Auditory Archaeology: Clearing the Name of Digital Sampling Manisia Larkins Howard University 2012

If one were to turn on a radio or television station that featured popular music, aside from the many cultural images that would assault their eyes, they would be hearing a layered cornucopia of genres and artists, so seamlessly collided as to render their bare elements unrecognizable. This homogenized sound is the result of digital sampling. Sampling is often described as a technique or method that digitally utilizes previously recorded music as part of anothers recording or composition. First developed by hip hop DJs in the 1970s who soon became rap producers of the 1990s, sampling is also described as lazy, unimaginative and, most poignantly, stealing. Producers who sample today, such as Dr. Dre, The Neptunes and Kanye West, are therefore subjected to a series of difficulties. They are faced with only a few options for their work: to create freely and be sued, to have their samples cleared and spend a large percent of their production budget, or to simply be stifled in their creative process. Since only the first of the three options is desired by the artist, some investigation and questioning of the paradigm is necessary. The intention of this essay is to exhibit samplings inventive qualities. History, methodology, and analysis will be applied to present examples and evidence that illustrate the intricacy and innovation of sampling to support the concept of it being a legitimate musical art form. [DJ culture] was a culture of borrow and take because it was a culture that was founded on a lack of resources, says Babbito Garcia, also known as DJ Cucumberslice.1 Hip hops story is often told with a clear chronology of the disenfranchisement and marginalization of its

F r a z e n , B e n j a m i n , " C o p y r i g h t C r i m i n a l s , " I n d e p e n d e n t L e n s , We b , h t t p : / / m o v i e s . n e t f l i x . c o m / Wi P l a y e r / C o p y r i g h tC r i m i n a l s .
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pioneers, African American people. The black struggle is oftentimes given as a direct correlative to the emergence of hip hop, as it is with the blues and jazz. The history is sometimes traced from the Black Panther Movement, but it is even more intriguing to look further. During the Reconstruction Era, an era of many broken promises, is when it became clear that financial equity amongst the two races would be an uphill battle. Elijah Muhammed observes, The slaves...started not only without land and the money to purchase it but few avenues open to earn and save money. Ownership of producing land is a prime and necessary part of freedom.2 The lack of land or opportunity to generate an income, and the subsequent years of disenfranchisement, created the experience of young, black youth who eventually became DJs. Designating creation as a result of oppression can become problematic, however, when the application of aesthetic and culture is not taken into account. DJ Kool Herc, for example, was not forced by his oppressive environment to isolate percussion beats when he deejayed in the early 1970s, he chose to do it. 3 Preference, of course, is essentially the manifestation of ones mentality which is produced from cultural aesthetic. DJ Kool Herc, as well as many other DJs, created their mixes operating under the influence of the African American consciousness. This consciousness did (and still does) include the experience of having little to no resources for conventional creativity. However, the black psyche also contains an inherent reverence for music, art and those other things which come from the spirit or soul of humans or from God. There is so much reverence, that these experiences are just that, experiences that cannot be

Muhammed Elijah , Message to the Blackman in America, (Elijah Muhammed, 1965), 37.
2

Schloss Joseph Glenn, Making Beats: The History of Sample-Based H i p H o p , ( U n i v e r s i t y o f Wa s h i n g t o n , 2 0 0 0 ) , 4 2 .

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owned or bought by any one person. African Americans, obviously, have their African ancestors to thank for such a notion. Chuck D explains, We kind of look at music as an assemblage of sounds, and you cant really copyright a sound. Sounds, waves that exist in nature, when viewed through the African aesthetic, are not marketable products. Who invented harmony? Harmony exists in nature. We are harmonic beings. We are rhythmic beings. Black Americans didnt invent harmony; neither did Europeans, asserts Nicholas Payton, a renowned jazz trumpet player and music blogger. 4 Conversely, European influence has brought the public things like the patent, and public domain and copyright law all of which assert that invention or creation automatically implies ownership. Invention: to produce (as something useful) for the first time through the use of the imagination or of ingenious thinking and experiment.5 If we examine gravity, for example, one will find that this concept already existed. All things on Earth followed the laws of gravity long before Issac Newton. Moreover, Sir Isaac Newtons predecessors include Aristotle, Brahmagupta (a 7th century, Indian mathematician), and Galileo Galilee.6 The fact that many are not aware of these other inventors can be attributed to the ideology of ownership. The ideological antithesis is exemplified in DJ culture and the sampling phenomenon.

