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.
Fixing copyright is certainly on the SB reform agenda. Thank you for writing this piece.
My family had to deal with a bunch of music copyright law when handling my aunt and uncle's estate and it was not pleasant. My aunt was a performer while my uncle was a producer, writer, and performer.
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.
Sorry to be That Guy, but based on my read of the order it's not that it "doesn't count as plagiarism," but that it's that it's fair use (as to which both the "Character of the Use" and "Effect on the Market Value of the Work" are factors in making the determination), for which the gloss is more like "this implicates the copyright holder's rights, but it's okay and there's no remedy warranted."
In layman's terms instead of copyright-legalese this is closer to "it's plagiarism but that's okay" than "this isn't plagiarism."
Fair use is one of the fuzzier parts of copyright law and typically an affirmative defense, which makes it hard to know in advance if an appropriator is coloring inside the lines because the scope of per se rights is subject to this four-factor balancing test, although some uses are significantly more likely to be protected than others.
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.
A sample is by definition faithfully reproduced, because it is the recording itself (though it can have additional modifications). A cover has much more flexibility - just look at Johnny Cash’s cover of “Hurt”
And as in the case of Cash's "Hurt" often the cover is far better than the original and vastly increases its popularity. One wonders if Leonard Cohen should have paid Jeff Buckley for his cover of "Hallellujah" rather than the other way around. (Same for "A Little Help from My Friends" and countless others.)
"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."
My instincts pull the opposite direction. If a license is compulsory, then you have no responsibility or capability to police how people use samples. If it is voluntary, then you open yourself up to scrutiny every time you approve use of a sample, which incentivizes denying a license even when you don't object.
This is a good point - but fundamentally the logic of copyright is to give the creator control. Whether there is scrutiny of what the creator does with that control is second order. And since the author is making a case for why there should be an exception to creator control in this instance, he could have addressed some of the objections to giving up control.
Yes, but the reason that's the logic is that creator control is supposed to incentivize creation in general. This post is largely arguing that the current logic, when applied to sampling, does the opposite.
I appreciate the concern you outlined, but it doesn't make any sense to me. An artist can't prevent Gary Glitter from recording a faithful cover of their song, but they should be able to stop a three-second snare sample from being used in a rap song's hook because they interpret the lyrics to be violent? Seems backwards, if anything. To be clear, I agree with you and the author, and both licenses should be compulsory.
Yeah, it makes me think of "Who I Smoke" by Jacksonville rapper Julio Foolio. He samples Vanessa Carlton's "A Thousand Miles" on a song where he explicitly brags about the multiple people he or his crew actually murdered in real life. If I was Vanessa Carlton, I would not be happy about this, and would want a way to stop it!
Now granted it did happen so perhaps she was fine with it, or maybe she doesn't think its worth the hassle to fight the legal battle to stop, but still, I think I'd want that option to stop this from happening.
Except Weird Al seeks permission for his works, both presumably because he doesn't want to spend money defending court cases even if he'd win them and because many of his songs probably wouldn't actually pass the SCOTUS standard for being parodies. (Yankovic arguably lucked out with "Amish Paradise," which infamously involved confusion over whether Coolio had authorized it or not, because it's pretty squarely within the parody exception.)
The parody exception is not "you can use something copyrighted without permisison in a parody". It is "you can use something copyrighted without permission if you are parodying that copyrighted work". If the target of the parody is not the work itself that you are using, then it's not a fair use.
Most Weird Al songs are parodying something, but they are often using a popular song to parody something else.
To the extent that I have any opinion, it seems more logical that both written music and lyrics and the actual song produced should be under sole control of the creator. Why have a centrally-fixed price for licensing for the former at all?
But in turn, copyright terms need to be curtailed. 50 years, inheritable only by a surviving spouse, child, or grandchild with no extension possible.
But honestly, I don't really see it as important and don't know if I'm smoking something.
One reason for compulsory licensing of covers is that it also applies to public performance. Without it, it would be a copyright violation to sing (or otherwise perform) any copyrighted song in a public place. That would make buskers and karaoke bars illegal, as they would need song-by-song licensing. Similarly, there are plenty of musicians who will do a live cover of a different song every night on their tour. That's only legal because they will use compulsory licensing for cover songs.
Releasing a recorded version ("phonorecord" to use the language of the copyright acts, which is where ℗ comes from) is different and I could see an argument ab initio for restricting that to operating with permission. But it's absolutely against the traditions of the music industry for the last century, and changing that would be a major change to the law.
Though I doubt most cover bands, let alone buskers, are actually paying licensing fees in the first place unless they get good enough to tour in their own right.
I don't think the former paragraph becomes impossible here. If my half-assed understanding is right, there are cataloguing/intermediary firms who build lists of music for the sorts of purposes you've described and lease them to end-users, then ensure licensing fees go where they should. If that's correct, then doesn't an end to mandatory licensing just require those firms to get permission from/negotiate prices with the record labels and artists with whom they already communicate and to whom they already send money?
Most music venues carry licenses with "performing rights organisations" (PROs) and just take a note of the setlist for any given night and send it with a fee to the PRO, which then distributes the money to the songwriters. BMI and ASCAP are the main US ones. For bands playing songs they wrote themselves, professional venues will generally require them to register with a PRO and then send the licensing fee to the PRO and the songwriter gets the money later (rather than just paying the songwriter as part of the band's fee, which is legal if they haven't signed with a PRO, but is bad practice and will make their next audit a nightmare, especially if the songwriter later signs with a PRO).
This very much applies to small cover bands playing in music venues, ie the sorts of small places that small bands play. Playing in somewhere that doesn't carry a PRO licence because they aren't really a music venue, like a bar or a mall, is a different story; the PROs vary from time to time on how strictly they enforce on places like that. But even they will often carry a PRO licence for a jukebox in a bar, or for piped-in music in a mall, and it's easy to then notify the PRO of an occasional live performance and pay the relevant fee (which probably isn't much for a one-off in a small venue). Karaoke bars very much do carry PRO licences and keep records of which songs are performed and pay fees. I'm sure buskers don't, though I think some places that license buskers (e.g. London Underground) do include music licensing in the busking licence.
But compulsory licensing means that it's simple: there's a standard schedule of fees and you don't have to check lists of what can and can't be licensed. If you want a good example of how this becomes a nightmare, try having college TV broadcast a concert from a college venue. Because there are moving images synchronised with the music (ie the band performing), you are required to have a synchronisation licence. Even though it's only appearing on a few hundred screens in dorms that have the college's TV channel added to the cable TV.
You negotiate with the band and agree a fee with them for the concert and include the rights for the TV broadcast in that fee. Then you get their setlist. If they write all their own songs then you just say to them "no covers tonight, guys", and you're OK. But if they don't write all their own songs, you have to clear the setlist. So you contact the PROs and they will say "these songs, we have a standard fee; these songs, the publisher (ie record company) has a standard fee; these songs, you negotiate with the publisher; these songs, you negotiate with the songwriter". Then you pay the standard fees and you contact the publishers and songwriters. If you can't get hold of them, or you can't get an agreement in time, or you can't afford what they want you to pay, you now have a choice: shut down the broadcast when that song is on, or tell the band you can't clear that song and they have to adjust the setlist. For a small college venue, you're not going to get the band to change their setlist, so you just have to have three minutes of dead air in the middle of the concert. Then you have to tell the band that they can't deviate from the setlist because you had to clear it for copyright and if they play anything else (unless they wrote it themselves) then it's illegal (or you shut down the broadcast for that song).
This is what every concert would be like if you got rid of mandatory licensing. It would kill mid-sized venues. Not from the costs of the licensing, but from the cost of the bureaucracy. It would make it illegal to spontaneously play a song. I can't think how many bands will spontaneously add a song to their act when something happens: for instance, when Shane MacGowan died recently, loads of people played "Fairytale of New York" in his honour. Having to clear the rights to that with Jem Finer and Shane MacGowan's estate (which was almost certainly not a well-run machine the day after he died) would be a nightmare.
In a normal (ie not TV broadcast) concert, if a song gets played that isn't on a PRO list, you have made a "reasonable effort" to find the songwriter (by checking with the PROs), so you can pay the mandatory license fee to the Copyright Office and then the songwriter can collect that if they find out. But if you need a synchronisation licence (ie to film the concert for broadcast), and they're not on a PRO list, then you need to contact them or their publisher. If you can't find who their publisher is, and you can't contact them, then there's no "reasonable effort" defence - you just can't legally play the song.
What you'd end up with is lists of songs you are and aren't allowed to play, but the biggest venues and bands would be able to play the songs that everyone else isn't allowed to, because they could afford the lawyers needed to negotiate custom licences for them only, while your average 100-ticket venue would just have to ban anything that isn't on a PRO list.
This is a great comment. It was outside the scope of what I was trying to cover, but one of th difficulties is that the licensing is so vastly different for music in all types of situations that it can quickly become the administrative nightmare you describe.
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.
In my experience, arguments of “art form A involves true creative expression while art form B is derivative and facile” usually come down to “I like art form A and don’t like art form B.” I like electronic music and think it sounds good, therefore I think sampling is creative and involves a lot of artistic expression. If you don’t like electronic/rap music, that’s totally fine, but I have a feeling that’s really what’s at issue here.
I said nothing about EDM or hip-hop specifically; this is about methods, not artistic styles. I think it was cheap of the Verve to build a whole song ("Bittersweet Symphony", discussed in another comment in this thread) around a sample from an orchestral recording of a Rolling Stones song. I still like the song, but I don't like that they took the lazy way of creating it by copying a prominent part of the instrumental accompaniment from someone else's recording rather than coming up with something of their own.
That is the crux of the issue. It would be really expensive for the Verve to hire an orchestra. The alternative to the Verve’s production process is not to hire an orchestra. The alternative is to let the concept wither on the vine. You can select the hits ex post facto and argue artists could afford higher costs, but artists don’t know in advance what will become a hit. They’ll just avoid any projects like that.
I’m getting a Puritan work ethic vibe from you. Increasing revenue from increased production IS the point and will lead to more people engaging in musical production! I’m neoliberal, as charged. Division of labor is essential to complex and layered production methods, from CGI films to music using samples.
We don’t expect web devs to reinvent all their tools and codes obtained from the commons in order to prove their skill. What is in or out of the commons is simply a policy choice, not a choice laden with moral implications.
Since you want to indulge in cheap armchair psychoanalysis of people you've never met rather than discussing the issue, I suppose it's fair for me to point out that you obviously have no idea what you're talking about.
