According to Billboard, Luke Combs’ “Fast Car” was the eighth biggest song of 2023. Needless to say, the success of the song has likely made a lot of people happy. It’s likely made Luke Combs happy. It’s likely made his label happy. It’s also likely made the millions of listeners happy. But the song’s success has also made another person very happy: Tracy Chapman.
Really interesting, especially compared to something I just learned yesterday on Blocked & Reported*... they gave an update on the “Bad Art Friend” lawsuit, when apparently the judge has ruled that Sonya Larson did not plagiarize Dawn Dorland because the several hundred words she copied verbatim from Dawn’s kidney donor letter were used with a different “character of use” in Larsons short story. Apparently because the words were used with clearly different intent of expression than the original letter, it doesn’t count as plagiarism? And because Dawn suffered no financial loss, arguably gained from it, she also loses standing to claim damages.
The vast majority of music sampling would meet both a “character of use” test as well as not cause financial damages to the original artist. Seems interesting that the written word would be treated so differently than a composition or recording? Even if you argue the written word is more like a composition than a recording, at least the composition has compulsory licensing.
It does seem to me that there’s some logic for the original artist to be able to deny sampling (while being unable to deny a cover).
A cover is their whole song, faithfully reproduced as the author notes, effectively in the same context as the original artist recorded it.
A sample is a small snippet, taken out of context, and by definition not faithfully reproduced.
What if an artist doesn’t want their music associated with a rap recording (because of, say, objections to violent references in the lyrics)? That feels quite reasonable.
While I generally agree with the author and thought he made a compelling case, I would have liked to see him do more to address some potential counter arguments.
I disagree with a lot of this. First of all, one difference between a song and a performance is that a song isn't actually audible. The relationship of a composition to a performance is sort of like the difference between blueprints for a house and an actual house; the song becomes audible only by being performed. A recording, looking at it in the simplest way (which up until the age of magnetic tape recording was the only way), is simply a performance that has been captured and can be replayed.
(Aside: Magnetic tape changed this because it made editing and other games like tape speed manipulation possible, such that you could have a "recording" that nobody had ever actually played. The original recording of the theme for "Dr. Who", for example, took months to prepare at the BBC Radiophonic Workshop because each sound had to be generated electronically -- basically generating samples from scratch rather than taking them from other recordings -- and then it all had to be edited together by hand. But these samples were created in-house from scratch, not copied from other recordings.)
So, when you say that a song and recording should be treated similarly, you're basically glossing over a fundamental difference between them. They aren't the same thing. "You have the right to sing a certain melody with certain lyrics" is a very different claim from "You have the right to extract pieces of someone else's recording and repurpose them", just as "You have the right to build a house from a certain set of blueprints" is very different from "You have the right to take pieces of my house and use them to build your own house." (Not a perfect analogy, of course, since you can't copy a house the way you can copy a recording.)
One reason I've never been a fan of sampling is that it's basically a workaround for musical incompetence. If you like the sound of the hi-hat in Tracy Chapman's "Fast Car", nobody can stop you from figuring out how to make and record that sound yourself, if you have the ability. But simply copying it out of her recording is the lazy approach. Someone had the talent to create that exact sound, but now someone who evidently lacks that talent (else why would they need to copy it) uses it for their own profit.
You're looking at this situation in purely economic terms -- what will generate the most income or allow for the creation of the most recordings -- which is a totally philistine viewpoint, though quite consistent with your standard "policy wonk" approach to issues. I don't mind compulsory licensing of songs, because music is ultimately about performance -- without performance, music is just a bunch of marks on paper. Nobody spends their life "enjoying music" by reading sheet music without ever listening to performances. The whole point of a composition is to be performed. But the purpose of a recording is to be listened to, not to be chopped up and have parts of it taken and re-used in other contexts by people who are incapable of creating music in any other way.
I'd add that the idea that musicians, artists etc should have some kind of moral claim to control who uses their work is deeply offensive to scientists and mathematicians.
Our theorems and theories are every bit as much the result of hard work and creativity (and no they aren't just facts about the world -- the same laws can be phrased many different ways but some are more elegant and useful). However, no one ever suggests we should have moral rights to determine who gets to use them.
