.
“I take different aspects of songs that already exist and rearrange them into something completely new, depending on how I see fit to reflect my listener’s wants,” Jorgenson said.
Digital Sampling is a term that meant nothing two decades ago, but today is at the core of music. “Sampling” occurs when an artist captures a certain part of an existing song and loops or rearranges it in order to create a new piece of music. Today's DJ's face a moral and ethical challenge when deciding how and when these samples will be used, and whether or not to attempt to get permission to use these samples. Since sampling became prominent copyright law has stayed dormant for the most part, even with huge changes in both technology and music.
“Sampling has created a gap in the music industry. There are a lot of people who oppose it because of copyright infringement, but many small time DJ’s like to use it to get their names known,” Jorgenson said.
According to Don R. Pember’s book Mass Media Law, "fair use" is a doctrine designed to permit small parts of copyrighted material, depending on the situation, to be reused without permission. This doctrine is vital to the topic of music sampling, both in favor of and against it.
On one hand, artists can use the ambiguous guidelines of the doctrine to their advantage, to get around copyright laws. Courts consider things like the percentage of the original work that is used and the effect the sampling will have on the potential market of the original work. Such cases can be extremely difficult to measure or prove. The courts determine if the artist took the “heart” of the work in their new art, another term proven vague in past court cases.
In 1994, the rap group 2 Live Crew performed a parody of Roy Orbison’s hit, “Oh, Pretty Woman.” They were brought to court by the owners of the original song, and it led to a high-profile case that showed how intricate fair use can be. 2 Live Crew won the case, and according to Pember, Supreme Court Justice David Souter said that it was significant that the group added their own lyrics and original sounds to Orbison's chorus and bass line. Unfortunately, not all sampling cases are created equally, not even close.
Often, multiple samples will be layered on top of one another, such as the sampling classic from the Beastie Boys’, “Paul’s Boutique.” The album was produced with hundreds of samples, including The Beatles' guitar solo from “In the End,” Johnny Cash’s “Folsom Prison Blues,” Led Zeppelin’s “When the Levee Breaks,” the reggae classic “Stop That Train,” as well as countless radio and voice samples, according to Wayne Robins’ Newsweek article “‘Boutique’ and the Beasties': Audio Delight.” Because of their work on the album, the Dust Brothers, "Paul's Boutique's" producing team, became famous and critically acclaimed for their reworking of music from the past.
“If copyright laws back off and people develop a taste for this patchwork of music, It’s really an almost limitless art. It’s almost endless how you can rework someone’s music into something new,” Jorgenson said.
What began as a simple way to create beats to rhyme over has made its way onto our radios and iPods today. A vast majority of rap and electronic music is based off of sampling, as well as many other genres today. According to John Lindenbaum’s article, “Music Sampling and Copyright Law,” the idea of recycling musical ideas is nothing new, and has existed since early folk music. There is a natural progression in music that borrows from the past and creates something new with it.
“People look to others and mimic what they do, and then add in their own style. This happens naturally, and is important for music to progress,” said Scott Vazina, who goes by the rapping name Scoot Vazoon while onstage. He rhymes over beats that almost always contain samples of other music.
Artists using these ideas have rarely been questioned throughout history, but sampling has changed all of this. Something about taking the actual clips from existing songs makes them viewed differently by courts, fans, and musicians alike.
“Singin' folk songs, but not no Kumbaya my Lord
You download it for free, we get charged back for it
I know you're saying, they won't know they won't miss it
Besides, I ain't a thief, they won't pay me a visit
So if I come to your job, take your corn on the cob
And take a couple kernels off it that would be alright with you?
Hell no! Yeah, exactamundo.
-Andre 3000, “What a job”
There were some high-profile sampling cases in the nineties, such as 2 Live Crew’s use of Roy Orbison’s song discussed earlier. Now, according to Tim Wu’s article “Jay-Z versus the Sample Troll,” more companies like Bridgeport Music, Inc. have been surfacing. These companies purchase as many copyrights to as many songs as they can, in order to use them against successful artists and receive large amounts of cash in settlements. Many artists today feel that this is a dated way to look at copyright, and that things need to change.
According to the article “Sampling: musical authorship out of tune with the purpose of the copyright regime,” by Rahmiel David Rothenberg. “… the legal battle that sampling is presently engaged in illuminates many of the future, and ongoing, issues that copyright law faces… the American courts and legislatures have refused to fully recognize this dialogical nature of creation, in addition to the well-recognized, so-called 'original authorship'."
“I don’t think there should be any copyright laws. The people who are getting paid make enough already,” Jorgenson said.
Copyright law applies to many types of art, but perhaps none as complex as that of music. Technology in the last 25 years has changed music drastically, making the issue of copyright even more entwined with the music industry today. The Internet allows music and information to be easily be shared, making sampling both simple and convenient for DJ's today.
DJ 6-Shooter is just one member of this movement, but so many like him see this new blend of music as their art. As long as artists like him continue to feel as passionate as they do about it, sampling seems to be a mainstay in the music world. These artists seem confident in their crusade against copyright laws, and are excited for the future.
“Sampling is here to stay, no matter how anyone wants to deal with it. The network is too large, and the movement is too strong for it to be stopped. The Internet has added a sense of community, and has made us an unstoppable force,” Jorgenson said.