Stems Without Roots: The Inconsistency of Clearing Samples And How to Fix It
In 2021, leading up to his fourth studio album, LP!, rapper JPEGMAFIA dropped “HAZARD DUTY PAY!” on YouTube with one, powerful line in the description: “couldn’t clear it. :(“.
Although this line was eventually removed upon the official Spotify release of the track, these three words serve as the bane of independent music artists within hip-hop and beyond. Sampling takes a piece of one song to turn it into something new, and was considered a sign of respect when it was popularized in hip-hop, as stated by Sebastian Mahul. Unfortunately, copyright law disagrees - rather, it doesn’t mention anything remotely close to sampling, leaving it to the courts to fight over the issue for decades.
What needs to be done is to include sampling as a protected practice within copyright law. This would back up decades of culture surrounding the art, and allow for full-fledged creativity free of any restrictions. It would be a win for independent artists, and a win for the music landscape.
Though, how did we get to this point? Why should we care about sampling? And, how do we fix this issue?
How Did We Get Here?
Back in the 1970s, a faraway land known as the Bronx began to innovate in the DJ scene, according to a Washington Post article by Artur Galocha. They incorporated “breaks” of the most danceable parts of other songs and mixed them around using a crossfader and turntables.
It was only in the 1980s that the electronic sampler became more widespread due to price cuts, but the process of sampling was still intensive. Nonetheless, the practice spread across hip-hop, R&B and electronic music. You’ve probably heard samples like this in many, many songs.
Various artists made their album debut using samples, such as 3 Feet High and Rising by De La Soul, Illmatic by Nas, and Endtroducing..... by DJ Shadow - the last of which being the first ever album made only with samples. Albums don’t have to sample other songs, either; Madvillainy by Madvillain, a collaboration between rapper MF DOOM and hip-hop producer Madlib samples various TV shows and movies to set the scene of each track. It generates a nostalgia trip for the listener, complemented by MF DOOM’s prose.
As beloved as these albums are, it didn’t take away from the elephant in the room: the legality.
De La Soul, in particular, had one of the greatest controversies. In 1989, the L.A. Times reported that the group was sued for $1.7 million by former members of The Turtles for their use of a four-bar sample on “Transmitting Live from Mars.” This revealed a myriad of uncleared samples on the album, preventing the LP from receiving an official streaming release until 2023, according to a BBC report.
“The reason there have been very few lawsuits on this issue is how can you put a value on a second or two of someone else’s music in a four-minute song,” as Evan S. Cohen, attorney representing The Turtles, said to the L.A. Times.
This lawsuit was the first of many in a tidal wave of legal cases, trying to interpret this new practice under an outdated law. One of the most influential of these cases was the federal circuit case Bridgeport Music, Inc. v. Dimension Films (2005), ruling against the practice of sampling by interpreting it as a “physical taking,” thus requiring a license.
Although fair use can be claimed when sampling, it’s primarily used as a defense in the event of a lawsuit, and it isn’t evident what is considered fair use. Courts haven’t agreed on how much can be taken legally; anything from five minutes to a single note could be an illegal sample to a court. So, the best course of action is to change the law, rather than change the courts’ minds.
But… Why Should We Care?
According to a Tracklib report in 2019, 15-25% of Billboard-charting songs contain samples. However, the implications of the legal gray area on sampling extend beyond the most popular artists. If an independent artist doesn’t sign to any of the big three record labels - Universal, Sony or Warner Music Group - there is no guarantee they can get a license for a single sample without these music labels’ resources.
The process for any musician to clear, or gain a license for, a sample is similar to walking a tightrope. Adam C. Freedman demonstrates this best by describing the do’s and don'ts of sampling. Any amount sampled is subject to a lawsuit; uploading a song with samples even without monetization is subject to a lawsuit; quoting lyrics is lawsuit-able, and; copyrights last a whole seventy years after its author dies.
As a result, a culture of fear is formed. Some fear legal action and thus hold back on using samples they can’t license. On the other hand, some may upload their songs anyway, assuming they’ll fly under the radar. In both cases, there is a risk to doing something that makes up entire genres.
If you are an independent musician within hip-hop, R&B, electronica, or just a person that likes to mess around in FL Studio, you can agree that creativity is important to standing out, and sampling is a part of that. Protecting sampling protects creativity - anyone can copy a part of another song, but the methods in which artists chop, splice, and otherwise alter that sound clip creates something new out of something else.
What Can We Do About It?
Dan Charnas, a hip-hop journalist and music label executive, points out a possible leverage point. The legality behind re-recording songs is clear: you pay a set amount by law, gain a compulsory license, and now you can play “Baby Shark” to your heart’s content, even being able to make some changes. Yet, no such system exists for taking parts of that same song.
“The landscape is far too precarious for creators,” Charnas writes in a Slate article. “We need two things: a clearer, broader conception of fair use and, for everything else, an expanded compulsory license law.” In other words, expanding fair use and a law that already exists will prevent scenarios where artists feel pressured to clear even the most miniscule parts of songs.
It can even be as simple as borrowing existing frameworks in other types of copyright. John S. Ehrett, J.D., suggested an “attribution-oriented” approach, where the artist gives credit to the original songs in all commercial materials. Books do it, research journals do it, yet there’s nothing in copyright law that enforces the practice for music. If all it took to clear a sample was paying a set amount and adding “(samp. [Artist’s Name])” to the end of a song, there wouldn’t be many copyright issues.
I believe freelance journalist Chal Ravens put it best when she wrote, “Music is ambiguous: is it mostly a product to be produced and enjoyed, or is the creation of it the most important thing?” To that I say: without a product, there’s no music. As new ways of sampling develop, most notably the technology to extract “song stems” from existing songs, there needs to be roots within our legal system to ensure an environment for growth. Only musicians have the power to change this through our representatives. Without any action on sampling, music culture will always live in the shadow of music labels.