STAY FREE’S ILLEGAL ART COMPILATION CD
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Music has always been a craft of borrowing. In traditional, or folk, music, melodies and lyrics were handed down from generation to generation. At every stage, musicians would change the tune or substitute words at will, adapting songs to their own situations.
Like their predecessors, the artists featured here have drawn from the music around them–whether by borrowing a guitar riff or taking a digital sample–to create something new. But unlike their folk ancestors, they all run the risk of getting sued.
Two technologies, separated by centuries, have brought us to this point. First, writing and printing gave birth to the composer and the idea that a single person could own a piece of music. Second, sound recording allowed music performances to be stored and replayed–again, permitting an individual (or a company) to claim it as property.
These two kinds of musical property are reflected in present-day copyright law: “publishing rights” apply to the ownership of written music and “master rights” apply to the ownership of a recording of that music. When you use a portion of someone else’s recording of a song, you need permission from the publisher and “clearance” from the owner of that recording. When you record without these permissions–and the exorbitant fees that go with them–you’re in trouble. Not surprisingly, only a few musicians, like Puff Daddy and Fatboy Slim, can afford to sample legally.
For our culture to be a space for free expression and for creativity to flourish, audio artists must be able to build on bits and pieces of preexisting music. While the “fair use” doctrine allows artists to appropriate other works, it does so only in cases of commentary or parody. Fair use doesn’t apply to the majority of “second-takers,” those artists who reuse sounds without directly referring to the original.
Most of these tracks would never have existed if the artists had adhered to copyright law. Many other works might never be heard unless we act soon to grant artists the right to create them.
“U2: Special Edit Radio Mix”
The story behind this track and why it is officially “unavailable” is perhaps one of the best-known cases of a corporate giant record company crushing obscure artists in the name of intellectual property. In summary, U2’s label, Island Records, sued Negativland and SST Records for trademark and copyright infringement. The resulting fiasco inspired Negativland to publish a book, Fair Use, which meticulously documents the entire affair. Negativland is now a tireless advocate of relaxing copyright laws and has often helped other artists fight off litigation; many major labels now understand that messing with Negativland will almost certainly result in bad publicity.
Gilbert O’Sullivan’s 1991 lawsuit against Biz Markie for the uncleared use of 20 seconds from O’Sullivan’s “Alone Again (Naturally)” was a major turning point in the evolution of hip-hop. Markie lost the case; the judge told him, verbatim, “Thou shalt not steal.” With that, the era of carefree sampling was over. Sample-heavy albums in the vein of Public Enemy’s It Takes a Nation of Millions to Hold Us Backor the Beastie Boys’ Paul’s Boutique became impossibly expensive and difficult to release. Many artists continued to sample but retreated into using more and more obscure source material.
People Like Us
England’s People Like Us (a.k.a. Vicki Bennett) hasn’t been sued yet, perhaps because most of her source materials are obscure. Her work is almost 100% uncleared samples.
“They Aren’t the World”
In 1987 a group of artists based in Houston took the name Culturcide and released a record called Tacky Souvenirs of Pre-Revolutionary America. The album had no information about who was in Culturcide or how to contact them–perhaps because what they had done could have gotten them into legal trouble. Each track on the record is a pop hit with new lyrics recorded crudely over the top, sometimes with bits of noisy guitar added on. The new words are extremely pointed criticisms of the music industry.
The Evolution Control Committee
“Rocked by Rape”
Built from AC/DC’s “Back in Black” and snippets from Dan Rather newscasts, this piece was released as a single in 1999 by Eerie Materials but then withdrawn under threat of litigation from CBS.
The Beastie Boys released this as a single in 1985, and it quickly went out of print. The song was to reappear on their 1999 The Sounds of Science anthology, but they had to cut it after AC/DC refused permission for the use of “Back in Black.” Beasties member Mike D reportedly talked to the band personally on the phone: “AC/DC could not get with the sample concept. They were just like, ‘Nothing against you guys, but we just don’t endorse sampling.’”
British collagists Dummy Run make their music almost completely from other music. Taken from their 1996 album Pink Rocket, this piece is a self-reflective glimpse at some of the issues involved in sampling.
Oswald constructed this piece out of a dizzying array of James Brown samples, partially as a commentary on just how often Brown’s work has been reused by others. The track originally appeared on his 1989 CD Plunderphonic, which brought Oswald threats of legal action from the Canadian Recording Industry Association. He eventually was forced to relinquish all remaining copies of the disc, which were then physically destroyed. Despite all this, the album has become a cult classic in the genre of sample-based music.
This track, which originally appeared on A Mutated Christmas (Illegal Art, 2001), combines various recordings of the classic Christmas carol. None of the samples have been cleared. If Corporal Blossom were forced to pay for all of them, the track would have to disappear.
“Reality of Matter”
The Tape-beatles’ goal since their inception in 1987 has been to explore the potential of making music without musical instruments, using only recording technology. They also believe that “recontextualization of previously ‘finished’ works can be done ethically and can in itself constitute authorship.” This example of their work comes from their 1999 disc Good Times.