Payton Nicholas , "On The European Influence In Black American Music," The Cherub Speaks (blog), August 02, 2012, http:// nicholaspayton.wordpress.com/2012/08/02/on-the-europeaninfluence-in-black-american-music/.
4

Merriam-Webster Online. Springfield, MA: Merriam-Webster, Incorporated, 2012. s.v. "Invent: Definition." http://www.merriam-webster.com/dictionary/invent (accessed November 11, 2012).
5

Edward Grant, The Foundations of Modern Science in the Middle Ages, (Cambridge: Cambridge Univ. Pr., 1996), pp. 60-1.
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We can easily see how both the lack in the black community and the attitude of natural equity work simultaneously to bring us what we hear on hip hop records from the 1970s on. However, sampling was first used to present sounds heard in hip hops most authentic moments to a live audience. Early hip hop labels, such as Sugar Hill...relied on live bands and drum machines to reproduce the sounds that were heard in Bronx park and recreation centers...there was a conscious effort on behalf of the record company to capture the essence of these performances, explains. 7 Hip hop was an organic occurrence, that had to be lived and experienced. This is another reason why artists of the genre are perplexed by the control of the music, simply because the music encompasses the lifestyle. Digital sampling, as opposed to recreating, offered DJs an opportunity to copy the experiences and reference them again. Digital audio sampling began as a way for keyboardists and composers to record, transpose, or rhythmically alter pieces of other recordings. The introduction of innovative drum samplers such as the SP-12 allowed DJs to isolate the break, an element that is still integral to sampling. These breaks could come from any number of sources, one of them being James Browns star drummer, Clyde Stubblefield. Stubblefield, who is to funk what Louis Armstrong is to swing, describes the creation of Funky Drummer, a song that would be one the most digitally sampled songs of hip hop. When I sit down, I just start playing a beat. Something simple, and then everybody joined in and then Brown came in and put the lyrics to it...It was called Funky Drummer.8 Stubblefields improvised beat became a base for many songs to come the following decade.

R u s s e l A . P o t t e r , S p e c t a c u l a r Ve n a c u l a r s , ( N e w Yo r k : S t a t e U n i v e r s i t y o f N e w Yo r k , 1 9 9 1 ) , 4 5 - 4 6 .
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Public Enemy was among the artists who heavily sampled Funky Drummer. Chuck D, Hank and Keith Shocklee and Eric Vietnam Sadler as the Bomb Squad created music that resonated with as well as challenged listeners. I wanted to do some things that were not musical in music, says Hank Shocklee. He goes on to describe how each member of the group would add varying elements to the overall product. ...And so were all together, and theres this one little moment that it all just meshes together in a nice vibration. 9These different features included drum breaks, melodies, harmonic passages and even spoken word/speeches. Too black, too strong, from Malcom Xs Fire and Fury Grass Roots Speech are featured in Bring the Noise. 10The group obviously wanted to cause some kind of socio-cultural fuss. Keith Shocklee explains: Public Enemy was never an R&B based, runnin-up-the-charts, gettinplayed-all-day-on-the-radio group...It was basically a thrash group, a group that was very rock n roll oriented...because the parallel we wanted to draw was Public Enemy and Led Zepplin. Public Enemy and the Grateful Dead...We decided that we wanted to communicate something that was gonna be three dimensional-something that you could look at from many sides and get information as well as entertainment. 11

B e n j a m i n , F r a z e n , " C o p y r i g h t C r i m i n a l s , " I n d e p e n d e n t L e n s , We b , h t t p : / / m o v i e s . n e t f l i x . c o m / Wi P l a y e r / C o p y r i g h t C r i m i n a l s .
9 10

"Who Sampled: Exploring the DNA of Music." Accessed November 1, 2012. http://
Mao Chairman , Behind the Boards with the Bomb Squad , .

www.whosampled.com/sample/view/26078/Public Enemy-Bring the Noise_Malcolm X-Fire & Fury Grass Roots Speech (Side Two)/.
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The Bomb Squad, in their utilization of samples to draw inter-genre parallels, revolutionized the deliberate sample. Below, one can see just how deliberate their sample process was.

