by Mark Gabrish Conlan • Copyright © 2009 by Mark Gabrish Conlan • All rights reserved
The library movie last Monday was a fascinating one: Copyright Criminals, made for the Independent Television and Video Service (ITVS), which supplies programming to PBS stations that want it (which usually isn’t the one in San Diego!), co-directed by Benjamin Franzen and Kembrew McLeod based on McLeod’s book of the same title. There are a number of films that could be made with that title growing out of the increasing stringency of copyright laws — how giant corporations, with their near-total domination of politics and governance, are extending copyright protections for longer and longer periods (aiming to change the basis of U.S. copyright law from its constitutional basis — ensuring artists and inventors a limited-time monopoly on selling their work in order to encourage them to create — to creating a permanent intellectual-property right held not by the actual creators but by the corporations that bought the rights from them in the first place) and tightening up the criteria under which others can use copyrighted material on a “fair use” basis; and the paradoxical advent of digital technology that has made duplication (both outright copying and re-use) far easier and thereby threatened the technological assumption behind copyright law: the ability to ban the sale of physical copies of the material by anyone other than the copyright holder or an authorized licensee.
What Franzen and McLeod chose to focus on was a form of artistic creativity, copyright infringement or both that actually pre-dates digital technology: so-called “sampling,” the use of snippets of previously recorded music to create a new background track, usually as a background for rap (or “hip-hop,” to use the euphemism for rap favored by people who like it). The filmmakers take a pretty ardently pro-sampling point of view, saying basically that this was an art form created by young African-Americans in depressed areas like the South Bronx in New York and Compton in Los Angeles County, people who wanted to make music but couldn’t afford conventional instruments — so they worked with turntables, lifting bits and pieces from old records (mostly funk from the 1970’s by artists like James Brown, Rick James and George Clinton, the mastermind behind Parliament and Funkadelic — which were actually exactly the same people, except Parliament used horn players and Funkadelic did not, but because they were technically two separate bands Clinton signed them to two different labels: a throwback to the time Duke Ellington had “exclusive” contracts with several different labels at once, sometimes recording under his own name and sometimes as “The Harlem Footwarmers” or some other pseudonym de jour) to create a musical texture over which rappers would perform.
Nobody really cared much as long as these were just young Black kids busking on streetcorners, either not recording at all or just selling homemade cassettes; but when sampling started being the basis of multi-million selling records like Public Enemy’s It Takes a Nation of Millions to Hold Us Back, De la Soul’s Three Feet High and Rising, and the Beastie Boys’ Paul’s Boutique, the music industry started fighting back, suing and winning. The result is that now the only people who get to sample are highly successful artists who can afford the often stratospheric licensing fees and people still doing it underground, keeping under the radar of the music industry and — this being the 21st century — distributing the work not on homemade mix tapes but on Web sites.
I must confess to far more mixed feelings about sampling than those reflected in this film — I can acknowledge the argument that by sampling, people are creating new works of art based on old ones (we wouldn’t have a lot of Shakespeare’s plays if he’d had to worry about copyright — while it undoubtedly drove him nuts that there was no legal way he could protect something once he’d performed it, he also took full advantage of the lack of copyright laws to recycle his plots from the work of others; one has to wonder if Hamlet would exist if Shakespeare had had to deal with modern-style copyright laws and thereby either would have had to license the plot from Thomas Kyd or worry about Kyd suing him; likewise one wonders if Matisse would have bothered to do collages if he’d had to worry about the publisher of Le Figaro suing him for appropriating their front pages and demanding a cut of every picture he sold containing their “content” — just as Shepard Fairey is now facing a lawsuit from Associated Press over his Obama “Hope” image) and there ought to be a legal avenue by which they can express their sort of creativity without making it prohibitively expensive.
