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Azuma Hiroki calls it “database postmodernity,†where elements of culture are stored like a database then cut and pasted, rearranged, disassembled and fragmented to make new forms. We live in a world where appropriation is the cultural norm, and where popular culture is engaged in a self-referential cycle of parody and simulation.
Parody, however, is not a breach of copyright rules. So Weird Al Yankovic has no problem taking Michael Jackson’s song “Beat It,†stealing it verse for verse, beat for beat, and turning it into his own song, “Eat It.†But if a hip-hop DJ wants to sample a break-beat from “Beat It,†not even the whole song, he must get permission to do so.
Hip-Hop
It wasn’t like that at one time. In the early days of hip-hop, music was generally made without instruments, instead using turntables and samplers to cut up beats and bass lines to create new songs. For young people in inner-city areas, where money is sparse, only minimal investment was required for these tools of creative musical expression.
DJ Kool Herc was the first to isolate the percussion break in funk songs—the break beat—and repeat it over and over, laying a foundation for hip-hop music. Kool Herc came from Jamaica, where sound system parties featured toasters, singing or rapping over reggae soul records. Some toasters, like U-Roy, even released their own records of themselves toasting over songs recorded by other artists. So this tradition of using another artist’s music as a platform for new expression evolved from neighborhood sound system parties in Kingston, Jamaica, and traveled with DJ Kool Herc to parties in New York City, where it was adopted and transformed into hip-hop.
This unauthorized use of copyrighted music in hip-hop went relatively unnoticed until hip-hop proved to be quite lucrative and popular. Now artists must clear the use of samples with the copyright holder, often paying an upfront fee or a portion of royalties. Dealing with major artists like the Rolling Stones or the Beatles with lots of lawyer backup, however, involves heavy fees. After a short time it seemed that using samples, rather than an inexpensive way to create music, became more and more expensive.
The Case of the Amen Break
In 1969 a soul band called the Winstons recorded a single, the B-side of which was a song called “Amen Brother.†The drum break of this song, dubbed “the Amen Break,†became the most sampled drum break-beat ever. As Nate Harrison shows us in his piece recounting the history of the Amen Break, this drum solo became a “ubiquitous piece of the pop culture soundscape,†used in hip-hop songs and car commercials alike. The break’s individual drum hits were isolated using more sophisticated sampling equipment, and by rearranging the beats new permutations were formed. These beats created the foundation of drum ‘n’ bass and jungle music played at all-night raves. Harrison shows us, then, that “an entire subculture was…based on 6 seconds from 1969.†The Winstons, however, never received any compensation for the use of their copyrighted recording.
The Amen Break can be found on copyrighted jungle and drum ‘n’ bass sample kits, but it is never credited to the Winstons, nor is there any indication that the Winstons have licensed the use of the break to the sample kit creators. In effect this creates two copyrights for the same material, and Nate Harrison demonstrates that this produces a situation where “the Amen belongs less now to the Winstons and more to companies like Zero G Ltd,†a maker of such kits.
The case of the Amen Break shows how incredible innovation, even entire subcultures, can be formed from something as simple as a six second drum solo—as long as the material is free to use and build upon. As it stands now, if an artist wants to use any sample, no matter how long or recognizable, she must get a license.
Nate Harrison ends his piece with a quote from Federal 9th Circuit Court of Appeals Judge Alex Kaczinksy, “Culture is impossible without a rich public domain,†a sentiment that unfortunately is not upheld by the most recent rulings regarding copyright and fair use, which have extended copyrights so far as to effectively remove all music created in the twentieth century from the public domain.
Technology
As technology evolves, so culture evolves. From the wheel to the PC, culture follows the technology. New information technologies lent culture the ability to freely copy, cut and paste text, graphics and sound. Digital technologies provided the environment for what Lawrence Lessig, Stanford law professor and founder of Creative Commons, calls “cut and paste culture.â€
In his book Free Culture, Lessig states, “Technology means you can now do amazing things easily; but you couldn’t easily do them legally.†He calls for an adaptation of copyright laws to allow creativity using new technologies that protects the creators of the derivative works and the creators of the original. His innovative solution is the Creative Commons organization with the slogan, “Some Rights Reserved,†an alternative to the strict copyright laws. In his lecture, “Who Owns Culture,†he implores us “to protect the creators that this technology will enable, not just the creators of the 20th century†whose copyrights derivative works may infringe.
Though these new technologies make new forms of creation possible through layering, cutting and pasting, editing, remixing, and rearranging existing material, the structures of law are not in place to freely allow this creation. Lessig makes the point that the only way to do this legally is to hire a lawyer to track down the people that need to be paid compensation for the use of their work, or to hire a lawyer to defend your work as fair use—“either way, the creative process is a process of paying lawyers.â€
What if you expect no profit from your work? After all, the technology is fairly cheap and distribution is easy over the internet. Users of digital technologies don’t incur the costs of commercial production, and often don’t expect a return on their creations, yet this does not protect them from copyright lawsuits.
Podcasting
Cody Hanson is a blogger who presented hard-to-find, forgotten songs on a podcast series called “Vinyl Podcast.†Each podcast contained one song. He would also include background information and commentary. In January 2006 he decided to stop the podcasts because of a package he received from BMI containing information on its podcasting license. He took it as a friendly warning and decided to quit.
