Tedium - The Lines Blur Further 🎹

Today in Tedium: I think, in starting this piece about sampling, we need to talk about a song that doesn’t have a single sample, but has probably done more to reshape the discussion about music and copyright in the 21st century than any other. That song? “Blurred Lines,” a tune that Pitchfork recently described as a “harbinger of doom.” The vibes around Robin Thicke’s collaboration with Pharrell and T.I. grew increasingly problematic over time—creating huge personal problems in Thicke’s life, and business problems for everyone involved with the track. One of those problems came from its point of inspiration, Marvin Gaye’s “Got to Give It Up.” The fact that, musically, it borrowed so many ideas from the bass-driven, chatter-filled recording turned into a huge liability for the recording industry as a whole, as Gaye’s estate sued—and won. Now, it’s become increasingly common for pop songs to preemptively offer credit to artists any time a song seems to directly borrow from a source too aggressively—and arguably has led to a huge push by publishing companies to buy out name-brand artists. But before “Blurred Lines” came along, sampling set the stage for famous artists (or more likely, their estates) to take a litigious stance towards new generations of musicians. As artificial intelligence promises to bring a fresh new stage to this discussion, it’s worth discussing why sampling created this arms race in the first place. Will the record industry finally meet its match in artificially generated hip-hop? (And is that a bad thing?) Today’s Tedium considers a big change in music. — Ernie @ Tedium

P.S.: A note to Tedium subscribers—we are changing our long-running format starting next week, and will be running two smaller pieces during the week, along with one long-form piece that will run on Fridays. (We will likely publish one of our shorter pieces on Wednesday, but this is our final Saturday issue.) More information on the planned change over this way.

Robin Thicke’s court battle with the Marvin Gaye estate is just the latest salvo in a long battle in the music industry.

The technical roots of what (eventually) became a legal problem

If you want to figure out why the estate of Marvin Gaye was able to do such damage to modern-day songwriting, you have to go all the way back to the player piano. Before computers, before tape, even before 78s, player pianos threatened to disrupt the livelihoods of composers; simply put, manufacturers weren’t paying for the composers’ songs.

It was a big enough issue that the Supreme Court got involved, and much like many other decisions involving emerging technology and the rights of creators, the court arguably biffed it, ruling in 1908’s White-Smith Music Publishing Co. v. Apollo Co. that mechanical reproductions did not represent copyright infringement.

“These perforated rolls are parts of a machine which, when duly applied and properly operated in connection with the mechanism to which they are adapted, produce musical tones in harmonious combination,” the ruling stated. “But we cannot think that they are copies within the meaning of the copyright act.”

A pile of player-piano rolls. (Mr_Tom/Flickr)

This decision led Congress to quickly change laws around mechanical production while creating something much more sustainable—a law that not only required payments for mechanical copying, but allowed anyone to copy anyone else’s song, a strategy explicitly designed to prevent attempts to monopolize access to music catalogs. As Slate noted in 2014, this set the stage for cover songs in all their fascinating and messy forms, but also made it possible for royalty systems to gradually emerge.

Over time, these royalty systems started to get complex—in part because the technology started becoming more complicated than mere player pianos. The law got more complicated, too.

Biz Markie’s humorous cover for All Samples Cleared!

Artistic innovation meets legal conflict

By the end of the 1980s, sampling was having a significant impact on the artistic medium of hip-hop. Early collage-driven samplers like Double Dee and Steinski gave way to mainstream acts like The Beastie Boys and De La Soul borrowing from these same techniques.

But the legal picture complicated matters significantly. De La Soul famously fought the ’60s folk-rock band The Turtles in court, and a 1991 lawsuit against rapper Biz Markie, who borrowed heavily from the Gilbert O’Sullivan song “Alone Again (Naturally)” on his 1991 track “Alone Again,” led the industry to begin clearing samples, when possible, before release. (Markie made fun of this situation with his next album, All Samples Cleared!)

These legal complications became problems decades after the fact, especially for sample-heavy recordings produced prior to the lawsuit. De La Soul (above), for example, struggled to get its catalog onto streaming services in part because of issues with clearing samples, and before the catalog appeared back in March, were required to replace some of the found sounds with interpolations.

Despite this, musical innovation has largely been improved by the rise of sampling, with new types of hip-hop, such as trap music, emerging over time as new approaches became common and tastes changed.

Additionally, the rise of mixtapes, free recordings produced by hip-hop artists that often sport uncleared samples, proved a hugely effective way to allow emerging rappers to draw attention without having to go through the costly process of clearing samples. Chance the Rapper, for example, was already a mainstream pop star based on his mixtapes alone, and only released a traditional commercial album seven years after his first mixtape.

Others have gotten quite creative with their ways of working around the compensation issue. Gregg Gillis, a DJ who goes by the stage name Girl Talk, gained extreme prominence on the back of his brazen sampling of mainstream pop songs, which he distributed online as free albums through his label, Illegal Art.

In many ways, sampling reflects a conflict between two distinct artistic forms of music. One part might be built from original instruments, and another that takes those parts and builds something new. Some have become quite good at it. Kanye West, before becoming a prominent lead artist in his own right, won notices for his inventive use of sampling.

But its roots in the creations of others mean that there’s always a risk of a lawsuit around the corner. West, for one, has been sued numerous times for samples on massive hits, with the samples sometimes being so obscure that for the source music’s creators, it was their first actual brush with fame. For example, “Bound 2” sampled the Ponderosa Twins Plus One, a group that released one album and had otherwise long been forgotten—and whose lead singer had to sue to get royalties from West’s label.

Some of these suits have gotten messy, especially when the original creators are based in other countries or have died. A family member of the Egyptian composer Baligh Hamdi attempted to sue Jay-Z and his producer Timbaland over the 2000 song “Big Pimpin’,” which used an unauthorized sample of Hamdi’s “Khosara Khosara.” (The artists thought the song was in the public domain. It wasn’t.) The family member ultimately lost in court, but not before the suit had dragged on for multiple years.

But “Big Pimpin’” also shows how samples can actually at times benefit the musicians being sampled in non-compensatory ways. The musician who actually performed the sampled track, Hossam Ramzy, worked increasingly with Western artists such as Ricky Martin and Shakira after the song further raised his global profile.