"Bittersweet Symphony" was recorded in the late 1990s when the music industry was still making tons of money. The Verve were an internationally successful band signed to a major label. They could have hired all the session musicians they wanted. You don't hire "an orchestra", anyway; you come up with an arrangement and then hire as many musicians as you need to play it, but it doesn't have to be a full symphony orchestra. There are lots of songs recorded with hired orchestras that were never hits, never even intended to be hits.
In any case, from a purely financial viewpoint, the decision the Verve made to sample Andrew Oldham's recording of "The Last Time" was a disaster for them, since, having already made the recording, they had to ask Allen Klein, of all people, for permission to use the same, and his response was, "I want 100% of the publishing or no deal." Even from your purely financial way of looking at it, they would have been better off writing their own arrangement and hiring the musicians.
Comparing web developers to music creators is the same mistake other people (including Yglesias) are making in this thread, assuming that things are analogous when they really aren't, and reducing art to just part of the economy. This is not a "puritan work ethic" view, it's just the view of someone who knows there is more to art than what it contributes to the economy, and also more to creativity than the ability to copy someone else's work.
But even on that level, I don't expect web developers to re-invent network protocols, programming languages, or web frameworks from scratch, but I also don't expect them to copy legally-protected code from other people's projects. And I don't expect musicians to invent instruments or music theory from scratch either. I merely want them to create their own music rather than copy from other people's recordings. So your own analogy, when broken down properly, undercuts the argument you're trying to make.
See- I tend to think of sampling less as “stealing” or even laziness and more like a way to make two pieces of art more directly in conversation with each other. For example, I saw “Fat Ham” in DC last weekend, it’s a remixed Hamlet set in a small southern town with a Black family that owns a smoke shop. I think the intermixing of Hamlet create an interesting conversation between classical theater, Shakespeare, murder and forgiveness, and cycles of violence better than if he had written a play about a Black family in the south. It tied familiar cultural touchstones with new fresh takes that allowed for a layered story. Or another example, Nicki Minaj sampled “Baby got Back” in her song “Anaconda.” That turned the song into a kind of conversation- a man who likes big butts and the woman that has one. It would have been a different song without it. I think you’re losing that sampling itself is a creative choice and it often does something unique that a song or a book or a play wouldn’t do without that riffing on existing IP. Art is just sort of like that generally, everything is inspired in some way by something else. Sampling just makes that conversation more explicit and sometimes more interesting. I think writing off the practice as “less artistic” misses the unique things that happen when new people add their perspectives on something that exists and transforms it. Now, is “Anaconda” an earth shattering piece of cultural conversation? No, but it is fun and it does change the dynamic of it.
I feel like some respondents are taking my objections to sampling as a more general objection to quotation or reference of any kind. This is certainly not my intention and I don't think I've implied it.
A specific example given in the article is of a rapper copying the hi-hat sound from a song. No indication is given in the article that there is any artistic intent behind this copying other than just that the rapper wants to do it. That sort of thing is really what I'm reacting to, the idea that it's okay to just copy from someone else's recording to get a sound you want but are apparently unable to create yourself. No indication is given that there's any kind of "commentary" or "cultural conversation" going on in this case, so it seems like the examples you've given are very different in intent to this, despite using the same technique.
It's certainly valid (or can be, when done well) to make art that references or comments on previous art. It is, as you say, part of the cultural conversation. I guess the question here is whether we accept sampling as a valid way to do that. It certainly isn't the only way to do it.
I haven't seen "Fat Ham", but from your description, it sounds like it's in the same category with films like "Apocalypse Now", which adapts Conrad's "Heart of Darkness" to the Vietnam War. "West Side Story" is, of course, based on "Romeo and Juliet". Writing a new story that takes inspiration from an earlier story, and possibly uses it as a vehicle for commentary, has been done for a long time (it's been argued that every novel is in some sense based on Homer's Odyssey), and it's a different sort of thing from sampling. "Apocalypse Now" doesn't copy footage from a previous film of "Heart of Darkness".
The Nicki Minaj track seems like a better example. There have been "answer records" for a long time; one could point to the Miracles' "Got a Job" replying to the Silhouettes' "Get a Job" back in the '50s, or Lynyrd Skynyrd's "Sweet Home Alabama" as a playful rebuke to Neil Young's "Southern Man" in the '70s. None of these used samples, or even much resembled the original records, but their point was clear. Minaj could have referenced "Baby Got Back" in a variety of ways without actually sampling it, while still making her point, but since she operates in a musical culture where sampling is the norm, she chose to do it that way. Given her specific intent, I won't argue that her choice was wrong, but it is, at least, a very specific usage for a specific purpose.
One of the legal differences between plagiarism and fair use has to do with intent. You can justify a certain amount of copying in the name of commentary or parody, but that doesn't mean it's always okay to copy. A track like "Anaconda" is a lot easier to justify than, say, "U Can't Touch This".
I think part of the art of sampling is *precisely because* it is not a recreation.
IF you look at something like Steinski's "Lessons of Hip Hop" they are cut together from dozens of songs, some recognizable some not, as well as clips from TV shows, movies, and news broadcasts.
In theory, he could have recreated those things. But part of the joy of listening to it is how these cultural artifacts are curated and recontextualized.
As a composition on its own I think it's still pretty interesting, but the fact that it's made WITHOUT creating new material is actually more impressive.
I think you’re trying to derive moral claims from metaphysical ones. It’s true that a composition and a performance are very different things, but their use has become much more similar than had been the case once it was possible to record performances, and then copy, edit, and reproduce them.
If you’re going to do the house analogy, it would be better to imagine a sci-fi scenario where I can either copy your blueprints or scan your house and print a duplicate (or even better, print a duplicate once the scan has already been published).
I don’t like the argument based on incompetence. I think it fails to understand the many kinds of skill that go into music creation. Compare painting and photography. Theres a sense in which Angel Adams needed less physical competence to do his work than Rene Magritte, but there’s a very different set of skills he had that are enabled by the use of the light recording technology.
Finally, I think there’s a mistake in saying that the economic considerations here are philistine. As you say, the value of music is in it being shared with an audience. There are some uses of music that make a huge contribution to someone’s aesthetic appreciation (perhaps attending a live concert by their favorite artist) and some that are much less significant (having something playing in the background to fill time in the elevator). We want to encourage the former more, but both are real aesthetic value. We approximately try to measure this by seeing how much people will pay to have these experiences, and so overall revenue is an approximation of the real musical benefits that music gives to the world. There’s all sorts of reasons why it’s not a perfect measure (starting with the fact that some people just have a lot more money to spend on music than others, even though they get no more musical enjoyment), but I think its also philistinic to say that collage and sampling just aren’t art no matter how much skill went into it or how much true aesthetic enjoyment people derive from it.
>> 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.
IMO, this sort of misses the original intent of copyright and patent law. As I understand it, the idea was that if something has already been created, it's inefficient for society to spend resources recreating it. Why should an artist devote energy to recreating something that already exists when their creative energies could better be spent elsewhere. As long as the incentives to the original creators are reasonable, everyone is better off it existing creativity can be more widely repurposed, rather than having to be recreated.
Even though the idea has been badly corrupted over time, I'm of the opinion that creators have no moral claim to any protection for their creative works. The only reason society should make laws that provide compensation to creators is to incentivize more creation. So any aspect of so-called intellectual property law that's centered around creators' rights is deeply flawed and counter to society's interests.
No, you don't understand the original purpose of copyrights or patents. They have nothing to do with it being "inefficient for society to spend resources recreating" things. Copyrights and patents are time-limited monopolies granted by the government to give creators a reasonable opportunity to profit from their work by giving them control over the rights related to the use of their creations. To the extent that social efficiency has anything to do with it, the argument is that new inventions and new artistic creations are good for society, and people will feel encouraged to create them if they feel they will be able to profit economically from doing so.
However, you misunderstand what I wrote. I wasn't talking about the legal purpose of copyrights. I was talking about the purpose of an artistic creation as a thing in itself. The purpose of a novel is to tell a story; for it to accomplish that purpose, people have to read it. The purpose of a novel, then, is to be read, or at least, the achievement of its real purpose (the communication of whatever point the novelist wanted to make with their story) depends on the book being read. Music is much the same. Its purpose is to be listened to and to bring out certain feelings or thoughts in the listener. It's not created with the intention of being source material for other people to extract bits and pieces from it to re-use in other contexts. That's just not what it's for.
Do you believe creators have any inherent moral right to be able to earn a profit off their creations and control how those creations are used?
I don't and so for me, creators' intentions are irrelevant in terms of what society should be allowed to do with their works. That's the distinction I was making that maybe you've missed. We seem to be coming at this from very different angles and that's fine.
My guess is that we disagree about whether creators have an inherent right to control how their creations are used or that their intentions matter. I don't think they do, except to the extent we decide to give them some control to incentivize them to create.
But reasonable people can disagree about these things.
Well, what I'm talking about isn't really about copyright as such. Copyright is a legal context related to the point Yglesias is trying to argue about how there should be compulsory licensing for samples. My response isn't really about copyright or creator's rights, though. It's more that I think Yglesias, who as far as I know is not a musician or songwriter, and probably has no more real knowledge of music than the average guy in the street, is making a lot of careless assumptions based on ignorance, and consequently making a very poor argument.
One way of looking at compulsory licensing for songs is that a song, as such, is really just a musical idea, but you can't hear a musical idea. You can only hear a performance of a musical idea. Therefore, for the song to truly exist as music, it has to be performed so people can hear it. That's what I mean when I say that the purpose of a song is to be performed (and perhaps recorded). And since different performers (or even the same performer at different times) will interpret a song differently, it is good that there are different performances that explore the song in different ways.
Yglesias tries to argue that if we have compulsory licensing for songs, we should also have it for sampling. But recordings are not the same kind of things as songs. They are not abstract ideas that require something else (performance) to be realized. They ARE the realization of an idea.
I also wonder if Yglesias would support compulsory licensing for his own articles. If we're going to do this for music, why not journalism as well? Can I "write" an article by "sampling" sentences or even whole paragraphs from Yglesias' work and putting it out under my name, with a line buried in the fine print somewhere crediting him for source material, as long as I pay him a legally-mandated fee? That would be the literary equivalent of music sampling. To me, it seems like that would be dishonest.
Matt Yglesias didn't write today's post. It was written by Chris Dalla Riva, who describes himself as "a musician from New Jersey who works on analytics and personalization at Audiomack, a popular music streaming service."