Yes, limited copyright for artistic expression is a worthwhile incentive for creation and we don't think it's a good tradeoff in the case of scientific discovery. That's fair enough. But it's unreasonable to suggest that artists should somehow have moral control over their creations beyond what's the societally optimal incentive while not giving that same control to mathematicians and scientists (I obviously think no one should get it).
I admire the Bold Decision made by Chris Dall Riva to delve into musical copyright law without invoking Taylor Swift and her "Taylor's Version" covers of her own past albums.
Her old label controlled (and sold) their rights to her original recordings. But now Ms. Swift controls the rights to her cover versions. If a movie, television or advertising exec wants to stay in the good graces of the Swifties, they'll license Taylor's Version for their own purposes and she needn't share royalties with whomever owns the masters of the original versions.
To be honest whenever I see articles about copyright centered on sampling (and there are a lot, for obvious reasons), there’s always a certain Onion-headline quality to it: “Art form based on wholesale appropriation inexplicably finds itself having difficulties with copyright.”
Less snarkily, because I think at a minimum the arguments about transaction costs are good ones, I wonder if the author has considered the effect this would have on, e.g., sample-based instrumentation licenses or VLSI’s, which AFAIK have a robust private market that would presumably be somewhat harmed by compulsory licensing.
Also 30 seconds seems like a long time - that’s going to be 1/5 to 1/6 of a typical song length, easily enough to get the entire chorus or hook in there. I’d suggest at most 10.
Dec 15, 2023·edited Dec 15, 2023Liked by Chris Dalla Riva
Man, paper planes still absolutely slaps. Also great post! I worried that at the start it was going to be about people complaining about 'appropriation' or something but it was actually really interesting.
This argument doesn’t work for me. Treating a composition and a small portion of a recording of that composition as equivalent is not sensible. You even kind of acknowledge that by using a trivial example (the hi hat part), rather than a relevant one, like say the famous guitar lick. In the current scheme, those different sounds would be wildly different costs to license, for obvious reasons, but your proposal treats them as equivalent. That makes this a non-starter.
This is a great piece, as someone in the indie electronic music industry who also DJs. I never thought I'd see a Francis Grasso shout out in Slow Boring, what a pleasant surprise!
The idea that authors should retain some kind of control over how their works are used (eg moral rights) is one of the worst ideas of all time and I don't understand why many otherwise left leaning individuals support it. Many European countries are happy to apply a high tax rate to earnings but yet allow an artist to deny other people the benefit of reusing their creation.
All of human society is built on using other people's ideas and innovations. Why should this be different because you filled a copyright. People who come up with policy ideas don't get to decide who can use them (eg if you suggested the Obama/RomneyCare idea you can't say one party can't use it). Scientists don't get to deny other people the use of their laws.
The world is made better off when we can all build on the ideas that go before us. And it's not like it follows from any philosophical notion of private property (eg on a Lockean perspective asserting copyright is actually violating other people's property rights to make what they want).
Yes, copyright is important to encourage innovation but that's the only justification.
Very interesting and unexpected piece. I certainly didn't think I was going to learn so much about sampling when I woke up this morning. I'm especially grateful for learning where the beginning of "Paper Planes" -- a piece I love -- came from.
And it got me to thinking. How did earlier periods handle this kind of thing? And I thought specifically about that masterpiece, Brahms' "Variations on a Theme by Haydn" and how he got the rights from the long-dead Haydn, only to learn this from Wikipedia:
"Brahms composed the work on a theme entitled "Chorale St. Antoni", which Brahms found in a wind ensemble composition. When Brahms discovered it, the wind ensemble piece carried an attribution to the composer Joseph Haydn. Brahms titled his own composition accordingly, crediting Haydn for the theme. However, music publishers in the early nineteenth century often attached the names of famous composers to works by unknown or lesser-known composers, to make the pieces more saleable. Subsequent research has concluded that the wind piece Brahms used as a source does not fit Haydn's style. The wind ensemble piece remains without clear attribution."
Thanks for having me! I really enjoyed writing this piece.
This rules, and I’d love to see more guest posts like this about niche topics!