Above is the track sheet for Night of the Living Baseheads a popular Public Enemy song. Each sample, identified by name, is carefully designated to a number of measures, or bars. This track sheet can be easily identified as a arrangement. Just as performers of jazz and pop tunes realign chords and rhythms and reposition song form, The Bomb Squad and like hip hop artists reorganized many tunes and compositions to create one song. Four to five second bits were placed strategically to create a empowering, relatable and musically transcendent message for black youth. There is no question that this is music, but whether or not its legitimate music is a loaded issue. Sampling [allows you] simple and easily to take someone elses lifes work...its extraordinarily lazy, asserts recording engineer Steve Albini. 12To claim that

B e n j a m i n , F r a z e n , " C o p y r i g h t C r i m i n a l s , " I n d e p e n d e n t L e n s , We b , h t t p : / / m o v i e s . n e t f l i x . c o m / Wi P l a y e r / C o p y r i g h t C r i m i n a l s .
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the in-depth understanding of turntables, sampling machinery/technology, the implications of the music of James Brown, Aretha Franklin and other such influential artists along with the rhythmic and harmonic intricacies of the music is lazy represents a lazy opinion. Legality, though, is a complex issue that does not consider how hard a producer worked on a track. Coming from lawyer Anthony Bermann, If you use one note of another persons song, its copyright infringement. 13As defined by the U.S. Copyright Office: As a general matter, copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner.14 This crime is an automatic result of the Copyright Act of 1976. Under this act, samples have to be cleared by the original artist or the artists estate. The process can cost hundreds of thousands of dollars, which means more money goes into the pocket of the recording and distribution executives. The increased amount of money in hip hop and the Copyright Act of 1976 strategically coincide. A way to gain mass revenue from the new musical phenomenon was needed when the possibilities were revealed. De La Soul, another revolutionary pro-black hip hop group of the late 1980s, fell victim to the Copyright Act. Live Transmitting from Mars, a song on their debut album, Three Feet High and Rising, sampled twelve seconds of a much older song, Said Vaidhyanathan explains:

B e n j a m i n , F r a z e n , " C o p y r i g h t C r i m i n a l s , " I n d e p e n d e n t L e n s , We b , h t t p : / / m o v i e s . n e t f l i x . c o m / Wi P l a y e r / C o p y r i g h t C r i m i n a l s .
13

U.S. Copyright Office, "Definitions." Accessed November 11, 2012. http:// www.copyright.gov/help/faq/faq-definitions.html.
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Several sampling cases were settled out of court before December of 1991, postponing the inevitable guidance a judicial decision would bring. Nonetheless, the publicity surrounding these cases made older artists hungry to cash in on the potential sampling licensing market. A song that had ceased bringing in royalties decades ago could suddenly yield a big check. In 1991 Mark Volman and Howard Kaylan of the 1960s pop group the Turtles sued the rap trio De La Soul for using a twelve-second piece of the Turtles song You Showed Me in the 1989 rap track Transmitting Live from Mars. Volman and Kaylan sued for $2.5 million, but reached an out-of-court settlement for $1.7 million. De La Soul paid $141,666.67 per second to the Turtles for a sliver of a long-forgotten song.15