Ah, I missed the byline. Thanks. I still don't get the impression that the author really understands the subject he's discussing though. He says he's a musician, but that could mean almost anything (or nothing), especially since he seems to have a day job in the tech industry.
People can and do reproduce whole paragraphs of writing in new critical works. Up to “several progressive paragraphs” is one limit although it’s highly contextual based on the length of the source work and what might be considered the “heart of the work.” It happens all the time.
Writing production is really more about the complete work than the nuts and bolts of production (i.e. sound production demands more technical skill than sentence production). Your analogy gets composition of lyrics/poetry/prose mixed up with “recording.”
"Even though the idea has been badly corrupted over time, I'm of the opinion that creators have no moral claim to any protection for their creative works."
Matt has has no moral claim on the articles he's written, nor Chris on this one? Do you accept that someone creating something physical has a moral claim, e.g. I spend months building a house, do I have moral claim to what I built?
I don't believe you have an inherent moral claim when it comes to creative works. (edit: delete this next sentence) The key is that in one case the use is rivalrous and the other it isn't.
(edit: add this graf) Also, there's no first order cost to creators when someone else enjoys or reuses their work. So the only compensation that makes sense is whatever is needed to incentivize the creator to keep creating.
Thomas Jefferson is considered by many to be the father of US copyright and patent law and he said it best:
"if nature has made any one thing less susceptible, than all others, of exclusive property, it is the action of the thinking power called an Idea; which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the reciever cannot dispossess himself of it. it’s peculiar character too is that no one possesses the less, because every other possesses the whole of it. he who recieves an idea from me, recieves instruction himself, without lessening mine; as he who lights his taper at mine, recieves light without darkening me."
I don't think you can get the morals to correspond to the rivalrous distinction. If you're on vacation, my camping on your front lawn (or your bed, as long as I wash the sheets afterwards) isn't rivalrous
Yeah. You're right. I was sloppy there and mistakenly conflated rivalrous/non-rivalrous with the moral underpinning stuff.
Rivalrous/non-rivalrous just has to do with the practical justification for not necessarily having to pay the creator each time someone benefits from their work.
I think your mistake is in reversing why someone has a moral claim. Its not what is produced that creates the claim, but that its creation took work and that work creates a moral claim on its product. The work Matt does on these articles creates the moral claim to profit. The NYTimes has a moral claim on the investigations and reporting they do and the right to demand payment for them.
When someone covers a song, both the song writer and the performer do work and they both deserve a moral claim for the different work involved, similar to an architect and builder. A builder who takes architectural plans without paying for them is stealing the work someone else did. When someone plagiarizes, they are stealing by taking that moral claim and not recognizing that it rightfully belongs to someone else.
>> The work Matt does on these articles creates the moral claim to profit.
This is where we disagree. Based on its original intent, copyright and patent laws are about a trade between society and creators for the single purpose of incentivizing creators to create to increase overall wellbeing for society. Creators have no underlying moral claim to profit off their works. They have a legal claim to profit that society grants them as part of a trade or an incentive system. That's it.
(Just to be clear - I'm not suggesting Matt shouldn't have a right to get paid for his work. He should. My claim is only that there's no underlying moral basis for society to have to pay him (eg like out of fairness). The reason he should get paid is due to laws created as part of a bargain to encourage creators to produce. This distinction underpins my contention that this bargain should be set up based on what's in the best interest of society overall, not necessarily what's in Matt's best interest.)
Jefferson's thoughts on this are relatively straightforward (from the same letter as the last quote).
"It has been pretended by some, (and in England especially,) that inventors have a natural and exclusive right to their inventions, and not merely for their own lives, but inheritable to their heirs. But while it is a moot question whether the origin of any kind of property is derived from nature at all, it would be singular to admit a natural and even an hereditary right to inventors. It is agreed by those who have seriously considered the subject, that no individual has, of natural right, a separate property in an acre of land, for instance. By an universal law, indeed, whatever, whether fixed or movable, belongs to all men equally and in common, is the property for the moment of him who occupies it, but when he relinquishes the occupation, the property goes with it. Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. "
"Creators have no underlying moral claim to profit off their works."
"My claim is only that there's no underlying moral basis for society to have to pay him (eg like out of fairness)."
When does someone have a moral claim to profit off their works?
You made the comment before that the key is rivalrous. There are a limited number of people who can attend a concert, therefore the performance there is rivalrous. Unless I misunderstand you, this means that a Taylor Swift singing in a concert has a moral claim, but the Taylor Swift singing into a microphone to create a album track that will stream does not. That seems like an artificial and arbitrary distinction.
> 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.
This statement really betrays your lack of knowledge about how music is created and recorded.
First and foremost, that hi-hat sound was almost certainly created not by Tracy Chapman or even any of the performers, but instead by the recording engineer, which is a technical, non-creative role. The engineer usually works for the studio and does the same thing for hundreds or thousands of songs.
Secondly, it would be actually physically impossible to recreate the sound, because it depends on a lot of factors specific to the recording itself. Time of day, drum kit, other stuff in the room, etc. It’s not a creative exercise to try and make that sound again, any more than it is to copy a Bob Ross painting.
So as a musician in a recording studio, if you like the “Tracy Chapman hi hat sound”, your options are: ask the recording engineering to try and get it as close as possible, or, sample it. I don’t really see much moral or ethical difference between those options.
"Secondly, it would be actually physically impossible to recreate the sound, because it depends on a lot of factors specific to the recording itself."
I think this is overstating things. My understanding is that "Weird Al" Yankovic recreates the music for his parodies/satires, not just deletes the vocal tracks, but his versions are in most cases functionally indistinguishable from the original. (I remember reading an interview years ago where a member of Bare Naked Ladies specifically praised the high degree of musical accuracy of Yankovic's parody of "One Week" -- "Jerry Springer.")
I don’t doubt that most people don’t notice the difference, but if we’re going to be talking about something as specific as how an instrument sounds on the recording, it really is impossible to match the exact sound. I’m not claiming this really matters to the end product, just sticking to the parameters set in the article.
And on the weird al point, I do I have to say, the difference is quite noticeable, even aside from the obviously different singer and lyrics. Take the guitar sound in "Beat It" vs "Eat It", for example. They don't sound anything alike, and it's in a totally different key so it would be hard to confuse the two tracks. Whatever the Barenaked Ladies guy was referring to in that interview, it wasn't that Weird Al was perfectly matching the recording, because as far as I can tell, he doesn't even really *try* to.
No, you're just not understanding what I read, and then extrapolating a bunch of other stuff from it that happens to be quite wrong. It's always kind of funny, in a pathetic sort of way, when people jump to completely unjustified and incorrect conclusions based on their own misreadings of very limited data like a comment or two on a blog post.
I know perfectly well that Tracy Chapman didn't play all the instruments or do the engineering on her album. I never said she did. I referred to "the sound of the hi-hat" because that was the example that Yglesias used. This idea that I must think that Tracy did it herself is your own uncritical inference.
Your statement that the sound was created by the recording engineer is also wrong. The final sound that we hear is the result of multiple factors: there's the original sound of the hi-hat as played by the drummer (or generated by a drum machine, in which case it still has an earlier source elsewhere, either in some previous recording that was sampled, or some algorithm that generated it), then there's the microphone that recorded the hi-hat (chosen by the recording engineer but not invented by them), then there's the way the recorded sound was processed in the mix, which may have been done by the recording engineer or someone else... and then there's the mastering engineer's contribution... it's not a simple thing. I'm not even giving a complete list here, just some of the more obvious factors.
Duplicating a particular sound in the studio is done all the time. It doesn't have to be so exact that it depends on the time of day or the other stuff you mention. The important point, the part any actual musical artist or studio professional would understand, is that there's a certain quality of the sound that you want, and if you know what you're doing in the studio, you should be able to get that quality even if the result isn't 100% identical to the earlier record you had in mind.
I think if you tell a good recording engineer that he's "purely technical" and "not creative", you'll get a good lecture on how wrong you are.
I've got nothing on you in that regard. But if you don't consider yourself creative, that's fine with me. Other engineers I've worked with would not appreciate being described that way.
> It's always kind of funny, in a pathetic sort of way, when people jump to completely unjustified and incorrect conclusions based on their own misreadings of very limited data like a comment or two on a blog post.
Incredibly ironic coming from the guy who couldn't bother to look at who the author of the piece was before spouting off.
EDIT: To make the takeaway explicit, "we were able to produce a new song/idea/... that wouldn't be possible working alone" is an argument for copying, not against (as someone who wants to hear good music)
When I wrote papers using method X to prove new result Y, was that a "workaround for incompetence" and I should have come up with a new proof for X? This seems to misunderstand both the point of copying (standing on the shoulders of giants and all that) and the emotional response - I want people to cite my papers!
That has to be the least sensible analogy I've come across in quite a while. Using proven methods in mathematics is not at all the same thing as copying someone else's artistic work. If you can't even understand that, I don't know what to tell you.
Mathematicians constantly use artistic analogies, down to talking about being inspired by works of others. But the funny thing is I think you're right - I've definitely proved things which I would be too incompetent to do from scratch. But that's a good thing, because the benefit to others (in music or math) is the final product
The thing is, though, you still have to do the work yourself, even if you're relying on past work so that you don't have to start from ground zero in every paper you write, and spend the first thousand pages establishing number theory from scratch. You aren't just copying someone else's work; you're building on principles that previous work established. Sampling would be more like if you took a chunk of someone else's proof and just embedded in your own paper as part of your work. Even that is somewhat misleading, though, since math and music are not the same thing and don't follow the same rules. You can't copyright mathematical formulas.
Sampling is essentially a form of plagiarism for sound recordings, just copying someone else's work instead of creating something new. Now, the counter-argument is that the plagiarized material is being placed in a new context so that the result is a new work, but why should that argument be considered valid for music when it isn't for literature? Try writing a novel by "remixing" "samples" taken from other novels that are still under copyright and see what happens to you. The lawsuit won't be fun.
This is obviously not copyright anymore but if I wrote a novel and I had a character say "It was the best of times, it was the worst of times" I'm _clearly_ sampling A Tale of Two Cities, but that strikes me as the sort of thing that should be allowed.
That seems somewhat akin to sampling to me.
If I copy the entire speech ... that's starting to get long enough that it's beyond the length of a "sample"
Sure, that's where we get into questions about the difference between a "reference" or an "allusion" or a "parody" and mere plagiarism. You can do that in music too, but the usual way you do it is by having an instrument play a phrase that refers to an earlier work.
