Grey Tuesday: The Grey Album, Sampling, Mixing, and the Law

Great Debates
1

This Tuesday, DJ Danger Mouse is making an impressive stand. He has taken an acapella release of Jay-Z’s “Black Album” (issued just for the sake of such remixes) and mixed it with the Beatles “White Album”. At least 100 websites plan to host this album on Tuesday, and EMI (who controls the ‘White Album’ copyrights) is not happy. Yep, this is another music copyright thread. Sorry in advance.

The problem, as I see it is this: Sampling and remixing has become a valid art form. It takes talent, skill, practice, and creativity to make an original work regardless of where you get the sounds. These compositions, when done well, are separate and different from the sources used to create them. There is a HUGE market for this type of music. Whether you particularly like the genre, it is unmistakable that millions of people do. Billions of dollars can be made here. But the recording industry prefers to horde their copyrights. This has resulted in a situation where the music industry is eroding and impeding creativity and a very popular form of music. It seems ironic to me that the industry charged with bringing the best music to market is trying to cut off it’s supply to some of the best music around.

So what should be done? There is no doubt in my mind that musicians deserve credit, and more importantly, cash when other people use the fruits of their labor for profit. The current system sucks, as it stifles creativity, and hinders a highly entertaining and important art form. There is a much better alternative. Cumpulsory use laws would go a little something like this: Dj’s would voluntarily register their work. They would pay royalties on the copyrighted samples they use based on how often their piece gets played. The Dj then registers his mix as an original work, and anyone who samples his stuff (and makes money from it) would have to do the same. In this way we allow sampling, make it reasonably priced, and continue down this incredible road of modern-day creativity.

It seems to me that “Screw the remixers” is just as bad as “Screw the original musicians”. There is an answer in between. Djs, producers, classic musicians, and the recording industry need to establish a system that allows kids to experiment with this new art form legally, and ensures that all parties involved are treated fairly. In addition to compulsory use laws we need to put a cap on how long something can be copyrighted before it is determined to be in the public domain. 50 years? 100?

The technology of the last couple decades has resulted in a wonderful form of musical creation. It should not be snuffed, but encouraged. Rules need to be set up that are fair and reasonable on both sides. 50 year old copyright laws do not have the scope to deal effectively with this development. The whole system needs to be reworked. Music companies at war with music lovers is a sorry state of affairs.

I recommend everyone check out the Grey Tuesday page, and consider that this isn’t just a bunch of punks trying to rip people off, but a legitimate and beautiful artistic movement rich in creativity, style and talent. Grey Tuesday is not some juvenile stunt, but rather a noble defense of this wonderful art. I’ll not encourage anyone to do anything illegal, as per board rules, but I do ask that you consider that these laws are painfully inadequate in dealing with the current atmosphere in the music world. War isn’t the answer, compromise is the way.

DaLovin’ Dj

2

While the OP is really more announcement than debate, I will say that I agree, in general, with the proposition. Samplers should have the right to sample a song, and should pay a fee to the original recording artists AS WELL as to the people who hold the publishing rights (just as any musician who is covering a song has to currently).

I think, though, that it should work just like the publishing rights: Those who request and receive prior permission pay a lower rate, those who don’t pay a higher (some would say, punitive) rate. You need a mechanism in place to protect artists from having their songs co-opted in ways in which they don’t agree, or have pitiful artistic merit–i.e., remixing “Jenny from the Block” so that the only major change is someone shouting in the background, “J.Lo’s got a big fat ass!”, etc.

Such samples/remixes should be allowed, they should just be very costly to produce (and therefore provide some measure of benefit, i.e. $$$, to the original artist, even if the treatment of the song is hostile).
The bigger question: What about amateurs sampling famous songs and then publsihing them solely on the internet – very probably, for little or no profit? Who’s going to police all of that?

3

I would have put it in the Cafe, but my understanding is that this forum is not only for subjects and positions you would like to debate, but also subjects you simply wish to talk about which are likely to lead to debate. Sort of a pre-emptive forum placement. If nothing but agreement roles in I’ll be presently surprised.

If they make no money, then they shouldn’t have to pay any. Perhaps there should be a time span tied into the scale. 3-5 second samples are free until you make a profit. 5-10 second samples are reasonably priced (a buck or two) until you make a profit, and so on and so on. Once you get past a certain time limit you have to pay as much as anyone else who wanted to use the whole song. But charging a kid who wants to drop a 3 second sample into an original track the same thing you charge a major motion picture that wants to feature the song is ridiculous. Also, artists should also be allowed to forgo this scale if they choose, allowing other artists to sample their work freely (as I believe James Brown and George Clinton already unofficially do).