“Psycho of Greed”
This unreleased track was recorded for PE’s latest CD,Revolverution. It contains a sample of the Beatles’ song “Tomorrow Never Knows.” The clearance fee demanded by Capitol Records and the surviving Beatles was so high that PE decided to pull the track from the album.The Verve*
This hit pop song uses a sample from a string arrangement of “The Last Time” by the Rolling Stones. The Verve had trouble getting a licensing agreement from the Stones’ publisher, Alan Klein, who said, “I don’t agree with sampling as a matter of principle, and certainly not on a Stones song.” (This is a strange stance, given that the Stones launched their career with covers of blues songs without compensating the original artists.) Eventually Klein gave in, but only after the Verve agreed to sign over all royalties to “Bittersweet Symphony” to the Stones. Later, when Nike approached the Verve about using the song in a commercial, the band refused. Nike then approached Klein about recording a cover version, since he owned the publishing rights. When members of the Verve found out about this, they agreed to let Nike use their version and donated their fee to charity. “The last thing in the world I wanted was for one of my songs to be used in a commercial,” said Richard Ashcroft of the Verve. “I’m still sick about it. But it could have been worse. If we didn’t fight for the song, ‘Symphony’ would have ended up in a cheeseburger ad and no one could ever have taken our record seriously again.”
“Clawing Your Eyes Out Down to Your Throat”
From Wobbly’s Playlist (Illegal Art, 2001), this song contains samples from a variety of sources, including several Johnny Cash songs. Like many sample-based works that don’t explicitly criticize the source material, this track would probably not be defendable in court as Fair Use.
De La Soul*
“Transmitting Live from Mars”
This track, from the album 3 Feet High and Rising, samples a song by the 1960s band The Turtles, which sued De La Soul in 1989 and won a judgment of $1.7 million. For its next album, De La Soul made sure to clear all samples, which cost a total of $100,000.
Buchanan and Goodman*
“The Flying Saucer”
Released in 1956, this record is probably the first successful use of “sampling” in popular music. It was done with magnetic tape, as digital technology did not yet exist. Dickie Goodman and Bill Buchanan edited together this alien invasion skit out of popular songs, for which they were sued for multiple copyright infringements. Their record label came to an agreement with the publishers of the original songs, and the record went on to sell close to a million copies, spawning a whole genre of “break-in” or “snippet” records. The hit record also served to boost sales of the sampled songs, and spurred interest in their creators, many of whom were African-American singers whose original renditions had never been heard by a mainstream (white) audience. Ironically, a recently released retrospective CD of Goodman’s work substitutes an alternative version of “Flying Saucer” (with reworked snippets) for the original, most likely due to licensing problems.
“The Queen and I”
The iconoclastic Justified Ancients of Mu Mu released their first album in 1987, called 1987: What the Fuck’s Going On? It included many tracks that contained uncleared samples of popular music, but this one got them into particular trouble when they were sued by the Swedish group Abba for using almost all of “Dancing Queen.” The album was deleted and remaining copies destroyed. The record’s original label read: “All sounds on this recording have been captured by The JAMs in the name of Mu. We hereby liberate these sounds from all copyright restrictions, without prejudice.” (The JAMs are also known as the KLF, which stands for Kopyright Liberation Front.)
The British punk band Wire thought the main guitar riff from this song sounded too similar to its “Three Girl Rhumba,” released in the 70s. In 1995, Wire threatened Elastica with legal action, and the matter was settled out of court.
Steinski & Mass Media*
“The Motorcade Sped On”
Steven Stein created this cut-up of Kennedy assassination coverage. His label, Tommy Boy, was unable to officially release it because CBS refused to grant clearance for the use of Walter Cronkite’s voice. It was instead released as a white label 12-inch single in 1986.
Invisibl Skratch Piklz*
white label edit
The Piklz are a special sort of band composed of a rotating lineup of hip-hop DJs, including Q-bert, Mixmaster Mike, and Shortcut. These highly skilled turntablists scratch out songs together live, each using a record and a record player as an instrument, each contributing, in real time, a different part (like drums, bass line, or horn stabs) to the music. This track comes from a 12-inch record pressed and circulated in 1996 with no information (a “white label”). Hip-hop and dance records often appear in this limited, underground manner and then vanish forever, never to be officially released due to copyright issues.
Originally from Hong Kong and now based in London, Xper.Xr adds his own personal accompaniment to EMF’s pop hit “Unbelievable.” From his album Lun Hsiao Shai (Vaseline).
“Happy Birthday To You”
Yes, the song the entire Western world sings at birthday parties is actually owned by a large corporation, and every time someone sings it in public without permission, it is an infringement of copyright. The song’s tune was published by schoolteachers Mildred and Patty Hill in 1893 as “Good Morning to All” in their book Song Stories for the Kindergarten. Children began singing it at birthday parties but with words they came up with themselves, which is how folk music typically develops. Nevertheless, the song–lyrics and all–is now owned by AOL Time Warner, the largest entertainment company on earth, and the corporation aggressively defends its property.
Jeremy J. Beadle, Will Pop Eat Itself: Pop Music in the Soundbite Era, Faber & Faber, London, 1993.
Kembrew McLeod, Owning Culture, Peter Lang Publishing, New York, 2001.
Peter Shapiro, “Tangents”, The Wire, April 2002, issue 218, p. 47.
* used without permission
Track research, selection, and liner notes by Philo T. Farnsworth, Steev Hise, and Carrie McLaren. Thanks also to Alexandra Ringe.