Ethics of sampling

[Andre LaFosse <altruist@earthlink.net>]

Stephen P. Goodman wrote:
 
> Sounds like a bunch of folks wrapping themselves in the term Fair Use, as
> if, once someone else creates an original work, anyone has the right to 
>use
> it as they see fit, as if all defaults to the public domain, as a result 
>of
> publishing.

>From my point of view, that's really not the gist of the argument.  As
has been said before, there's a difference between excerpting or
referencing part of a work as opposed to out-and-out ripping off the
entire work as one's own.
 
> If this newsletter is mainly populated by people who sample for the 
>content
> of their material, it'd be a surprise, as I've seen enough informed 
>opinions
> on the nature of performance to count this newsletter second to Elephant
> Talk.  

I personally don't use samples of other people's work (except for the
factory-sampled individual note sounds in my store-bought
sample-playback sound modules), and for me personally I don't like the
idea of sampling other people's music in my own.  At the same time, some
of my very favorite albums are from the electronic/hip-hop realm and are
literally bursting at the seams with sometimes hundreds of samples of
other people's work.  

So I vehemently dispute the notion that a person has to make a practice
of sampling other people's material in order to be able to personally
agree with Negativland's argument for fair use.  My own lack of interest
in sampling other people's music has nothing to do with the legal issue;
it has to do with personal creative issues that I hold only myself
accountable for.

> How anyone can pretend that gratis use of material someone else
> created (and this is a keyword) is justifiable is beyond me, completely. 
> If
> the source is public domain, that's fine.  Otherwise, it's just a 
>softening
> of that word noone likes to hear, Theft.  Oh, excuse me, "borrowing 
>without
> checking".

One of the interesting things that the whole "ethics of sampling" debate
argument always tends to bring up is the fact that "borrowing" from
other pieces of music happens all the time, and has happened for
thousands of years.  It's pretty well-known and accepted in all sorts of
musics; but when it actually happens in a manner as direct as literally
recording the original source of inspiration, suddenly it's a different
matter.

Here's a couple of examples using everyone's favorite looper-at-large
(/sarcasm).

There's a tune on the David Sylvian/Robert Fripp album called
"Brightness Falls."  Now, listen to the opening guitar riff in that
tune, and then listen to the opening guitar riff in the Hendrix tune
"Foxy Lady."  To say that there's a distinct similarity is a mammoth
understatement.  Yet the writing credits for the music of "Brightness
Falls" lists only Fripp, Sylvian, and Trey Gunn.  

Go back about 20 years and listen to the King Crimson album "In The Wake
of Poseidon."  There's a 5/4 phrase in the song "The Devil's Triangle"
which is lifted directly from a movement of Holst's "The Planets."  But
there's no Holst listing in the writing credits...

> Putting notices on ones products, when they contain samples, modified 
>from
> the source or not, of someone elses work, is just theft with excuses.  
>How
> is that supposed to protect anyone from prosecution for copyright
> infringement?

Fripp didn't put any notices on either of the two examples above -- he
doesn't even make excuses for his theft!.  By your own argument, Fripp
deserves to be sued by the Hendrix estate for theft of Jimi's work.

You could conceivably extend the logic even further, and argue that
Fripp deserves to sue every one of his fans who fall under the category
of "mild-mannered guitarist who creates ambient electronic music with
real-time looping (particularly with an e-bow and/or the New Standard
Tuning)" for ripping off his "original" Frippertronics idea.  Then Eno
could sue Fripp for taking an idea he showed him and slapping his own
moniker on it, and Terry Riley could sue the rest of them.  The
possibilities could go on and on, right up until the inevitable Puff
Daddy remix of "21st Century Schizoid Man," replete with Saturday Night
Live appearance featuring Fripp and a 20-piece big band.

Just where do you draw the line between influence and theft?  It seems
overly simplistic and unfair to relegate theft wholly to the realm of
anybody who's using a sampler, as there are myriad examples of
non-sample-based works that are pale-faced rip-offs, as well as many
sample-based works that recontextualize their component elements into
unrecognizably different forms, to the extent that no one (including the
original artists sampled) would ever recognize or associate the source
with the final product.

(This also brings up another point worth noting: ripping off the
compositional element of a piece affects only the copyright holder of
the composition.  But actually ripping off the recording of a piece also
affects the holder of the copyright of that recording.  In the
overwhelming majority of cases, that's *not* the artist who wrote the
tune -- it's the person who contractually owns the recording, which is
almost always the record label.  Certainly offers a different
perspective on why the RIAA might pursue sample clearance more
vehemently than mere compositional clearance...)

I'm not trying to claim right or wrong in this; I'm merely pointing out
how there's one set of generally accepted ethics which deals with this
sort of compositional "borrowing" of ideas, and a completely different
one that tends to get applied to direct sampling of an audio recording.

> the noise made by the sampling community-at-large still smacks of an airy
> justification for being caught with their hands in the jar, as if "the 
>jar
> was open!  I smelled the cookies!" is an excuse.

Given the trouble Negativland is facing, and the tremendous extent to
which record labels have had to go to clear any and all obvious samples
in recent years, I'd say that the "jar" is far from open.  And I don't
think the issue is so much whether or not the sample is recognizable (in
fact, the Negativland argument seems to revolve around the idea that it
should in fact be a readily recognizable cultural reference), but
rather, whether or not referencing a work deserves to be considered in
the same light as ripping it off wholesale.

> This is beginning to smell like the PC vs Mac argument, a 
>highly-developed
> (though only sporadically active) form of intellectual masturbation.  

Better that than a poorly-developed form of masturbation.  Wonder what
*that* would smell like...

--A