BMI is a company that, along with ASCAP, protects songwriters, paying them royalties every time one of their songs is played on the radio, even cover versions. If Hanson had bought the podcasting license from BMI, he would only be permitted the right to rebroadcast the content of the songwriter’s composition, not the exact version he played, which is protected under the mechanical rights of the recording. So he would need to get permission from a different company, the Harry Fox Agency, to get the mechanical rights. The price of the mechanical rights is determined by how long the song is and to how many people it will be distributed. Cody Hanson’s podcast at one point had 5,000 subscribers, and he calculated that “a song 4:07 in length would have cost $455.00 to license for use in [his] podcast.â€
Hanson wasn’t making any money from his podcast series, in fact “the Vinyl Podcast was a money-losing operation,†because of the money he paid each month for hosting. Amateur podcasting certainly cannot survive in such an unfavorable environment. Yet Hanson turned people on to music they probably would never hear otherwise, music out of print and hard to find. He was promoting it, like a college radio station might.
Unfortunately podcasts are downloads, not webcasts or radio broadcasts, so it provides people with their own copy of copyrighted material. This subjects podcasts to different rules than radio, which is not required to pay the artists whose work is played.
The Kids are Alright
I come from the tradition of a college radio where promoting unknown, underappreciated, unsigned, independent music was the rule rather than the exception. I worked as a radio DJ for KUCI, 88.9 FM in Irvine, California, which forbade the play of major-label bands or hit songs out of a spirit of promoting the underdog. After all, the Beatles certainly don’t need any more promotion; why not give the airtime to a band signed to an obscure independent label, whose music needs exposure?
My podcast series, named after the show I DJed on KUCI and later on Pirate Cat Radio in San Francisco, still operates with that spirit in mind. I would argue fair use of the music in my podcasts because I go to great lengths to provide easy links on the blog post so that interested listeners can find out more about the bands featured and buy their music. I expect no financial gain from creating these shows.
When I can, I contact the artist directly to obtain permission to use their music. The use of the social networking site Myspace has facilitated this to a great degree. However, most of the music I appreciate most is over twenty years old, nearly forgotten, and never played on commercial radio. This music was in the public domain until the Sonny Bono Act of 1998 extended the length of copyright to 70 years after the death of the author, even if the copyrights are not renewed.
Until a usable structure is in place where amateur podcasters can purchase licensing for a fair price, a price that fits the product, podcasters will have to stay underground. Luckily there is a very low chance of my podcast being singled out for prosecution for breach of copyright law. I will continue to podcast until then. Hopefully by that time a fair structure will have been instated, and the madness of copyright extensions will be tempered, allowing more music to enter the public domain.
I think of my podcasts as public mix CDs, an opportunity for me to share my knowledge of music, and promote interest in the artists and recordings that are represented. I partake in the “cut and paste culture†afforded by these new technologies. I believe that this is what makes our culture what it is, a remixing of other elements, a postmodern database, a pastiche of old and new. I would hope that the courts could see it the same light and find a fair way for all kinds of creators to be protected. Maybe Creative Commons is the way. But what about bands like the Winstons who may not even be aware of the copyright infringement of their material? What about artists who are dead, bands who have disbanded? Who retains their copyrights? Who gets paid? Invariably, it seems the trend is that the lawyers get paid the most out of the bunch.
Conclusion
The current stringency of copyright laws seems like a feeble attempt at slowing the future of creative expression, by imposing twentieth century business models on twenty-first century creativity. (Lessig) The technology serves to enable and empower, but the law heavy-handedly takes that power away from the people. The law restores power to the big businesses, which can afford the lawyers to sue twelve year olds for utilizing the technology at their hands to download mp3s.
The reactionary lawsuits and excessive extensions of copyright rules are trying to put a halt on a culture and a new form of creative expression which digital technology affords us, trying to stop a process that seems inevitable. Hip-hop, drum ‘n’ bass, jungle, dancehall—these types of music reflect postmodern creativity, a cut and paste culture using technology to build something new from building blocks of the past. Though the music derives from previously recorded material, reassembled and remixed into a different form, this does not negate its authenticity and originality.
Intellectual property is a right that should be protected, but consumers and creators should be protected when their actions are without malice and cause no harm. In many cases, when work is freely copied and distributed using new technologies, it affords greater publicity for the work. Even in my own case I have found one of my own photographs and articles reproduced elsewhere without my prior consent, but this allows for exposure to people who might not otherwise see it.
This culture enables greater sharing between people and artists and musicians, taking the power from the hierarchical structure of record labels and distribution companies, and putting it into the hands of the people. This egalitarianism of the new technology is threatening to the corporations because they are not in control. Amateur podcasts, though they are non-commercial and promote musicians and record labels, are not under their control.
But a culture based on free sharing does not necessarily mean total anarchy. Piracy is still unethical; it is stealing. However sharing, or building upon another’s creative work does not constitute piracy. The structure of the law should be changed to reflect this reality—to regulate the technology and the creativity it enables in a non-reactionary fashion, rather in a way that promotes culture and innovation.
As Lawrence Lessig writes, “this movement must begin in the streets†in order to effect change in Washington. Our best chance, then, is to educate others and ourselves on the issues regarding copyright and fair use. Maybe then we’ll have a chance at creating an alternative—an alternative that allows digital creativity and peer-to-peer sharing, but also protects originators and artists, a culture based on freedom not prohibition.