I heard once, but haven’t been able to confirm, that the Beastie Boys were able to use all of the samples on Paul’s Boutique without paying for them because they were all less than a certain time. I’d love to know if there is such a law built into the regulations, but I’ve had trouble figuring that one out. There should be a large scale between free and full royalty charges based on how heavily you use the source material. Also, record companies should not be allowed to forbid someone who is willing to pay from using samples (which happens now - EMI wouldn’t have let them use the White Album whether they asked legally or not).

DaLovin’ Dj

4

I could be wrong, but I think that goes against current laws regarding “public performances”, etc. I don’t think you HAVE to make money to be required to pay the copyright holder.

Not a bad idea. But by allowing ANY of it, you still open up huge policing issues for the RIAA et al. They would have to check each song for length of samples, and figure out some way of monitoring each pipsqueak musician’s MP3 sales. I guess you could have legitimate artists register their usage with the copyright holder, and then prosecute the hell out of anyone who doesn’t register … but I question (a) how many DJs/musicians are going to want to take the time to fill out all of that paperwork and wait for it to be processed (b) the interest the record companies will have in hiring huge staffs to handle this new paperwork, listening to every song to be sure it complies, hunt down registry-dodgers, etc. I think the expense would climb so high that the companies would have to jack their licensing fees WAY up in order to both cover their administrative costs and make some money.

This I agree with. EMI missed a golden opportunity–they should have simply said, “Sure you can sample the songs; but each song’s going to cost you $5 million dollars up front, plus $5 per play in royalties.” Since there’s no fair fee structure in place (as with ASCAP et al), they could have gouged the hell out of the artists in question and still looked OK to the public; they could have simply said, “The White Album is a very, very valuable property, and worth every penny of what we offered to license it for.”

5

On re-reading, didn’t mean to sound as snarky as that came out. I do think:

a) People who are willing to pay should be willing to sample
b) an ASCAP-style licensing system should be instituted

but

c) No such system is now in place, so
d) if I were an EMI exec, I would take advantage of the situation by sucking licensees dry

also

e) The ASCAP-style system is really geared toward people publishing music via the current record-label system
f) That system, IMO, could never be made to accommodate the vast sea of amateurs and low-paid musicians who would likely want to use such samples
g) kinda sucks, but I don’t see any way out of it that would still be attractive for the record companies (publishing-rights-holders get something out of ASCAP licensing: money; what would record co.'s get out out of this? Perhaps I’m wrong in my assumptions, but I still think the administrative costs would either overwhelm any potential profit for the record co.'s or raise the cost of such license fees too far above the means of the very starving musicians they’re meant to serve. I don’t think the public good of musicians being able to explore a new art form outweighs the rights of the copyright holders to make money off of something they’ve invested a great deal into developing/acquiring, which would seem to be the case here.)

6

This seems like the way to go. Provide reasonable, affordable, sampling rights to those willing to register their work (with a scale that gives the artists/coyright holders more dough should the song take off). If the Djs fail to register, then when they get caught they should have to pay a reasonable fine, and then pay the registery fees or cease and desist. The RIAA wouldn’t have to spend any more on policing then they already do (which is alot to begin with). This type of system would allow these Djs to pursue their art fairly, if they choose. If they try to steal it, they assure themselves a fine if their piece pops up on the radar due to popularity. If the piece never gets popular, then what has anyone really lost?

The two most important things are to allow the art-form to develop and continue, and to provide compensation to the artists/CR holders in a manner that is reasonable and fair. We are far from such a system right now. I also envision package deals, where a Dj can pay $100 bucks or so for the rights to use anything on a hundred albums. Big name artists may choose to eliminate themselves from such package deals feeling that their music is more valuable, or they could join in to appeal to the fans and create an image that they are “down” with the cool kids. Small time/lesser known artists could benefit by being members of such packages, as it would create a revenue stream (even if it is a small one) they wouldn’t have otherwise.

DaLovin’ Dj

7

What’s to stop me from saying I’m a DJ and releasing a remix that’s virtually the same as the original piece? How do you have a common royalty structure that covers both this and legit remixes?

8

This is where the sample duration would come in. If you use a continuous piece from a song that exceeds a certain time limit (say 60 seconds), then you would pay full royalties, like a movie that uses a song. So someone who uses bits and pieces of song to create something new would be charged much less then someone who just added new effects to the whole song. It’s all about implementing scales and success-related bonuses as far as I am concerned. This All or Nothing (or sometimes Nothing at All) situation blows. And it is not going to work. The kids are going to continue to evolve this art form and the masses are going to continue to eat it up. Cause it’s good stuff.

DaLovin’ Dj

9

What if the artist/copy right holder does not wish to have their album re-mixed?

10

Then don’t release it . . .

11

The thing is that these mixes are going to get made whether people want them to or not. Fans love remixes and sample-based original music. There is a demand, and no shortage of suppliers. This thing can not be stopped. The best that can be done is to compensate the artists/CR-holders.