'Sampling is just a longer term for theft, says Mark Volman, Turtles singer.16 Despite the fact that You Showed Me, is no more stolen in Live Transmitting From Mars, than any other song with a similar or exact chord structure, De La Soul got reprimanded for including it. The alternative to such a fate is to have samples cleared. The process begins with the producer mapping out all the the samples used in their work. To begin with, there is a list of artists they cannot sample from, either artists who refuse to have their work sampled or those who the producer could not afford. Once the samples have been chosen, S a i d Va i d h y a n a t h a n , C o p y r i g h t s a n d C o p y w r o n g s : T h e R i s e o f I n t e l l e c t u a l P r o p e r t y a n d H o w i t T h r e a t e n s C r e a t i v i t y , ( N e w Yo r k , N e w Yo r k : N Y U P r e s s , 2 0 0 3 ) , 1 4 1 .
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D a v i d B r o w n e , " N o F r e e S a m p l e s ? , " E n t e r t a i n m e n t We e k l y ( b l o g ) , J a n u a r y 2 4 , 1 9 9 2 , h t t p : / / w w w. e w. c o m / e w / a r t i c l e / 0 , , 3 0 9 2 8 4 , 0 0 . h t m l .
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a detailed report to both the copyright owner or publisher, the record label and to the original artist. Here, of course, is where the substantial costs come into affect, depending upon the popularity of the song or artist. Evidently, such constraints stifle the creativity of both the producer and rapper. The clause of Fair Use is the only defense against the pain of sample clearing. The U.S. Copyright Office has this to say of Fair Use: The concept of "fair use" is not susceptible to exact definition. Generally speaking, however, it allows copying without permission from, or payment to, the copyright owner where the use is reasonable and not harmful to the rights of the copyright owner....It refers to "purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research" and sets out four factors to be considered in determining whether or not a particular use is fair. These are: 1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; 3. The nature of the copyrighted work; and 4. The effect of the use upon the potential market for or value of the copyrighted work.17

U.S. Copyright Office, "General Guide to the Copyright Act of 1976." Last modified 1977. Accessed November 1, 2012. http://www.copyright.gov/reports/guide-to-copyright.pdf.
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For the purpose of comment and criticism and for being [non] harmful to the rights of the copyright owner nearly every sample of De La Souls and other persecuted producers could be justified as fair use. If musicians such as The Turtles or Gilbert O Sullivan [who sued Biz Markie for sampling his popular 70s song, Alone Again (Naturally)] examined intention or message with earnest rather than greed, then the usage might have been fair after all. Taking fair use and the Copyright Act of 1976 out of the picture, isnt sampling protected under the First Amendment, which grants of the right to freedom of speech? Whether or not the Copyright Act is constitutional in reference to its constraints on digital sampling can be determined by examining types of music or even other modes of entertainment that isnt being stifled by copyright infringement laws. Jazz music, a genre that requires much practice and skill is rooted in references and stealing. Students studying jazz are taught to improvise by learning and performing already recorded solos. When learning how to arrange and compose tunes, students analyze the chord structure and form to expand their musical vocabulary to create new tunes and rearranged versions. Stealing is what you do to learn the idiom. Photography, a medium of artistic expression is considered not only legitimate, but at times, genius. As an art form, it has progressed as technology has, with more opportunities as time goes on. Its predecessor, painting, is a medium that is still revered as a skill. However, a photographer applies conceptual skill to their work, as well as

technical skill. You have different photographers taking certain scenes and reconstructing them digitally, explains Paul Miller (also known as DJ Spooky).18 Walt Disney had very few original ideas for movies. Disneys first princess, Snow White, was originally a sixteen year old girl from the German story, Schneewittchen, published by the Brothers Grimm. Along with her age, many details of Snow Whites tail was altered for the 1937 family feature.19 This is also the case of The Little Mermaid, The Lion King and Mary Poppins. In the case of the latter, there was an incredible breach of creative license; the original writer P.L. Travers was left devastated at the end of the premier of the film. Moreover, Disneys first documented animated cartoon, Steamboat Willie, was a recognizable homage to Steamboat Bill a Buster Keaton film. Walt Disney, even long after his death, is still revered as a genius rather than a thief. The intention of this paper is not to deem Walt Disney as a thief or to label any of the aforementioned mediums of expression as theft. Such works are considered to be in the canon of contemporary culture. Sampling deserves to be included in the group of respected forms of artistic demonstration. Culture is described by Sekou Toure as: ...material and immaterial works of art and science, plus knowledge, manners, education, a mode of thought, behavior and attitude accumulated by the people both through and by virtue of their struggle for freedom from the hold and

