WHEN YOU HEAR THE MUSIC,
AFTER IT'S GONE, IT'S IN THE AIR

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Art of all genres copies the works of others to a point where certain techniques and compositional devices, once unique, become conventions. How many paintings within the schools of rennaissance, impressionist, cubist, abstract expressionist, etc. look sort of similar? Think of the standard grand finale in nineteenth century symphonies, the borrowing or folksongs by classical composers with no attribution to the composers of the songs. How many blues songs start with "I woke up this morning..." and use the same licks and chord progressions? How many rock songs use the same three chords played the same way and "c'mon baby" sung the same way. The chorus of Carol King's "You've Got a Friend" is a direct cop of Burt Bacharach's "Trains and Boats and Plains." Jazz solos are full of quotes (melodic fragments from other songs) to spice up the stew. Nobody seemed to care about borrowing other people's property until a bunch of African-American kids started pulling samples from old records for rap tracks. All of a sudden the pop music establishment was shocked. Songwriters and record companies smelled dollars and extorted artists for sampling a hiccup off a record.

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The general Real World rule for sampling is this: if somebody bites a sample off your record and you have a bigger lawyer than the borrower does, it's infringment. I'm a pro-capitalist more than an anti-, but this is a capitalism so out of control that it sucks the life out of everything in its path. At some point somebody is going to have to test America's intellectual property laws. Any multi-millionaire popArtistes out there game for the good fight? Any gangstas out there want to fuck the music police?

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This is the way I would propose drawing the lines on the sampling highway: Pieces of records, pictures and movies that are not the key compositional element of the original work should constitute fair use. End of story. In cases like Hammer's basing a whole song on a two-bar loop pulled from Rick James' "Superfreak" or P Diddy's looping The Police's "Every Breath You Take" as the bed for his song -- you have the key compositional elements of the original work being appropriated with little else in the track. Here are clear cases where clearance and a share of the copyright is appropriate. But sampling a James Brown scream, a random guitar or horn lick or a loop employed as one texture under many layers of new sound should surely be considered fair use. It should be treated much like a scrap of newspaper, cane from a chair seat, candy wrapper or movie ad in a multimedia piece hanging in your local museum.

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This is really the record industry and a few short-sighted artists deciding there's free money to be juiced out of a new medium. Really what's the difference between a guitar player copycatting another player's favorite lick and a turntablist pulling a chunk of that lick? The answer is: there is no difference except that the recording industry CAN beat you for the latter. The blanket they put on a huge well of creative talent should be the illegal act.

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On the other side: sample artists and turntablist composers are also responsible for staying on the ethical side of the line. One well known DJ whose work I like pulled a large uncut chunk of an Eric Dolphy solo with no attribution. This is lame. He should have given props where they're due or get a guy to come in and play the damn solo. What he also copped off the same disc was Dolphy's spoken statement, "When you hear music, after it's gone, it's in the air." This should be the last word -- the artist's ability is to pull the spirits from the air. The corporate inclination is to bottle the air and profit from what belongs to everybody. Artists must get paid for their work and at the same time have access to the materials that have always been available over the centuries -- works of other artists. It's in the air.

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Polar Levine
Editor, popCULTmedia
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