Artists are going to have to accept that whether they like it or not, once you release a sound, today’s technology has the power to use and reshape those sounds. It is not possible to stop these people. They’ll just go (stay) underground. As with most things, prohibition is ultimately unworkable, and either way it is stupid. Artists should be flattered. . .

DaLovin’ Dj

12

I take umbrage to calling DJs “suppliers” of samples. They are no such thing. Anyone with sufficient technology can sit at a keyboard and record a sample from a popular song—but the DJ or remixer does not write the song. They do not create the original sample and they took no part in the effort that made the sample worth using in the first place. They are standing on the shoulders of giants, as it were, and claiming to be tall. They are not.

I admit that it takes a certain amount of talent to create works based on samples, but I also agree that in a fair world the original musicians should be acknowledged and compensated. And who knows? In twenty years, sample-stuff may be Old School. People may hate it—and how we treat the issue of copyright today will determine the shape of next generation’s art. Should we really bend the rules of copyright for what may ultimately be only a short-lived music fad? I say no.

Twenty years from now I can’t personally imagine a station of Oldies Sample Music. Samples are only fashionable as long as the original is remembered. And sample-based songs are themselves almost completely sample-proof. It’s easy to be complaisant about theft when one has nothing to steal and everything to gain by stealing; it is easy to shrug off copyright issues of sampling when when has never added anything original to the world and everything to gain by copying. In my opinion, these latter are not the people who should be writing our copyright laws.

One thing is certain: I will never release any music I’ve written to the Internet, even to friends, in any form that can be copied and distributed. Songs will remain in my head and in my hands where I can be certain that they belong to me.

13

Who says you need that? Copyright is a government issued monopoly on distribution, intended to let authors and artists profit from their works; it is not ownership.

Jennifer Lopez shouldn’t have final say on how her works may be used (and she doesn’t have final say even today - see “fair use”), or the ability to punish people who use them in ways she doesn’t like. If she doesn’t want people making fun of her songs, she should keep them to herself.

Every artist stands on the shoulders of giants. Where would Jimi Hendrix have been without Fender? He used a guitar someone else put together, instead of building his own, but that doesn’t make him talentless. Now replace “guitar” with “sample” and you have the DJs of today.

I don’t see how anyone can say that who’s familiar with how samples are actually used.

In my (limited) experience, samples aren’t like the snippets of TV shows you might see in a movie, where they’re supposed to be recognized and add credibility to a larger work. Samples are instruments, and you don’t have to know who designed the Stratocaster, or even know that’s what you’re hearing, in order to know it sounds good. If you’re listening to your grandma’s 45s and you find a good bass line or a solid drum, you can sample it and use it in a song, and it won’t matter that nobody recognizes where it came from.

Kudos. I wish more hoarders would do that, instead of releasing their works and then whining that people use them in ways they didn’t expect.

14

I never claimed that DJs had no talent, Mr2001, or that modern artists do not owe a creative debt to previous artists. Please re-read my post. I only insist that they give credit where credit is due.

And yes, of course, samples of particular instrument sounds are the basis for the construction of modern digital keyboards. The Baldwin company samples its own acoustic pianos to create the Baldwin digital sound; Kawai keyboards sample the Kawai acoustic piano; ditto Yamaha. Technics sample the Steinway. Roland has keyboards that sample the tone wheel sounds of the Hammond B-3. Without instrument sampling we wouldn’t have many digital instruments of any kind. In fact, sampling forms the basis for a great deal of foley work, creating sound effects from a library of stock sounds and reversing them, pitching them up and down, changing speeds, and whatnot. At what point is the original sound rendered the property of the sound-tech?

I do understand how samples of individual instrument tones can be used, and I’m honestly not certain where I stand on that. Sampling a drum sound? Sampling a single note from a guitar? Well, okay, but sampling an entire bassline and the piano part from “Under Pressure” and calling it “Ice Ice Baby?” There’s a fine line between “sampling” and “plagiarism” and I’ll be damned if I know where it should be.

In spite of your protests that samples are just single instrument sounds, I also know how longer recognizable fragments are used. In this particular case, we’re not talking about a sample of an instrument; the OP says that an artist sampled together the Beatles’ “White Album” and mixed it with another source and is releasing it as original material. To me, that’s going too far. That’s the point where I think the original artist(s) is/are owed a piece of the proceeds.

Yes, copyright is a government issued monopoly, giving the creator the right to control how his or her creation is exploited, both for profit and for non-profit. It is ownership of the creation in every sense that is practical. I don’t have a problem with that. Why do you? Who do you think should own it, if not the creator? If I write a song, are you telling me I don’t have the right not to share it, because the minute I create it, I don’t own it?

15

Am I understanding you correctly? Are you saying musicians should not be allowed to control how their music is used?