At the same time, they are basing their creations on previously created material, many of whose creators are still alive and deserve to be compensated. To make the moral situation even muddier, the people who hold the copyrights and are demanding major sums of money to “clear” samples they own legally aren’t always the same people who created them — a defense the “copyright criminals” frequently make in their own defense (“Hey, we’re not ripping off the original artists — you’re the ones who did that!”) Certainly the most poignant person profiled in Copyright Criminals is Clyde Stubblefield. Never heard of him? I hadn’t either, even though he was James Brown’s drummer in the late 1960’s and early 1970’s and created many of the basic rhythm patters that have been used ever since not only in the funk-soul genre Brown helped create but on rap records and plenty of other places.
The first person who ripped off Stubblefield’s work without giving him either credit or royalties was James Brown; in the film Stubblefield (who’s still alive, performs at small clubs in the Detroit area and bills himself as “The Original ‘Funky Drummer,’” after a song in which Brown used his drum licks and paid tribute to him) said that he would frequently just jam a rhythm pattern, Brown’s bass player would join in, then his guitarists would come in and start playing licks on top of the rhythms that were taking shape, and finally Brown would come in, start singing along and making up words off the top of his head — and eventually this would become a full-fledged song, only Brown would take composer credit exclusively himself and not co-credit the musicians who had actually worked out the musical basis of the new song. Brown figured the musicians were being compensated by their regular salaries as part of his band and therefore never offered them credit or royalties — and neither did the companies that sold Brown’s records or published his songs, so Stubblefield isn’t getting royalties either from continuing sales of Brown’s old records or from the multi-million selling rap hits built around his drumming.
One of the strategies Franzen and McLeod use is to point out that many of the groups suing to demand royalties from records containing samples of their work themselves practiced earlier forms of sampling — like the Beatles (though apparently the lawsuits over the Beatles’ work are coming from their record company, EMI, and not from the surviving Beatles themselves or the estates of the dead ones), who built the track “Revolution #9” almost exclusively from the 1960’s technological equivalent of samples. They could have made a point detailing the history of sampling back even further — “Revolution #9” was based on a genre invented by French composers Pierre Schaeffer and Pierre Henry in the late 1940’s called musique concrète, in which they pieced together snippets of sound — taking advantage of the newly invented technology of magnetic tape — and created musical works by splicing these together and manipulating them electronically; like much of the rest of the avant-garde art world’s influence on the Beatles in their later years, musique concrète became part of their world via Yoko Ono, who was thoroughly familiar with it and encouraged John Lennon to experiment with its techniques.
Also, one of the most delightful parts of their film was strictly speaking not a sample at all; it was Little Roger and the Goosebumps’ legendary record “Gilligan’s Island Stairway,” their recording of the theme song from the Gilligan’s Island TV show sung to the tune of Led Zeppelin’s “Stairway to Heaven” — and a record that seemed bound for hit status until Led Zeppelin sued and got it taken off the market. The filmmakers here accompanied the Little Roger parody with a mash-up video overlaying the Gilligan’s Island credits with Led Zeppelin concert footage — and the audience (I think it’s safe to assume that I was the only person in that room who had actually heard “Gilligan’s Island Stairway” before) reacted to the song with the same admiration for the band’s audacity that I did when I first heard it in 1979.
Franzen and McLeod could have bolstered their everybody-does-it argument by referencing a copyright controversy that involved Led Zeppelin at the other end — the song “Whole Lotta Love” on their first album, which they claimed was their rewrite of an old blues song in the public domain. Along came Willie Dixon, pointing out — and proving in court — that it wasn’t a public-domain song; he had written it himself and it was copyrighted. The final settlement simply took Jimmy Page’s and Robert Plant’s names off the composer credits of the Zeppelin version and put Willie Dixon’s on — and while most of the resulting royalties went to Dixon’s publisher, Arc Music (a subsidiary of Chess Records), Dixon made enough from the song to be able to live a comfortable existence for the rest of his life.