Really interesting, especially compared to something I just learned yesterday on Blocked & Reported*... they gave an update on the “Bad Art Friend” lawsuit, when apparently the judge has ruled that Sonya Larson did not plagiarize Dawn Dorland because the several hundred words she copied verbatim from Dawn’s kidney donor letter were used with a different “character of use” in Larsons short story. Apparently because the words were used with clearly different intent of expression than the original letter, it doesn’t count as plagiarism? And because Dawn suffered no financial loss, arguably gained from it, she also loses standing to claim damages.
The vast majority of music sampling would meet both a “character of use” test as well as not cause financial damages to the original artist. Seems interesting that the written word would be treated so differently than a composition or recording? Even if you argue the written word is more like a composition than a recording, at least the composition has compulsory licensing.
*Timestamp 34:00-36:15 or so: https://open.substack.com/pub/blockedandreported/p/premium-how-the-allies-took-berlin (if you’re not a primo and want a free trial sub, drop your email, I think I have 3 more to share.) Or you can find the ruling here: https://www.bloomberglaw.com/public/desktop/document/LarsonvPerryetalDocketNo119cv10203DMassJan302019CourtDocket/2?doc_id=X4C1JG8DIN58IVP76AC7631DIMB
It does seem to me that there’s some logic for the original artist to be able to deny sampling (while being unable to deny a cover).
A cover is their whole song, faithfully reproduced as the author notes, effectively in the same context as the original artist recorded it.
A sample is a small snippet, taken out of context, and by definition not faithfully reproduced.
What if an artist doesn’t want their music associated with a rap recording (because of, say, objections to violent references in the lyrics)? That feels quite reasonable.
While I generally agree with the author and thought he made a compelling case, I would have liked to see him do more to address some potential counter arguments.
I disagree with a lot of this. First of all, one difference between a song and a performance is that a song isn't actually audible. The relationship of a composition to a performance is sort of like the difference between blueprints for a house and an actual house; the song becomes audible only by being performed. A recording, looking at it in the simplest way (which up until the age of magnetic tape recording was the only way), is simply a performance that has been captured and can be replayed.
(Aside: Magnetic tape changed this because it made editing and other games like tape speed manipulation possible, such that you could have a "recording" that nobody had ever actually played. The original recording of the theme for "Dr. Who", for example, took months to prepare at the BBC Radiophonic Workshop because each sound had to be generated electronically -- basically generating samples from scratch rather than taking them from other recordings -- and then it all had to be edited together by hand. But these samples were created in-house from scratch, not copied from other recordings.)
So, when you say that a song and recording should be treated similarly, you're basically glossing over a fundamental difference between them. They aren't the same thing. "You have the right to sing a certain melody with certain lyrics" is a very different claim from "You have the right to extract pieces of someone else's recording and repurpose them", just as "You have the right to build a house from a certain set of blueprints" is very different from "You have the right to take pieces of my house and use them to build your own house." (Not a perfect analogy, of course, since you can't copy a house the way you can copy a recording.)
One reason I've never been a fan of sampling is that it's basically a workaround for musical incompetence. If you like the sound of the hi-hat in Tracy Chapman's "Fast Car", nobody can stop you from figuring out how to make and record that sound yourself, if you have the ability. But simply copying it out of her recording is the lazy approach. Someone had the talent to create that exact sound, but now someone who evidently lacks that talent (else why would they need to copy it) uses it for their own profit.
You're looking at this situation in purely economic terms -- what will generate the most income or allow for the creation of the most recordings -- which is a totally philistine viewpoint, though quite consistent with your standard "policy wonk" approach to issues. I don't mind compulsory licensing of songs, because music is ultimately about performance -- without performance, music is just a bunch of marks on paper. Nobody spends their life "enjoying music" by reading sheet music without ever listening to performances. The whole point of a composition is to be performed. But the purpose of a recording is to be listened to, not to be chopped up and have parts of it taken and re-used in other contexts by people who are incapable of creating music in any other way.
I'd add that the idea that musicians, artists etc should have some kind of moral claim to control who uses their work is deeply offensive to scientists and mathematicians.
Our theorems and theories are every bit as much the result of hard work and creativity (and no they aren't just facts about the world -- the same laws can be phrased many different ways but some are more elegant and useful). However, no one ever suggests we should have moral rights to determine who gets to use them.