In the vast majority of cases I'm aware of, though, when someone uses a sample from someone else's music in their own recording, it's not done as an artistic reference that people are expected to understand or that adds meaning to the music. It's just done because somebody liked the sound and thought it would fit. There are exceptions, but they tend to be really obvious, like Kanye using a sample (properly licensed) from King Crimson's "21st Century Schizoid Man" in his track "Power".
It may be possible for reasonable people to disagree, but I wouldn't say that quoting from a book is "sampling" in the same sense as what's done in music these days, because books are not a performance medium in the same way that a music recording is.
"One reason I've never been a fan of sampling is that it's basically a workaround for musical incompetence."
Workarounds for incompetence are good, actually (for society).
It is *technically* possible to sing two simultaneous vocal lines, but instead we usually just hire two people to sing simultaneously, or record and combine two separate tracks. Should we really try to teach everyone to become a Tuvan throat singer for the exact same aural output? Similarly: it is physically possible to build a bass so large and loud enough that you don't need electric speakers for it. But if you don't need a bodybuilder's muscles to play the bass, then you can focus more on creating cool music and less on working out.
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).
Totally agree with this. There is no other form of intellectual property where anybody would even fathom you having those rights past your death ... other than trademarks which are a whole different thing and very different imo
That’s true. I wasn’t careful enough with my phrasing. Music is generally life of the author + 70 years. Patents are 20 years to my understanding. So the minimum length for music is 70 years. Assuming someone lives an average life span, you are looking at protection for close to 150 years which I think is hard to justify. If it were a short fixed term like a patent, the persisting after death does make sense.
I was actually almost done writing this as a response to Ethics Gradient when your response popped up, so I'll put it here instead:
Right of publicity (a.k.a. "name, image, likeness rights") also survives death for some period of time as a matter of law in most, if not all, US states, sometimes longer than copyright. (Indiana allows it for 100 years post-death; Tennessee technically only allows it for 10 years post-death, but it can be indefinitely renewed by the estate/heirs.)
Trade secrets last as long as the criteria for qualifying as such are met and thus theoretically can last forever, not being dependent on the life of the original creator at all.
Moral rights under US law are the only type of intellectual property that specifically terminate on the creator's death. (And I suppose also "reputation," if you classify that as a form of intellectual property, since defamation claims can't be based on post-death statements about the decedent.)
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.
Do compulsary license payments go to the songwriter or the person who owns the recording? Like, is Taylor paying compulsary license fees to the owner of the recordings?
This reminds me of a weird feature of Arabic pop music: Love songs are usually--if not almost invariably--written in the second person masculine,* even when the singer is a man and even when the lyrics make as much or even more sense as being addressed to a woman. (And no, these aren't same-sex love songs, this is the Middle East we're talking about.) To me, who grew up with this stuff, it's perfectly normal, but it throws off a lot of language learners to recognize that Amr Diab's impassioned "habibis" in "Nour El Ain" are treated as being addressed to a woman only by the universal unspoken agreement to default to the masculine in songwriting. I'm not sure if this convention is to make it easier to market songs (since Arabic singers usually don't write their own songs, having a one-gender convention makes it easy for lyricists to write for both male and female singers) or arises from rhyme/prosody considerations, but it's there.
*Note: Yes, Arabic distinguishes gender in the second person. As do most Semitic languages.
Yeah, Nour El Ain was super-popular when it came out and even trickled in marginally onto Western radio marginally. If you've ever heard an Arabic pop song, it's probably that one.
Is there a different number of syllables in the masculine or feminine second person? Are there traditional rhyme or alliteration schemes that might be changed by shifting the gender?
It can affect the number of syllables depending on the word and the dialect/register. It also can affect the rhyme; for instance, in Egyptian and Levantine Arabic, it changes the quality of the vowel preceding the final -k that marks the second-person possessive (i.e. "your X") and in most varieties of Arabic it changes the final vowel of second-person past-tense verbs.
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.
“Art form based on wholesale appropriation inexplicably finds itself having difficulties with copyright.”
It’s a funny quip, but this applies to a significant portion of rock music in the 70s. I’m a huge Zeppelin guy but a decent portion of the catalogue is just an appropriation of Howlin Wolf and others.
I don’t see any ethical or moral daylight between that and sampling.
There are certainly some songs that Led Zeppelin should have been sued for, and some they were sued for. "Stairway to Heaven" is far from the worst example. "Black Mountain Side" is an obvious and blatant ripoff (much more so than "Stairway") of Bert Jansch's 1967 recording of "Black Water Side", but Jansch never had the money to hire a lawyer and file suit.
I wouldn't say this sort of thing is "a decent portion of their catalogue", though. Many of their songs aren't derived from older songs, and sometimes they did give proper credit (e.g. "When the Levee Breaks" is credited to Zeppelin and Memphis Minnie, which is fair since they set her lyrics and melody to a completely different accompaniment). It is disappointing, though, that they were not consistent about crediting songs properly.
Nor would I say this "applies to a significant portion of rock music in the 70s". Most bands did credit songwriters accurately. There are also a lot of songs built on generic elements (the 12-bar blues form, for example) that aren't copyrightable.
Great point on the 12-bar blues. Thought this Polyphonic video raises interesting authorship questions on how the blues is built on folk tradition and folk tradition is more collective. There's a 1941 interview with Muddy Waters (6 minute mark) where he says he learned his song from Son House which was similar to Robert Johnston's Walkin' Blue but the song was out way before Robert recorded it.
I've been down so many Zeppelin youtube black holes. Love them. My only hot take with the "appropriation" bit is ... ok, but just listen to Page and Bonham. I don't think it's hyperbolic to say Bonham's grooves were unlike anything that had ever been played before.
+1 re the Onion headline issue, as I have a similar reaction. I'm not going to claim sampling is an inferior artform, but, as lawyer, all I can say is that I would tell a client they should get authorization from the necessary rights holders before sampling a work unless they have a really clear fair use defense (which will rarely be true for commercially released music) or otherwise have a solid argument for why copyright shouldn't even apply, and you probably should still get authorization because it will almost always be cheaper than defending a lawsuit.
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.
I think the cultural discussion around “appropriation” and the post-Napster copyright discussion could learn a lot from each other, and complicate the simplistic views that many people take of one or the other.
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.
I don't think the piece argues that the costs should be the same, but that samplers and covering artists should be have the same rights to pay a fee for a non-negotiable license. That's completely compatible with samples costing more
I see the value in a set formula for non-negotiable licenses, but I think disinterested makes a good point with the famous guitar lick example. If we use a set time based formula it will be used to relatively cheaply license short but iconic parts of songs. I don't think it makes the whole idea a "non-starter" but it is worth considering.
To argue with myself, you could use the same argument to do away with compulsory licensing for songs as well, since the perceived value of a cover of "stairway to heaven" is much greater than a cover of some lesser known Led Zeppelin song. I don't really have a good reason to say why this is OK but compulsory licenses for samples is not.
Why does that make it a non-starter? What's so bad about a world where that happens? I don't think it's going to substantially reduce the incentive to create new music and if it means we get to use great bits of music more broadly that's great.
I’m not talking about covers in my comment. I’m saying different samples from the same song can be wildly different in terms of their usage and recognizability. If you sampled the hi-hat, as the article says, that is a trivial sample that no one would recognize. If you sampled the guitar, people would hear it as “the guitar from fast car” and arguably you should owe more royalties because it’s a key component of the song.
My point is that a scheme that treats those samples as equivalent is not one recording artists would support.
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.
I largely agree, but the very literal protection from someone copying your work word for word and selling it shouldn't be allowed for some amount of time... Maybe 25-50 years tops.
Agreed. I think ideally intellectual property protections are very strong for some limited amount of time. For a long time it was 28 years with an option to extend another 28, which feels like an ample amount of time.
I agree that it's desierable that some kind of compensation be given for that use to incentivize creation but I don't think that (in an ideal world) that should give the author the ability to, say, refuse to sell their work in a particular area or format even within that time period.
For instance, even if you believe that your work is designed to be read if you refuse to allow an audiobook or if you try and refuse to let your story be included in an anthology I think it's totally appropriate that there be a compulsory licensing scheme where the government says, ok you get this much in royalties per copy of the work but they get to create an audiobook/anthology even if you don't approve.
To be clear, this is what is ideal, I realize in actuality there will be all sorts of concerns and complications which might make this a bad idea. But it shouldn't be ruled out in principle.
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."
Loved the read, thanks! The bit about samples containing samples is craaaazy. In a couple decades this scheme could have literal hundreds or thousands of people getting paid out for a huge web of samples of samples of samples. Not intractable but logistically challenging.
Thanks for having me! I really enjoyed writing this piece.
Fixing copyright is certainly on the SB reform agenda. Thank you for writing this piece.
My family had to deal with a bunch of music copyright law when handling my aunt and uncle's estate and it was not pleasant. My aunt was a performer while my uncle was a producer, writer, and performer.
This rules, and I’d love to see more guest posts like this about niche topics!
Noted!
Would have never been exposed to this ...well written and interesting!
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
Sorry to be That Guy, but based on my read of the order it's not that it "doesn't count as plagiarism," but that it's that it's fair use (as to which both the "Character of the Use" and "Effect on the Market Value of the Work" are factors in making the determination), for which the gloss is more like "this implicates the copyright holder's rights, but it's okay and there's no remedy warranted."
In layman's terms instead of copyright-legalese this is closer to "it's plagiarism but that's okay" than "this isn't plagiarism."
Fair use is one of the fuzzier parts of copyright law and typically an affirmative defense, which makes it hard to know in advance if an appropriator is coloring inside the lines because the scope of per se rights is subject to this four-factor balancing test, although some uses are significantly more likely to be protected than others.
Thank you for being That Guy, this helps!
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.
A sample is by definition faithfully reproduced, because it is the recording itself (though it can have additional modifications). A cover has much more flexibility - just look at Johnny Cash’s cover of “Hurt”
https://m.youtube.com/watch?v=8AHCfZTRGiI
or Alanis Morisette’s cover of “My Humps”.
https://m.youtube.com/watch?v=VJg4rwDkkBA
And as in the case of Cash's "Hurt" often the cover is far better than the original and vastly increases its popularity. One wonders if Leonard Cohen should have paid Jeff Buckley for his cover of "Hallellujah" rather than the other way around. (Same for "A Little Help from My Friends" and countless others.)
Cash’s version of “Hurt” is actually my go-to for testing headphones and earbuds.
Lots of samples involve interpolations, which aren’t really faithful reproduction.