I’ll admit that I’d probably be a lot more sympathetic to the concept of sampling if I had more affection for the rap genre with which it is most closely associated — as it is, my distaste for the aggressive ugliness of rap as a sound and its gravitation towards socially unconscious subject matter (the days when Public Enemy would sample a Malcolm X speech have long since given way to the modern-day rappers boasting about how much money they make, how much bling they wear, how many women they’ve fucked, how many Gays they’ve beaten up and how many “gangstas” they’ve killed) has made me rather prejudiced against them. I’ll also acknowledge that I’ve made some pretty sour jokes about D.J.’s that I’m at least partially willing to take back now that I’ve seen this film — I once said that calling a D.J. an “artist” was like calling the guy who hung the Mona Lisa on the Louvre wall an “artist” — and that now that I’ve seen the art of classic D.J. sampling with turntables “up close and personal” in this film, I’m ready to concede that it takes a level of skill that has at least some commonality with playing a musical instrument. (At the same time I still admire the late Rahsaan Roland Kirk for not needing to sample; if he wanted, say, a Charlie Parker lick for one of his compositions, he had the musical talent and skill to play it himself.)
It’s interesting to note — as this film does in passing — that turntable sampling had become such an essential tool of rap that when the copyright holders started coming down hard on the samplers, some of them responded by recording their own drum and bass lines, then mastering them to vinyl so the D.J.’s could “sample” these new, purpose-made recordings and thereby get the same sound while being in the clear legally. The most valuable insight into Copyright Criminals is it shows not only how outdated traditional copyright law has become in the digital age (especially now that digital technology has “democratized” sampling even further — now you don’t even need the skill to handle vinyl records on a pair of turntables; you can input sounds, chop them up and manipulate them on a computer) but also how traditional copyright law has become in many ways an impediment to creativity rather than an encouragement of it — just as the vast extension of patent rights to scientific discoveries has slowed research rather than sped it up (despite Big Pharma’s claim of “no patents, no cures,” the fact is that academic researchers are now scared to go near certain lines of research for fear they’ll accidentally infringe on a patent held by another researcher or a pharmaceutical company and get themselves sued), especially as the major media corporations pursue ever more restrictive copyright laws and seek ultimately either to abolish the concept of “fair use” altogether or so restrict it that basically corporations have perpetual ownership of content and anyone using it has essentially to rent it from them.
My solution would be to restrict the total term of a copyright to 50 years — the good-sense solution that most European countries adopted but is now under attack there (there’s a major push on the British parliament to amend their copyright laws to match the bloated terms of U.S. copyrights — and I suspect that just as the push for perpetual copyrights in the U.S. was masterminded by the Walt Disney company, which didn’t want Mickey Mouse coming into the public domain, so the current pressure in Britain is probably coming from EMI to make sure that the Beatles’ recordings don’t start entering the public domain in 2012, as they would under current British law) — and to institute compulsory licensing as the solution to things like sampling. Much use of copyrighted material is already covered by compulsory licensing — particularly the performance of phonograph records on radio and the public performance of copyrighted songs (one person interviewed in Copyright Criminals points out that if you just want to cover “Stairway to Heaven,” there’s an established body of law governing your right to do so and you know in advance exactly how much it will cost you, but if you want to rewrite or parody it, it has to be negotiated on a case-by-case basis and the copyright holder can either price it prohibitively or flat-out say no, you can’t do it at all — which means that Little Roger got screwed because they parodied someone without a sense of humor, while Steve Dahl got to release and have a hit on “Do Ya Think I’m Disco?,” his parody of Rod Stewart’s “Do Ya Think I’m Sexy?,” just because Stewart thought it was funny and let it go).
I personally think compulsory licensing is fair: it says to the copyright holder that you have the right to be compensated for use of this material but not the right to prevent it from being reused at all. And for the inevitable conflicts I’d recommend setting up a special “copyright court,” modeled on the arbitration panels the Screen Writers’ Guild and Screen Directors’ Guild set up to adjudicate who deserves credit on films multiple writers or directors have worked on — the courts would look at how much of a previously copyrighted work was used, how extensively it was sampled and how significant its use was (a James Brown sample whose sampler wanted us to hear it and go, “That’s James Brown!,” seems quite different artistically from one whose sampler was just using a vocal grunt as part of a broader texture and didn’t want it to be recognizable), and rule on what percentage, if any, of the income from the new work should go to the copyright owner of the original.