The debate on music sampling has finally reached Trinidad Carnival. TUCO, our carnival calypso/soca head body, is contemplating barring all songs containing sampled past soca/calypso from winning the Road March competition this year. The Road March competition btw, is the song voted most popular by the carnival revellers on Carnival Monday and Tuesday.
In my mind, there are three issues here:
What constitutes sampling creativity?
What I'm talking about here is sampling - not sampling like in the old days, with big fat Akai samplers and blinking lights, holding microphones out the window at passing cars to try to capture a strange effect... but either downloading loops or ripping them off of an already published cd.
My rhetorical question for you is this : if I take a song by Shadow, chop it into 4 measure segments, and then re-arrange them in a different order, am I entitled to call it MY song now? Can I sell it back to Shadow for inclusion on his next album or to a DJ for his next compilation? Not likely. What if I took those seperate elements (drums, bass, lead, etc) and put them together myself? Is it now my song? Again, not likely. Which is what it really comes down to - every artist should be obsessed with developing their own sound so as to stand out in the sea of mediocrity. More and more often these days, people aren't patient enough to learn how to actually write a song or can't afford to purchase the hardware that will enable them to do so, and they aren't patient enough to "pay their dues" and rather opt to just get someone else's kickass sounds and re-sequence them.
This is the pinnacle of instant gratification. I've played with these programs myself, and surely it gives you a warm fuzzy feeling to take the seperate elements and build them into a song. But I never kid myself into thinking that it's "my song" no matter how cool it is. Sure, I can play it for my friends and they'll go "wow!" but I am also honest enough with myself to know how much work that I put into it, and how much of the song is actually ME.
Interesting things can be done with samples - Machel Montano and Xtatic, (Animal Farm, With or without you) and Bungee Garlin (Soca Train) have both built credible careers out of sampling work. The trick is in the artistry that they put into the manipulation of those samples. They hack them from whatever audio source they can get and flip them around and do things that most sample newbies hadn't even imagined in order to produce their songs. They do not layer five different loops bought from a sample CD and then stamp their name on it.
Copyright issues?
The first step is to understand the relevant copyright issues. There are generally three copyrights in a musical recording:
1. Copyright in the musical work. This is generally owned by the musician who composed the song, or their music publisher;
2. Copyright in any lyrics. This may or may not be owned by the same person who owns the copyright in the musical works; and
3. Copyright in the sound recording of the musical work. This is generally owned by the person or company who paid for the recording, often the record company that released the sound recording.
Copyright means that the owner has a bundle of exclusive rights, including the right to make reproductions of all, or a substantial part, of that musical work, lyric or sound recording. This means that if you copy, without permission, a ‘substantial part’ of a musical work, lyric or sound recording, copyright in which is owned by someone else, you have infringed that person’s copyright.
What is a ‘substantial part’? Can it be a short sample of a few notes? This is the million $$ question, and the aspect of sampling that generates the most heat and light amongst lawyers. A rough rule is that if the sample is something that is recognisable, and it is appealing enough for you to want to use, it is probably substantial enough to attract copyright protection. The length of sample is not necessarily relevant - it is quality that matters, not quantity.
Generally record companies are nervous about taking these matters to court because of cost and uncertainty, because they do not want the court to set an unfavourable precedent, and because they may have many artists themselves who use samples.
What should you do?
If you want to use a sample in a song you may need to get that sample cleared. This means contacting the relevant copyright owner and requesting a licence (permission) from them to allow you to use the sample.
You will need to make your own judgment according to the circumstances, but the factors you will need to consider in deciding when permission is required are the distinctiveness of the sample, the prominence of your use of the sample, and the extent of your use. Obviously, greater caution is required for a global release, than if you are getting 500 copies made to sell at carnival gigs, even though the copyright issues are the same.
If you are dealing with a record company, they always insist on a warranty that your recordings will not infringe anyone else’s copyright, and an indemnity from you stating that you will be responsible for any losses they may suffer if you breach your warranty. Sometimes you can negotiate with the record company so that they will pay the costs of sample clearances (although these costs will generally be recouped by the record company from your future royalties).
When should you seek permission? It is better to do it at a time when you can remove the sample if you can’t reach agreement with the copyright owner. If the record has already been released, and the copyright holder realises they have got you over a barrel, you can expect to pay accordingly. And there is also that old music lawyers’ saying — ‘first the hit, then the writ’. On the other hand, your request will alert the other party to your use of the sample when it might have otherwise gone unnoticed. If they refuse to grant you a licence, and you use the sample anyway, this may go against you later when you may wish to argue that a clearance was not necessary as the sample was not substantial. Again, you will need to make your own judgment according to the circumstances.
Securing a licence
The first step is to determine who the relevant copyright owner is. If you use a sample of a recording you will need to obtain permission from the owners of the musical work, the lyrics (if relevant) and the sound recording. If you re-record part of the musical work yourself you will not need to clear this with the owner of the sound recording. Remember that you may be dealing with two separate parties, generally a record company and a music publisher, in relation to the one sample.
Organisations such as COTT may be able to assist you in tracking down the relevant parties. There is no standard fee in relation to sample licences. It is completely a matter for negotiation between the parties. Payment can be a flat fee, a royalty or a combination of these.
Generally you will require a non-exclusive licence, in perpetuity, throughout the world. If you wish to ensure that no-one else will be granted permission to use the sample, you may seek an exclusive licence, although this may be difficult to obtain.
It is very important to make sure that you are dealing with the right person - that is, that they are actually entitled to grant you the licence. It is essential that you must, as part of the licence, obtain a warranty from them that they own all copyright in the material that they are licensing to you and that the licence will not infringe the rights of any third party. They must also indemnify you against any losses that you might suffer as a result of their breach of this warranty. Finally, make sure you have got original copies of the paper work, signed by all parties, stored in a safe place for future reference if necessary.
Channelling the Road March vote?
I don't think that it is in TUCO's best interests to narrow the Road March Race. In effect they want to tell people what to dance to. This is what will happen. The popular songs will play on the road and some unknown soca bard will win the Road March Title and TUCO will revert the rules next year.
Everyone from P. Diddy's Every breath you take, to Destra's Bonnie and Clyde has made it through samples. I enjoy a song containing samples as much as a "pure" original once its done well. Let me decide what I like, let the artist decide what he/she wants to create and let the people decide if its good enough for them...or not.
/ok..ok I'll get off the soapbox now....
Some Past Road March Titles
1997
Machel Montano & Xtatik, Big Truck
Superblue, Barbara
Tony Prescott & Atlantik, All Aboard, Ship Ahoy
1998
Wayne Rodriguez & Xtatik, Footsteps
Machel Montano & Xtatik, Toro Toro
David Rudder, High Mass
1999
Sanell Dempster, Blue Ventures The River
Kurt Allen, Dus Dem
Atlantik, Who to Blame
2000
Superblue, Pump Up
Iwer George, Carnival Come Back Again
Atlantik, 6 Days
2001
Shadow, Strangers
Peter C. Lewis & Xtatik, Tay Lay Lay
Destra Garcia, Tremble It
2002
Naya George & Invasion Band, Trinidad
Iwer George, Gimme a Bligh
Ronnie McIntosh & Atlantik, Start to Run
2003
Fay-Ann Lyons, Display
Destra Garcia & Machel Montano, Is Carnival
Iwer George, Ah Home
2004
Shurwayne Winchester, Look De Band Coming
Destra Garcia, Celebration aka Bonnie & Clyde
Machel Montano, Craziness