"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."
My instincts pull the opposite direction. If a license is compulsory, then you have no responsibility or capability to police how people use samples. If it is voluntary, then you open yourself up to scrutiny every time you approve use of a sample, which incentivizes denying a license even when you don't object.
This is a good point - but fundamentally the logic of copyright is to give the creator control. Whether there is scrutiny of what the creator does with that control is second order. And since the author is making a case for why there should be an exception to creator control in this instance, he could have addressed some of the objections to giving up control.
Yes, but the reason that's the logic is that creator control is supposed to incentivize creation in general. This post is largely arguing that the current logic, when applied to sampling, does the opposite.
I appreciate the concern you outlined, but it doesn't make any sense to me. An artist can't prevent Gary Glitter from recording a faithful cover of their song, but they should be able to stop a three-second snare sample from being used in a rap song's hook because they interpret the lyrics to be violent? Seems backwards, if anything. To be clear, I agree with you and the author, and both licenses should be compulsory.
Yeah, it makes me think of "Who I Smoke" by Jacksonville rapper Julio Foolio. He samples Vanessa Carlton's "A Thousand Miles" on a song where he explicitly brags about the multiple people he or his crew actually murdered in real life. If I was Vanessa Carlton, I would not be happy about this, and would want a way to stop it!
Now granted it did happen so perhaps she was fine with it, or maybe she doesn't think its worth the hassle to fight the legal battle to stop, but still, I think I'd want that option to stop this from happening.
I'd likely want that option too, if I were an artist. But "what do artists want?" is a different question from "what is best for society?"
I think the first and most obvious counterargument to that would be that parody is protected.
The "Weird Al" exception.
Except Weird Al seeks permission for his works, both presumably because he doesn't want to spend money defending court cases even if he'd win them and because many of his songs probably wouldn't actually pass the SCOTUS standard for being parodies. (Yankovic arguably lucked out with "Amish Paradise," which infamously involved confusion over whether Coolio had authorized it or not, because it's pretty squarely within the parody exception.)
Yeah, a lot of people don't get this:
The parody exception is not "you can use something copyrighted without permisison in a parody". It is "you can use something copyrighted without permission if you are parodying that copyrighted work". If the target of the parody is not the work itself that you are using, then it's not a fair use.
Most Weird Al songs are parodying something, but they are often using a popular song to parody something else.
To the extent that I have any opinion, it seems more logical that both written music and lyrics and the actual song produced should be under sole control of the creator. Why have a centrally-fixed price for licensing for the former at all?
But in turn, copyright terms need to be curtailed. 50 years, inheritable only by a surviving spouse, child, or grandchild with no extension possible.
But honestly, I don't really see it as important and don't know if I'm smoking something.
One reason for compulsory licensing of covers is that it also applies to public performance. Without it, it would be a copyright violation to sing (or otherwise perform) any copyrighted song in a public place. That would make buskers and karaoke bars illegal, as they would need song-by-song licensing. Similarly, there are plenty of musicians who will do a live cover of a different song every night on their tour. That's only legal because they will use compulsory licensing for cover songs.
Releasing a recorded version ("phonorecord" to use the language of the copyright acts, which is where ℗ comes from) is different and I could see an argument ab initio for restricting that to operating with permission. But it's absolutely against the traditions of the music industry for the last century, and changing that would be a major change to the law.
Fair point.
Though I doubt most cover bands, let alone buskers, are actually paying licensing fees in the first place unless they get good enough to tour in their own right.
I don't think the former paragraph becomes impossible here. If my half-assed understanding is right, there are cataloguing/intermediary firms who build lists of music for the sorts of purposes you've described and lease them to end-users, then ensure licensing fees go where they should. If that's correct, then doesn't an end to mandatory licensing just require those firms to get permission from/negotiate prices with the record labels and artists with whom they already communicate and to whom they already send money?
Most music venues carry licenses with "performing rights organisations" (PROs) and just take a note of the setlist for any given night and send it with a fee to the PRO, which then distributes the money to the songwriters. BMI and ASCAP are the main US ones. For bands playing songs they wrote themselves, professional venues will generally require them to register with a PRO and then send the licensing fee to the PRO and the songwriter gets the money later (rather than just paying the songwriter as part of the band's fee, which is legal if they haven't signed with a PRO, but is bad practice and will make their next audit a nightmare, especially if the songwriter later signs with a PRO).
This very much applies to small cover bands playing in music venues, ie the sorts of small places that small bands play. Playing in somewhere that doesn't carry a PRO licence because they aren't really a music venue, like a bar or a mall, is a different story; the PROs vary from time to time on how strictly they enforce on places like that. But even they will often carry a PRO licence for a jukebox in a bar, or for piped-in music in a mall, and it's easy to then notify the PRO of an occasional live performance and pay the relevant fee (which probably isn't much for a one-off in a small venue). Karaoke bars very much do carry PRO licences and keep records of which songs are performed and pay fees. I'm sure buskers don't, though I think some places that license buskers (e.g. London Underground) do include music licensing in the busking licence.
But compulsory licensing means that it's simple: there's a standard schedule of fees and you don't have to check lists of what can and can't be licensed. If you want a good example of how this becomes a nightmare, try having college TV broadcast a concert from a college venue. Because there are moving images synchronised with the music (ie the band performing), you are required to have a synchronisation licence. Even though it's only appearing on a few hundred screens in dorms that have the college's TV channel added to the cable TV.
You negotiate with the band and agree a fee with them for the concert and include the rights for the TV broadcast in that fee. Then you get their setlist. If they write all their own songs then you just say to them "no covers tonight, guys", and you're OK. But if they don't write all their own songs, you have to clear the setlist. So you contact the PROs and they will say "these songs, we have a standard fee; these songs, the publisher (ie record company) has a standard fee; these songs, you negotiate with the publisher; these songs, you negotiate with the songwriter". Then you pay the standard fees and you contact the publishers and songwriters. If you can't get hold of them, or you can't get an agreement in time, or you can't afford what they want you to pay, you now have a choice: shut down the broadcast when that song is on, or tell the band you can't clear that song and they have to adjust the setlist. For a small college venue, you're not going to get the band to change their setlist, so you just have to have three minutes of dead air in the middle of the concert. Then you have to tell the band that they can't deviate from the setlist because you had to clear it for copyright and if they play anything else (unless they wrote it themselves) then it's illegal (or you shut down the broadcast for that song).
This is what every concert would be like if you got rid of mandatory licensing. It would kill mid-sized venues. Not from the costs of the licensing, but from the cost of the bureaucracy. It would make it illegal to spontaneously play a song. I can't think how many bands will spontaneously add a song to their act when something happens: for instance, when Shane MacGowan died recently, loads of people played "Fairytale of New York" in his honour. Having to clear the rights to that with Jem Finer and Shane MacGowan's estate (which was almost certainly not a well-run machine the day after he died) would be a nightmare.
In a normal (ie not TV broadcast) concert, if a song gets played that isn't on a PRO list, you have made a "reasonable effort" to find the songwriter (by checking with the PROs), so you can pay the mandatory license fee to the Copyright Office and then the songwriter can collect that if they find out. But if you need a synchronisation licence (ie to film the concert for broadcast), and they're not on a PRO list, then you need to contact them or their publisher. If you can't find who their publisher is, and you can't contact them, then there's no "reasonable effort" defence - you just can't legally play the song.
What you'd end up with is lists of songs you are and aren't allowed to play, but the biggest venues and bands would be able to play the songs that everyone else isn't allowed to, because they could afford the lawyers needed to negotiate custom licences for them only, while your average 100-ticket venue would just have to ban anything that isn't on a PRO list.
This is a great comment. It was outside the scope of what I was trying to cover, but one of th difficulties is that the licensing is so vastly different for music in all types of situations that it can quickly become the administrative nightmare you describe.
Like Eminem sampling (without permission) French pianist Jacques Loussier’s song Pulsion on the track ‘Kill You’
https://en.wikipedia.org/wiki/Kill_You_(Eminem_song)
Except you can use for free if you make it a parody.
See 2 live crew
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.
This season of dissect will really give you an appreciation for the artistry of sampling, whether you're a fan of rap or not.
https://dissectpodcast.com/tag/my-beautiful-dark-twisted-fantasy/
In my experience, arguments of “art form A involves true creative expression while art form B is derivative and facile” usually come down to “I like art form A and don’t like art form B.” I like electronic music and think it sounds good, therefore I think sampling is creative and involves a lot of artistic expression. If you don’t like electronic/rap music, that’s totally fine, but I have a feeling that’s really what’s at issue here.
I said nothing about EDM or hip-hop specifically; this is about methods, not artistic styles. I think it was cheap of the Verve to build a whole song ("Bittersweet Symphony", discussed in another comment in this thread) around a sample from an orchestral recording of a Rolling Stones song. I still like the song, but I don't like that they took the lazy way of creating it by copying a prominent part of the instrumental accompaniment from someone else's recording rather than coming up with something of their own.
(1) You enjoy Bittersweet Symphony.
(2) You don’t like the way it was created.
That is the crux of the issue. It would be really expensive for the Verve to hire an orchestra. The alternative to the Verve’s production process is not to hire an orchestra. The alternative is to let the concept wither on the vine. You can select the hits ex post facto and argue artists could afford higher costs, but artists don’t know in advance what will become a hit. They’ll just avoid any projects like that.
I’m getting a Puritan work ethic vibe from you. Increasing revenue from increased production IS the point and will lead to more people engaging in musical production! I’m neoliberal, as charged. Division of labor is essential to complex and layered production methods, from CGI films to music using samples.
We don’t expect web devs to reinvent all their tools and codes obtained from the commons in order to prove their skill. What is in or out of the commons is simply a policy choice, not a choice laden with moral implications.
Since you want to indulge in cheap armchair psychoanalysis of people you've never met rather than discussing the issue, I suppose it's fair for me to point out that you obviously have no idea what you're talking about.
"Bittersweet Symphony" was recorded in the late 1990s when the music industry was still making tons of money. The Verve were an internationally successful band signed to a major label. They could have hired all the session musicians they wanted. You don't hire "an orchestra", anyway; you come up with an arrangement and then hire as many musicians as you need to play it, but it doesn't have to be a full symphony orchestra. There are lots of songs recorded with hired orchestras that were never hits, never even intended to be hits.