Yes, limited copyright for artistic expression is a worthwhile incentive for creation and we don't think it's a good tradeoff in the case of scientific discovery. That's fair enough. But it's unreasonable to suggest that artists should somehow have moral control over their creations beyond what's the societally optimal incentive while not giving that same control to mathematicians and scientists (I obviously think no one should get it).
I admire the Bold Decision made by Chris Dall Riva to delve into musical copyright law without invoking Taylor Swift and her "Taylor's Version" covers of her own past albums.
Her old label controlled (and sold) their rights to her original recordings. But now Ms. Swift controls the rights to her cover versions. If a movie, television or advertising exec wants to stay in the good graces of the Swifties, they'll license Taylor's Version for their own purposes and she needn't share royalties with whomever owns the masters of the original versions.
https://wjlta.com/2023/03/07/copyright-law-taylors-version/
I just love that Combs didn't change the line that goes "Now I work in the market as a checkout girl."
To be honest whenever I see articles about copyright centered on sampling (and there are a lot, for obvious reasons), there’s always a certain Onion-headline quality to it: “Art form based on wholesale appropriation inexplicably finds itself having difficulties with copyright.”
Less snarkily, because I think at a minimum the arguments about transaction costs are good ones, I wonder if the author has considered the effect this would have on, e.g., sample-based instrumentation licenses or VLSI’s, which AFAIK have a robust private market that would presumably be somewhat harmed by compulsory licensing.
Also 30 seconds seems like a long time - that’s going to be 1/5 to 1/6 of a typical song length, easily enough to get the entire chorus or hook in there. I’d suggest at most 10.
Man, paper planes still absolutely slaps. Also great post! I worried that at the start it was going to be about people complaining about 'appropriation' or something but it was actually really interesting.
This argument doesn’t work for me. Treating a composition and a small portion of a recording of that composition as equivalent is not sensible. You even kind of acknowledge that by using a trivial example (the hi hat part), rather than a relevant one, like say the famous guitar lick. In the current scheme, those different sounds would be wildly different costs to license, for obvious reasons, but your proposal treats them as equivalent. That makes this a non-starter.
This is a great piece, as someone in the indie electronic music industry who also DJs. I never thought I'd see a Francis Grasso shout out in Slow Boring, what a pleasant surprise!
The idea that authors should retain some kind of control over how their works are used (eg moral rights) is one of the worst ideas of all time and I don't understand why many otherwise left leaning individuals support it. Many European countries are happy to apply a high tax rate to earnings but yet allow an artist to deny other people the benefit of reusing their creation.
All of human society is built on using other people's ideas and innovations. Why should this be different because you filled a copyright. People who come up with policy ideas don't get to decide who can use them (eg if you suggested the Obama/RomneyCare idea you can't say one party can't use it). Scientists don't get to deny other people the use of their laws.
The world is made better off when we can all build on the ideas that go before us. And it's not like it follows from any philosophical notion of private property (eg on a Lockean perspective asserting copyright is actually violating other people's property rights to make what they want).
Yes, copyright is important to encourage innovation but that's the only justification.
Just want to chime in to say that, to the extent I believe I grasp his argument, I support Chris Dalla Riva's position on this issue.
On a similar topic, Steamboat Willie, the early version of Mickey Mouse, is set to enter the public domain in the new year.
Very interesting and unexpected piece. I certainly didn't think I was going to learn so much about sampling when I woke up this morning. I'm especially grateful for learning where the beginning of "Paper Planes" -- a piece I love -- came from.
And it got me to thinking. How did earlier periods handle this kind of thing? And I thought specifically about that masterpiece, Brahms' "Variations on a Theme by Haydn" and how he got the rights from the long-dead Haydn, only to learn this from Wikipedia:
"Brahms composed the work on a theme entitled "Chorale St. Antoni", which Brahms found in a wind ensemble composition. When Brahms discovered it, the wind ensemble piece carried an attribution to the composer Joseph Haydn. Brahms titled his own composition accordingly, crediting Haydn for the theme. However, music publishers in the early nineteenth century often attached the names of famous composers to works by unknown or lesser-known composers, to make the pieces more saleable. Subsequent research has concluded that the wind piece Brahms used as a source does not fit Haydn's style. The wind ensemble piece remains without clear attribution."
https://en.wikipedia.org/wiki/Variations_on_a_Theme_by_Haydn