So, if I spend 2 years searching my soul and working on a piece of music and someone wants to use it in a tampon commercial I should have no say in this?

That’s nuts.

I write music and release it. I’m not presonally in it for the money or fame, just for the sake of writing tracks. If someone asks to use it in a movie, I’ll most often allow it (low budget film makers aren’t charged for use). I’m pretty liberal with my licenses. But, I draw the line at tampon commericals. I DO NOT feel I should be forced into allowing my music used where I don’t want it used.

Just because I release a track on a CD doesn’t give you free run of it. I wrote the track. It’s mine. If I die tomorrow, the track I’m working on currently will never be finished. Without me, the track wouldn’t come to be. I don’t know how much more personal ownership there is.

With your logic, does that mean if you spend time in your workshop and build a bench, and place that bench in your front yard, I can come along, take it home and use it how ever I want?

16

I think you should listen to the The Grey Album. It really is quite original.

17

That sounds reasonable… but as far as I can tell, they already do give credit where credit is due in nearly all cases.

I agree (though you should really listen to it before you judge how original it is). But from what I see in the OP and on the Grey Tuesday page, the problem isn’t that the remixer doesn’t want to pay royalties, but that EMI is trying to prevent the remix from being released at all, royalties or no royalties.

Real ownership doesn’t expire after a few decades, and doesn’t have dozens of exceptions. When you own a car or a house, your neighbors don’t get to borrow it for educational use and parodies.

No one. While I agree that copyright may be necessary to provide an incentive to create certain types of art, I find it absurd to think that someone can “own” an arrangement of notes, rhythm, and vocals in any real sense. The “ownership” they have today is nothing but a government handout, given to them as a reward for creating something more or less original.

Of course you have the right not to share it… just because you don’t own it doesn’t mean anyone else can force you to perform it for them, or give them a copy.

Please, if you want to debate copyright or the ownership of information, do a search and read the many prior threads on that topic, or start a new thread if you feel the need. I don’t want to turn dalovindj’s thread into another of those.

Yup. They should be compensated when it’s used, but the amount should only depend on objective measures (how much of the song is used, how large the audience is, etc.), not the musician’s personal feelings about the way it’s used.

They should pay you for the rights to use it in a commercial, but Tampax shouldn’t have to pay higher rates than Chevrolet or Pepsi just because you don’t like them.

If you buy it from me, then of course you can use it however you want… just like any other product.

Car dealers don’t tell you “You can buy this car, but only if you promise not to drive it in Florida.” Music stores don’t tell you “You can buy this piano, but only if you promise not to play any pieces by Beethoven.” And musicians shouldn’t tell you “You can buy the rights to use 30 seconds of this piece, but only if you promise it’s not for a tampon commercial” … or more to the point of the OP, “only if you promise it’s not for a remix or a parody.”

18

Damn, I knew I shoulda copyrighted my idea . . .

I’ve always thought that an artist should be able to use any other published work in his or her work, as long as the original artist is compensated in some fair measure. Once a work is published, its creator should have no say in how it’s used, but should be able to sue for payment.

It’s simply WRONG that The Grey Album could be suppressed–ditto Todd Haynes’s “Superstar” and all the important work done by Negativland.

As far as I’m concerned, that’s the tradeoff for going public. I’ll never understand how an artist would want to publish his work to the four winds, then insist it be treated like a secret or something. Waaah. It’s like playing gin rummy: the decision you have to make is whether to “publish” your threefer, or your flush. If you do, the other players can “profit” off of them. If you don’t, they might “die” with you.

How can one artist think he can control the work of another artist? An artist takes in things around him–light, noise, ideas, colors, whatever–and makes something new out of them. It’s bizarre that some of these cultural stimuli are childishly hoarded–BY FELLOW ARTISTS–just because their synthesis is one generation back.

If your art becomes part of the cultural context that begest new art, you should be proud, and of course you should be able to seek payment. But you should not be legally allowed to FORBID other artists this or that part of THEIR cultural context. You can’t bar the door after you willingly let the horse out, but you should be able to charge a fee to subsequent equestrians. To torture a metaphor.

19

Bullocks. It’s my music I own it and I do what I wish with it. If I wish to sell it that does not give anyone the right to copy what is mine. No matter how creatively they change the tracks I still own them and if they copy or remix them without my permission they are stealing from me.

20

no but you could sit outside his house, with your own implements, look at his bench, and recreate it…you could even change it some, to suit your needs.

your analogy is false because you are taking his only copy of the bench.

and I have a question–how many notes does it take for a melody to be copywriteable? how many words make a phrase that way? Could I make a song consisting of middle C being played over and over, with someone singing the word “and” over and over and copywrite it? I hope so, then I could sue anyone who ever hit a middle C while singing the word “and”.