In any case, from a purely financial viewpoint, the decision the Verve made to sample Andrew Oldham's recording of "The Last Time" was a disaster for them, since, having already made the recording, they had to ask Allen Klein, of all people, for permission to use the same, and his response was, "I want 100% of the publishing or no deal." Even from your purely financial way of looking at it, they would have been better off writing their own arrangement and hiring the musicians.
Comparing web developers to music creators is the same mistake other people (including Yglesias) are making in this thread, assuming that things are analogous when they really aren't, and reducing art to just part of the economy. This is not a "puritan work ethic" view, it's just the view of someone who knows there is more to art than what it contributes to the economy, and also more to creativity than the ability to copy someone else's work.
But even on that level, I don't expect web developers to re-invent network protocols, programming languages, or web frameworks from scratch, but I also don't expect them to copy legally-protected code from other people's projects. And I don't expect musicians to invent instruments or music theory from scratch either. I merely want them to create their own music rather than copy from other people's recordings. So your own analogy, when broken down properly, undercuts the argument you're trying to make.
See- I tend to think of sampling less as “stealing” or even laziness and more like a way to make two pieces of art more directly in conversation with each other. For example, I saw “Fat Ham” in DC last weekend, it’s a remixed Hamlet set in a small southern town with a Black family that owns a smoke shop. I think the intermixing of Hamlet create an interesting conversation between classical theater, Shakespeare, murder and forgiveness, and cycles of violence better than if he had written a play about a Black family in the south. It tied familiar cultural touchstones with new fresh takes that allowed for a layered story. Or another example, Nicki Minaj sampled “Baby got Back” in her song “Anaconda.” That turned the song into a kind of conversation- a man who likes big butts and the woman that has one. It would have been a different song without it. I think you’re losing that sampling itself is a creative choice and it often does something unique that a song or a book or a play wouldn’t do without that riffing on existing IP. Art is just sort of like that generally, everything is inspired in some way by something else. Sampling just makes that conversation more explicit and sometimes more interesting. I think writing off the practice as “less artistic” misses the unique things that happen when new people add their perspectives on something that exists and transforms it. Now, is “Anaconda” an earth shattering piece of cultural conversation? No, but it is fun and it does change the dynamic of it.
Thanks for the thoughtful reply!
I feel like some respondents are taking my objections to sampling as a more general objection to quotation or reference of any kind. This is certainly not my intention and I don't think I've implied it.
A specific example given in the article is of a rapper copying the hi-hat sound from a song. No indication is given in the article that there is any artistic intent behind this copying other than just that the rapper wants to do it. That sort of thing is really what I'm reacting to, the idea that it's okay to just copy from someone else's recording to get a sound you want but are apparently unable to create yourself. No indication is given that there's any kind of "commentary" or "cultural conversation" going on in this case, so it seems like the examples you've given are very different in intent to this, despite using the same technique.
It's certainly valid (or can be, when done well) to make art that references or comments on previous art. It is, as you say, part of the cultural conversation. I guess the question here is whether we accept sampling as a valid way to do that. It certainly isn't the only way to do it.
I haven't seen "Fat Ham", but from your description, it sounds like it's in the same category with films like "Apocalypse Now", which adapts Conrad's "Heart of Darkness" to the Vietnam War. "West Side Story" is, of course, based on "Romeo and Juliet". Writing a new story that takes inspiration from an earlier story, and possibly uses it as a vehicle for commentary, has been done for a long time (it's been argued that every novel is in some sense based on Homer's Odyssey), and it's a different sort of thing from sampling. "Apocalypse Now" doesn't copy footage from a previous film of "Heart of Darkness".
The Nicki Minaj track seems like a better example. There have been "answer records" for a long time; one could point to the Miracles' "Got a Job" replying to the Silhouettes' "Get a Job" back in the '50s, or Lynyrd Skynyrd's "Sweet Home Alabama" as a playful rebuke to Neil Young's "Southern Man" in the '70s. None of these used samples, or even much resembled the original records, but their point was clear. Minaj could have referenced "Baby Got Back" in a variety of ways without actually sampling it, while still making her point, but since she operates in a musical culture where sampling is the norm, she chose to do it that way. Given her specific intent, I won't argue that her choice was wrong, but it is, at least, a very specific usage for a specific purpose.
One of the legal differences between plagiarism and fair use has to do with intent. You can justify a certain amount of copying in the name of commentary or parody, but that doesn't mean it's always okay to copy. A track like "Anaconda" is a lot easier to justify than, say, "U Can't Touch This".
Yglesias is not the author of this piece. It’s a guest column.
Yes, my mistake, thanks.
I think part of the art of sampling is *precisely because* it is not a recreation.
IF you look at something like Steinski's "Lessons of Hip Hop" they are cut together from dozens of songs, some recognizable some not, as well as clips from TV shows, movies, and news broadcasts.
https://www.youtube.com/watch?v=OMEVqCz8mNw
In theory, he could have recreated those things. But part of the joy of listening to it is how these cultural artifacts are curated and recontextualized.
As a composition on its own I think it's still pretty interesting, but the fact that it's made WITHOUT creating new material is actually more impressive.
I think you’re trying to derive moral claims from metaphysical ones. It’s true that a composition and a performance are very different things, but their use has become much more similar than had been the case once it was possible to record performances, and then copy, edit, and reproduce them.
If you’re going to do the house analogy, it would be better to imagine a sci-fi scenario where I can either copy your blueprints or scan your house and print a duplicate (or even better, print a duplicate once the scan has already been published).
I don’t like the argument based on incompetence. I think it fails to understand the many kinds of skill that go into music creation. Compare painting and photography. Theres a sense in which Angel Adams needed less physical competence to do his work than Rene Magritte, but there’s a very different set of skills he had that are enabled by the use of the light recording technology.
Finally, I think there’s a mistake in saying that the economic considerations here are philistine. As you say, the value of music is in it being shared with an audience. There are some uses of music that make a huge contribution to someone’s aesthetic appreciation (perhaps attending a live concert by their favorite artist) and some that are much less significant (having something playing in the background to fill time in the elevator). We want to encourage the former more, but both are real aesthetic value. We approximately try to measure this by seeing how much people will pay to have these experiences, and so overall revenue is an approximation of the real musical benefits that music gives to the world. There’s all sorts of reasons why it’s not a perfect measure (starting with the fact that some people just have a lot more money to spend on music than others, even though they get no more musical enjoyment), but I think its also philistinic to say that collage and sampling just aren’t art no matter how much skill went into it or how much true aesthetic enjoyment people derive from it.
> I don’t like the argument based on incompetence
It's fundamentally silly. No great artist *ever* has produced their work 100% alone.
I mean, shit, Einstein couldn't even work out the math behind his theories and had others do it for him.
>> 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.
IMO, this sort of misses the original intent of copyright and patent law. As I understand it, the idea was that if something has already been created, it's inefficient for society to spend resources recreating it. Why should an artist devote energy to recreating something that already exists when their creative energies could better be spent elsewhere. As long as the incentives to the original creators are reasonable, everyone is better off it existing creativity can be more widely repurposed, rather than having to be recreated.
Even though the idea has been badly corrupted over time, I'm of the opinion that creators have no moral claim to any protection for their creative works. The only reason society should make laws that provide compensation to creators is to incentivize more creation. So any aspect of so-called intellectual property law that's centered around creators' rights is deeply flawed and counter to society's interests.
>I'm of the opinion that creators have no moral claim to any protection for their creative works<
Agreed. The only consideration is properly incentivizing them to serve the greater good. If this is taken care of, they'll make a good living.
No, you don't understand the original purpose of copyrights or patents. They have nothing to do with it being "inefficient for society to spend resources recreating" things. Copyrights and patents are time-limited monopolies granted by the government to give creators a reasonable opportunity to profit from their work by giving them control over the rights related to the use of their creations. To the extent that social efficiency has anything to do with it, the argument is that new inventions and new artistic creations are good for society, and people will feel encouraged to create them if they feel they will be able to profit economically from doing so.
However, you misunderstand what I wrote. I wasn't talking about the legal purpose of copyrights. I was talking about the purpose of an artistic creation as a thing in itself. The purpose of a novel is to tell a story; for it to accomplish that purpose, people have to read it. The purpose of a novel, then, is to be read, or at least, the achievement of its real purpose (the communication of whatever point the novelist wanted to make with their story) depends on the book being read. Music is much the same. Its purpose is to be listened to and to bring out certain feelings or thoughts in the listener. It's not created with the intention of being source material for other people to extract bits and pieces from it to re-use in other contexts. That's just not what it's for.
Do you believe creators have any inherent moral right to be able to earn a profit off their creations and control how those creations are used?
I don't and so for me, creators' intentions are irrelevant in terms of what society should be allowed to do with their works. That's the distinction I was making that maybe you've missed. We seem to be coming at this from very different angles and that's fine.
My guess is that we disagree about whether creators have an inherent right to control how their creations are used or that their intentions matter. I don't think they do, except to the extent we decide to give them some control to incentivize them to create.
But reasonable people can disagree about these things.
Well, what I'm talking about isn't really about copyright as such. Copyright is a legal context related to the point Yglesias is trying to argue about how there should be compulsory licensing for samples. My response isn't really about copyright or creator's rights, though. It's more that I think Yglesias, who as far as I know is not a musician or songwriter, and probably has no more real knowledge of music than the average guy in the street, is making a lot of careless assumptions based on ignorance, and consequently making a very poor argument.
One way of looking at compulsory licensing for songs is that a song, as such, is really just a musical idea, but you can't hear a musical idea. You can only hear a performance of a musical idea. Therefore, for the song to truly exist as music, it has to be performed so people can hear it. That's what I mean when I say that the purpose of a song is to be performed (and perhaps recorded). And since different performers (or even the same performer at different times) will interpret a song differently, it is good that there are different performances that explore the song in different ways.
Yglesias tries to argue that if we have compulsory licensing for songs, we should also have it for sampling. But recordings are not the same kind of things as songs. They are not abstract ideas that require something else (performance) to be realized. They ARE the realization of an idea.
I also wonder if Yglesias would support compulsory licensing for his own articles. If we're going to do this for music, why not journalism as well? Can I "write" an article by "sampling" sentences or even whole paragraphs from Yglesias' work and putting it out under my name, with a line buried in the fine print somewhere crediting him for source material, as long as I pay him a legally-mandated fee? That would be the literary equivalent of music sampling. To me, it seems like that would be dishonest.
Matt Yglesias didn't write today's post. It was written by Chris Dalla Riva, who describes himself as "a musician from New Jersey who works on analytics and personalization at Audiomack, a popular music streaming service."