B e n j a m i n , F r a z e n , " C o p y r i g h t C r i m i n a l s , " I n d e p e n d e n t L e n s , We b , h t t p : / / m o v i e s . n e t f l i x . c o m / Wi P l a y e r / C o p y r i g h t C r i m i n a l s .
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Hart, . GoodReads, "The True Origins and History of Snow White and the Seven Dwarfs Origins of Snow White." Last modified 2010. Accessed November 13, 2012. http:// www.goodreads.com/story/show/60644-the-true-origins-and-history-of-snow-white-and-theseven-dwarfs.
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dominion of nature...the result of their efforts to destroy deviationist politicssocial systems of domination and exploitation through the productive process of social life.20

Culture is a collage. It is a amalgamation of the perceptions and emotions of our experiences as humans. Whether DJ sampling came as another medium to express the tyrannies of the powers that be or if its used to manifest the African American psyche, it shouldnt be seen as a sinister way to make music. Sampling should be seen as representation of the remix culture we live in, taking bits and pieces of all its people, from all perspectives.

To u r e S e k o u , " A D i a l e t i c a l A p p r o a c h t o C u l t u r e , " T h e B l a c k Scholar, 1, no. 1 (1969): 11-26, (accessed October 12, 2012).
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Works Cited Browne, David. "No Free Samples?" EW.com. N.p., 24 Jan. 1992. Web. 18 Nov. 2012. <http:// www.ew.com/ew/article/0,,309284,00.html>. Copyright Criminals. Dir. Benjamin Frazen. Public Broadcasting Coporation, n.d. Web. <http:// movies.netflix.com/WiPlayer/CopyrightCriminals>. Elijah, Muhammad. Message to the Blackman in America. Chicago: Muhammad Mosque of Islam No. 2, 1965. Print. Grant, Edward. The Foundations of Modern Science in the Middle Ages: Their Religious, Institutional, and Intellectual Contexts. Cambridge: Cambridge UP, 1996. Print. Hart, Brad. "The True Origins and History of Snow White and the Seven Dwarfs - Origins of Snow White." GoodReads. N.p., 11 Feb. 2010. Web. 18 Nov. 2012. <http://www.goodreads.com/ story/show/60644-the-true-origins-and-history-of-snow-white-and-the-seven-dwarfs>. "Invent." Merriam-Webster. Encyclopedia Britannica, n.d. Web. 11 Nov. 2012. <http:// www.merriam-webster.com/dictionary/invent>. Payton, Nicholas. "On The European Influence In Black American Music." Web log post. The Cherub Speaks. N.p., n.d. Web. 10 Nov. 2012. <http://nicholaspayton.wordpress.com/ 2012/08/02/on-the-european-influence-in-black-american-music/>.

"Public EnemyBring the Noise." WhoSampled. N.p., n.d. Web. 1 Nov. 2012. <http:// www.whosampled.com/sample/view/838/Public%2520Enemy-Bring%2520the %2520Noise_Marva%2520Whitney-It%27s%2520My%2520Thing/>. Schloss, Joseph Glenn. Making Beats: The Art of Sample-based Hip-hop. Diss. University of Washington, Dept. of Ethnomusicology, 2000. N.p.: n.p., 2000. Print. Sekou Toure. The Black Scholar Vol. 1, No. 1, The Culture of Revolution. (November 1969), Pp. 11-26 Published By: Paradigm Publishers Article Stable URL: Http://www.jstor.org/stable/ 41163403 United States. U.S. Copyright Office. General Guide to the Copyright Act of 1976. N.p.: n.p., n.d. Web. 1 Nov. 2012. "U.S. Copyright Office - Definitions (FAQ)." U.S. Copyright Office - Definitions (FAQ). U.S. Copyright Office, n.d. Web. 11 Nov. 2012. <http://www.copyright.gov/help/faq/faqdefinitions.html>. Vaidhyanathan, Siva. Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity. New York: New York UP, 2003. Print.