Ah, I missed the byline. Thanks. I still don't get the impression that the author really understands the subject he's discussing though. He says he's a musician, but that could mean almost anything (or nothing), especially since he seems to have a day job in the tech industry.
People can and do reproduce whole paragraphs of writing in new critical works. Up to “several progressive paragraphs” is one limit although it’s highly contextual based on the length of the source work and what might be considered the “heart of the work.” It happens all the time.
Writing production is really more about the complete work than the nuts and bolts of production (i.e. sound production demands more technical skill than sentence production). Your analogy gets composition of lyrics/poetry/prose mixed up with “recording.”
https://www.inc.com/articles/2000/11/20951.html
"Even though the idea has been badly corrupted over time, I'm of the opinion that creators have no moral claim to any protection for their creative works."
Matt has has no moral claim on the articles he's written, nor Chris on this one? Do you accept that someone creating something physical has a moral claim, e.g. I spend months building a house, do I have moral claim to what I built?
Are we really still doing “you wouldn’t download a car!”, in 2023?
Just found out that I need a new car, and would totally download one if I could.
I don't believe you have an inherent moral claim when it comes to creative works. (edit: delete this next sentence) The key is that in one case the use is rivalrous and the other it isn't.
(edit: add this graf) Also, there's no first order cost to creators when someone else enjoys or reuses their work. So the only compensation that makes sense is whatever is needed to incentivize the creator to keep creating.
Thomas Jefferson is considered by many to be the father of US copyright and patent law and he said it best:
"if nature has made any one thing less susceptible, than all others, of exclusive property, it is the action of the thinking power called an Idea; which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the reciever cannot dispossess himself of it. it’s peculiar character too is that no one possesses the less, because every other possesses the whole of it. he who recieves an idea from me, recieves instruction himself, without lessening mine; as he who lights his taper at mine, recieves light without darkening me."
https://tjrs.monticello.org/letter/293
>but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it.<
That's the key insight there.
I don't think you can get the morals to correspond to the rivalrous distinction. If you're on vacation, my camping on your front lawn (or your bed, as long as I wash the sheets afterwards) isn't rivalrous
Yeah. You're right. I was sloppy there and mistakenly conflated rivalrous/non-rivalrous with the moral underpinning stuff.
Rivalrous/non-rivalrous just has to do with the practical justification for not necessarily having to pay the creator each time someone benefits from their work.
If I'm on vacation, why should I care if you camped on my front lawn?
I think your mistake is in reversing why someone has a moral claim. Its not what is produced that creates the claim, but that its creation took work and that work creates a moral claim on its product. The work Matt does on these articles creates the moral claim to profit. The NYTimes has a moral claim on the investigations and reporting they do and the right to demand payment for them.
When someone covers a song, both the song writer and the performer do work and they both deserve a moral claim for the different work involved, similar to an architect and builder. A builder who takes architectural plans without paying for them is stealing the work someone else did. When someone plagiarizes, they are stealing by taking that moral claim and not recognizing that it rightfully belongs to someone else.
>> The work Matt does on these articles creates the moral claim to profit.
This is where we disagree. Based on its original intent, copyright and patent laws are about a trade between society and creators for the single purpose of incentivizing creators to create to increase overall wellbeing for society. Creators have no underlying moral claim to profit off their works. They have a legal claim to profit that society grants them as part of a trade or an incentive system. That's it.
(Just to be clear - I'm not suggesting Matt shouldn't have a right to get paid for his work. He should. My claim is only that there's no underlying moral basis for society to have to pay him (eg like out of fairness). The reason he should get paid is due to laws created as part of a bargain to encourage creators to produce. This distinction underpins my contention that this bargain should be set up based on what's in the best interest of society overall, not necessarily what's in Matt's best interest.)
Jefferson's thoughts on this are relatively straightforward (from the same letter as the last quote).
"It has been pretended by some, (and in England especially,) that inventors have a natural and exclusive right to their inventions, and not merely for their own lives, but inheritable to their heirs. But while it is a moot question whether the origin of any kind of property is derived from nature at all, it would be singular to admit a natural and even an hereditary right to inventors. It is agreed by those who have seriously considered the subject, that no individual has, of natural right, a separate property in an acre of land, for instance. By an universal law, indeed, whatever, whether fixed or movable, belongs to all men equally and in common, is the property for the moment of him who occupies it, but when he relinquishes the occupation, the property goes with it. Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. "
https://press-pubs.uchicago.edu/founders/documents/v1ch16s25.html
"Creators have no underlying moral claim to profit off their works."
"My claim is only that there's no underlying moral basis for society to have to pay him (eg like out of fairness)."
When does someone have a moral claim to profit off their works?
You made the comment before that the key is rivalrous. There are a limited number of people who can attend a concert, therefore the performance there is rivalrous. Unless I misunderstand you, this means that a Taylor Swift singing in a concert has a moral claim, but the Taylor Swift singing into a microphone to create a album track that will stream does not. That seems like an artificial and arbitrary distinction.
> 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.
This statement really betrays your lack of knowledge about how music is created and recorded.
First and foremost, that hi-hat sound was almost certainly created not by Tracy Chapman or even any of the performers, but instead by the recording engineer, which is a technical, non-creative role. The engineer usually works for the studio and does the same thing for hundreds or thousands of songs.
Secondly, it would be actually physically impossible to recreate the sound, because it depends on a lot of factors specific to the recording itself. Time of day, drum kit, other stuff in the room, etc. It’s not a creative exercise to try and make that sound again, any more than it is to copy a Bob Ross painting.
So as a musician in a recording studio, if you like the “Tracy Chapman hi hat sound”, your options are: ask the recording engineering to try and get it as close as possible, or, sample it. I don’t really see much moral or ethical difference between those options.
"Secondly, it would be actually physically impossible to recreate the sound, because it depends on a lot of factors specific to the recording itself."
I think this is overstating things. My understanding is that "Weird Al" Yankovic recreates the music for his parodies/satires, not just deletes the vocal tracks, but his versions are in most cases functionally indistinguishable from the original. (I remember reading an interview years ago where a member of Bare Naked Ladies specifically praised the high degree of musical accuracy of Yankovic's parody of "One Week" -- "Jerry Springer.")
I don’t doubt that most people don’t notice the difference, but if we’re going to be talking about something as specific as how an instrument sounds on the recording, it really is impossible to match the exact sound. I’m not claiming this really matters to the end product, just sticking to the parameters set in the article.
And on the weird al point, I do I have to say, the difference is quite noticeable, even aside from the obviously different singer and lyrics. Take the guitar sound in "Beat It" vs "Eat It", for example. They don't sound anything alike, and it's in a totally different key so it would be hard to confuse the two tracks. Whatever the Barenaked Ladies guy was referring to in that interview, it wasn't that Weird Al was perfectly matching the recording, because as far as I can tell, he doesn't even really *try* to.
No, you're just not understanding what I read, and then extrapolating a bunch of other stuff from it that happens to be quite wrong. It's always kind of funny, in a pathetic sort of way, when people jump to completely unjustified and incorrect conclusions based on their own misreadings of very limited data like a comment or two on a blog post.
I know perfectly well that Tracy Chapman didn't play all the instruments or do the engineering on her album. I never said she did. I referred to "the sound of the hi-hat" because that was the example that Yglesias used. This idea that I must think that Tracy did it herself is your own uncritical inference.
Your statement that the sound was created by the recording engineer is also wrong. The final sound that we hear is the result of multiple factors: there's the original sound of the hi-hat as played by the drummer (or generated by a drum machine, in which case it still has an earlier source elsewhere, either in some previous recording that was sampled, or some algorithm that generated it), then there's the microphone that recorded the hi-hat (chosen by the recording engineer but not invented by them), then there's the way the recorded sound was processed in the mix, which may have been done by the recording engineer or someone else... and then there's the mastering engineer's contribution... it's not a simple thing. I'm not even giving a complete list here, just some of the more obvious factors.
Duplicating a particular sound in the studio is done all the time. It doesn't have to be so exact that it depends on the time of day or the other stuff you mention. The important point, the part any actual musical artist or studio professional would understand, is that there's a certain quality of the sound that you want, and if you know what you're doing in the studio, you should be able to get that quality even if the result isn't 100% identical to the earlier record you had in mind.
I think if you tell a good recording engineer that he's "purely technical" and "not creative", you'll get a good lecture on how wrong you are.
I am a recording engineer my dude.
You are remarkably unpleasant.
I've got nothing on you in that regard. But if you don't consider yourself creative, that's fine with me. Other engineers I've worked with would not appreciate being described that way.
> It's always kind of funny, in a pathetic sort of way, when people jump to completely unjustified and incorrect conclusions based on their own misreadings of very limited data like a comment or two on a blog post.
Incredibly ironic coming from the guy who couldn't bother to look at who the author of the piece was before spouting off.
EDIT: To make the takeaway explicit, "we were able to produce a new song/idea/... that wouldn't be possible working alone" is an argument for copying, not against (as someone who wants to hear good music)
When I wrote papers using method X to prove new result Y, was that a "workaround for incompetence" and I should have come up with a new proof for X? This seems to misunderstand both the point of copying (standing on the shoulders of giants and all that) and the emotional response - I want people to cite my papers!
That has to be the least sensible analogy I've come across in quite a while. Using proven methods in mathematics is not at all the same thing as copying someone else's artistic work. If you can't even understand that, I don't know what to tell you.
Mathematicians constantly use artistic analogies, down to talking about being inspired by works of others. But the funny thing is I think you're right - I've definitely proved things which I would be too incompetent to do from scratch. But that's a good thing, because the benefit to others (in music or math) is the final product
The thing is, though, you still have to do the work yourself, even if you're relying on past work so that you don't have to start from ground zero in every paper you write, and spend the first thousand pages establishing number theory from scratch. You aren't just copying someone else's work; you're building on principles that previous work established. Sampling would be more like if you took a chunk of someone else's proof and just embedded in your own paper as part of your work. Even that is somewhat misleading, though, since math and music are not the same thing and don't follow the same rules. You can't copyright mathematical formulas.
Sampling is essentially a form of plagiarism for sound recordings, just copying someone else's work instead of creating something new. Now, the counter-argument is that the plagiarized material is being placed in a new context so that the result is a new work, but why should that argument be considered valid for music when it isn't for literature? Try writing a novel by "remixing" "samples" taken from other novels that are still under copyright and see what happens to you. The lawsuit won't be fun.
This is obviously not copyright anymore but if I wrote a novel and I had a character say "It was the best of times, it was the worst of times" I'm _clearly_ sampling A Tale of Two Cities, but that strikes me as the sort of thing that should be allowed.
That seems somewhat akin to sampling to me.
If I copy the entire speech ... that's starting to get long enough that it's beyond the length of a "sample"
Sure, that's where we get into questions about the difference between a "reference" or an "allusion" or a "parody" and mere plagiarism. You can do that in music too, but the usual way you do it is by having an instrument play a phrase that refers to an earlier work.
In the vast majority of cases I'm aware of, though, when someone uses a sample from someone else's music in their own recording, it's not done as an artistic reference that people are expected to understand or that adds meaning to the music. It's just done because somebody liked the sound and thought it would fit. There are exceptions, but they tend to be really obvious, like Kanye using a sample (properly licensed) from King Crimson's "21st Century Schizoid Man" in his track "Power".
It may be possible for reasonable people to disagree, but I wouldn't say that quoting from a book is "sampling" in the same sense as what's done in music these days, because books are not a performance medium in the same way that a music recording is.
"One reason I've never been a fan of sampling is that it's basically a workaround for musical incompetence."
Workarounds for incompetence are good, actually (for society).
It is *technically* possible to sing two simultaneous vocal lines, but instead we usually just hire two people to sing simultaneously, or record and combine two separate tracks. Should we really try to teach everyone to become a Tuvan throat singer for the exact same aural output? Similarly: it is physically possible to build a bass so large and loud enough that you don't need electric speakers for it. But if you don't need a bodybuilder's muscles to play the bass, then you can focus more on creating cool music and less on working out.
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).
Totally agree with this. There is no other form of intellectual property where anybody would even fathom you having those rights past your death ... other than trademarks which are a whole different thing and very different imo
Patent terms are also a fixed number of years regardless of whether the inventors or original claimants are living or dead.
That’s true. I wasn’t careful enough with my phrasing. Music is generally life of the author + 70 years. Patents are 20 years to my understanding. So the minimum length for music is 70 years. Assuming someone lives an average life span, you are looking at protection for close to 150 years which I think is hard to justify. If it were a short fixed term like a patent, the persisting after death does make sense.
I was actually almost done writing this as a response to Ethics Gradient when your response popped up, so I'll put it here instead:
Right of publicity (a.k.a. "name, image, likeness rights") also survives death for some period of time as a matter of law in most, if not all, US states, sometimes longer than copyright. (Indiana allows it for 100 years post-death; Tennessee technically only allows it for 10 years post-death, but it can be indefinitely renewed by the estate/heirs.)
Trade secrets last as long as the criteria for qualifying as such are met and thus theoretically can last forever, not being dependent on the life of the original creator at all.
Moral rights under US law are the only type of intellectual property that specifically terminate on the creator's death. (And I suppose also "reputation," if you classify that as a form of intellectual property, since defamation claims can't be based on post-death statements about the decedent.)
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/
Do compulsary license payments go to the songwriter or the person who owns the recording? Like, is Taylor paying compulsary license fees to the owner of the recordings?
I just love that Combs didn't change the line that goes "Now I work in the market as a checkout girl."
It’s always interesting to see where people do and don’t edit gendered terms in a gender reversed cover!
Here’s a fun listicle of some covers (both by queer and straight artists) that kept the pronouns:
https://www.buzzfeed.com/skarlan/girls-want-to-steal-jessies-girl-too
This reminds me of a weird feature of Arabic pop music: Love songs are usually--if not almost invariably--written in the second person masculine,* even when the singer is a man and even when the lyrics make as much or even more sense as being addressed to a woman. (And no, these aren't same-sex love songs, this is the Middle East we're talking about.) To me, who grew up with this stuff, it's perfectly normal, but it throws off a lot of language learners to recognize that Amr Diab's impassioned "habibis" in "Nour El Ain" are treated as being addressed to a woman only by the universal unspoken agreement to default to the masculine in songwriting. I'm not sure if this convention is to make it easier to market songs (since Arabic singers usually don't write their own songs, having a one-gender convention makes it easy for lyricists to write for both male and female singers) or arises from rhyme/prosody considerations, but it's there.
*Note: Yes, Arabic distinguishes gender in the second person. As do most Semitic languages.
And here's the song for anyone who isn't familiar with it: https://www.youtube.com/watch?v=KLJA-srM_yM
(Now that I'm listening to it, I think it does sound familiar, though I definitely didn't know the song by name or description.)
And here's an article I found about gendering "habibi": https://www.thenationalnews.com/lifestyle/comment/2022/06/06/what-does-habibi-mean-when-and-when-not-to-use-the-term-in-the-uae/#:~:text=Habibi%20(male)%20and%20habibti%20(,t%20drop%20it%20too%20casually.
Yeah, Nour El Ain was super-popular when it came out and even trickled in marginally onto Western radio marginally. If you've ever heard an Arabic pop song, it's probably that one.
That's really interesting!
Is there a different number of syllables in the masculine or feminine second person? Are there traditional rhyme or alliteration schemes that might be changed by shifting the gender?
It can affect the number of syllables depending on the word and the dialect/register. It also can affect the rhyme; for instance, in Egyptian and Levantine Arabic, it changes the quality of the vowel preceding the final -k that marks the second-person possessive (i.e. "your X") and in most varieties of Arabic it changes the final vowel of second-person past-tense verbs.
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.
“Art form based on wholesale appropriation inexplicably finds itself having difficulties with copyright.”
It’s a funny quip, but this applies to a significant portion of rock music in the 70s. I’m a huge Zeppelin guy but a decent portion of the catalogue is just an appropriation of Howlin Wolf and others.
I don’t see any ethical or moral daylight between that and sampling.
There are certainly some songs that Led Zeppelin should have been sued for, and some they were sued for. "Stairway to Heaven" is far from the worst example. "Black Mountain Side" is an obvious and blatant ripoff (much more so than "Stairway") of Bert Jansch's 1967 recording of "Black Water Side", but Jansch never had the money to hire a lawyer and file suit.
I wouldn't say this sort of thing is "a decent portion of their catalogue", though. Many of their songs aren't derived from older songs, and sometimes they did give proper credit (e.g. "When the Levee Breaks" is credited to Zeppelin and Memphis Minnie, which is fair since they set her lyrics and melody to a completely different accompaniment). It is disappointing, though, that they were not consistent about crediting songs properly.
Nor would I say this "applies to a significant portion of rock music in the 70s". Most bands did credit songwriters accurately. There are also a lot of songs built on generic elements (the 12-bar blues form, for example) that aren't copyrightable.
Great point on the 12-bar blues. Thought this Polyphonic video raises interesting authorship questions on how the blues is built on folk tradition and folk tradition is more collective. There's a 1941 interview with Muddy Waters (6 minute mark) where he says he learned his song from Son House which was similar to Robert Johnston's Walkin' Blue but the song was out way before Robert recorded it.
https://www.youtube.com/watch?v=KGmMjAGYyYA
I've been down so many Zeppelin youtube black holes. Love them. My only hot take with the "appropriation" bit is ... ok, but just listen to Page and Bonham. I don't think it's hyperbolic to say Bonham's grooves were unlike anything that had ever been played before.
+1 re the Onion headline issue, as I have a similar reaction. I'm not going to claim sampling is an inferior artform, but, as lawyer, all I can say is that I would tell a client they should get authorization from the necessary rights holders before sampling a work unless they have a really clear fair use defense (which will rarely be true for commercially released music) or otherwise have a solid argument for why copyright shouldn't even apply, and you probably should still get authorization because it will almost always be cheaper than defending a lawsuit.
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.
Lol I was actually lamenting while reading this that copyright law hadn’t spared us from “Paper Planes.” De gustibus non disputandem est.
I think the cultural discussion around “appropriation” and the post-Napster copyright discussion could learn a lot from each other, and complicate the simplistic views that many people take of one or the other.
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.
I don't think the piece argues that the costs should be the same, but that samplers and covering artists should be have the same rights to pay a fee for a non-negotiable license. That's completely compatible with samples costing more
I see the value in a set formula for non-negotiable licenses, but I think disinterested makes a good point with the famous guitar lick example. If we use a set time based formula it will be used to relatively cheaply license short but iconic parts of songs. I don't think it makes the whole idea a "non-starter" but it is worth considering.
To argue with myself, you could use the same argument to do away with compulsory licensing for songs as well, since the perceived value of a cover of "stairway to heaven" is much greater than a cover of some lesser known Led Zeppelin song. I don't really have a good reason to say why this is OK but compulsory licenses for samples is not.
Why does that make it a non-starter? What's so bad about a world where that happens? I don't think it's going to substantially reduce the incentive to create new music and if it means we get to use great bits of music more broadly that's great.
The piece advocates the rate be set based on sample length alone.
That does not in any way conflict with what I said. It could be the case that even a one-second sample could be priced higher than the fee for a cover
I’m not talking about covers in my comment. I’m saying different samples from the same song can be wildly different in terms of their usage and recognizability. If you sampled the hi-hat, as the article says, that is a trivial sample that no one would recognize. If you sampled the guitar, people would hear it as “the guitar from fast car” and arguably you should owe more royalties because it’s a key component of the song.
My point is that a scheme that treats those samples as equivalent is not one recording artists would support.
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.
I largely agree, but the very literal protection from someone copying your work word for word and selling it shouldn't be allowed for some amount of time... Maybe 25-50 years tops.
Agreed. I think ideally intellectual property protections are very strong for some limited amount of time. For a long time it was 28 years with an option to extend another 28, which feels like an ample amount of time.
I agree that it's desierable that some kind of compensation be given for that use to incentivize creation but I don't think that (in an ideal world) that should give the author the ability to, say, refuse to sell their work in a particular area or format even within that time period.
For instance, even if you believe that your work is designed to be read if you refuse to allow an audiobook or if you try and refuse to let your story be included in an anthology I think it's totally appropriate that there be a compulsory licensing scheme where the government says, ok you get this much in royalties per copy of the work but they get to create an audiobook/anthology even if you don't approve.
To be clear, this is what is ideal, I realize in actuality there will be all sorts of concerns and complications which might make this a bad idea. But it shouldn't be ruled out in principle.
I'm all for this idea
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.
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
My guess is that rules in Europe might be different than in America, plus copyright didn't last as long in the nineteenth century.
Loved the read, thanks! The bit about samples containing samples is craaaazy. In a couple decades this scheme could have literal hundreds or thousands of people getting paid out for a huge web of samples of samples of samples. Not intractable but logistically challenging.