Sampling’s Origins and Legality
A Hip Hop On My Mind Three Part Series
Sampling has been a part of hip-hop since it’s very inception. It was the main lifeblood of a musical genre that grew out of the funk and disco scene in the seventies and early eighties. As of late, articles written by bloggers Gooch from XXL, and Ivan from Hip-Hop is Read have brought an old topic back into the hip-hop community’s forefront. The issue of sampling and its legality has and will always be a dividing force between the new and old school. However that will be discussed in Part 2. First, for people unfamiliar with sampling, I present a brief, and I mean BRIEF history.
The earliest Party DJ’s would find the musical break portion of certain records and blend or cut them into one long musical vamp. Often times you could take seemingly corny records and turn them into party smashes. For example, the Run-DMC song, Mary Mary comes from the Monkees.
Many songs like this received new fame as the pioneers of hip-hop scrambled to find the best records with the best breaks and grooves. The new culture of hip-hop started as a South Bronx underground scene and grew to a nationwide, and eventually a worldwide phenomenon.
This form of sampling dominated the early era of hip hop until DJ Marley Marl accidentally discovered that you could chop up drums from one drum break, and play them as his own drum kit over another musical groove. In the movie, The Beat Kings, Marley Marl describes his initial epiphany:
“I made a mistake at unique recording studios…sampled a snare by mistake when I was trying to get a vocal sample of the record. I started to play the snare on the beat, and I told the engineer to turn that old weak ass snare down, and now I’m poppin’ a James Brown snare on top of the beat I just made! I’m like you know what this means? I can take any kick, any snare, any hi-hat on any record and make my own kits?!?!”
This brought about sampling how it is today. The procedure is basically the same, with the equipment evolving, though many producers stick with old stand-bys like the Emu SP-1200, Akai MPC series, and Ensoniq ASRs.
Now when hip-hop began to reach mainstream status, the issues of copyright came to light. Before, producers had been making beats from any record, not clearing the samples. Clearing samples refers to the process of obtaining permission from the original copyrights owner to use the sample, and also distributing royalties from and profits made. However there hadn’t been any cases against the producers or rappers for this infringement of copyright, so the trend continued. This would all change with or old friend BIZ MARKIE.
In 1991 the first case was brought against a hip hop song from its original copyright holder. The song “Alone Again” by Biz Markie used a piano loop and three words from the Gilbert O’Sullivan song “Alone Again (Naturally).” O’Sullivan’s publishing company, Grand Upright, brought about a lawsuit against Warner Brothers Records, to whom Biz was signed. Warner Brothers actually had contested the fact that O’Sullivan hadn’t actually transferred copyright to Grand Upright, which really hurt their case, when they should have contested the rights of musicians to sample one another. Anyway, the judge had proclaimed that sampling was thievery and now for a song to be officially used in a profitable sense, permission must be obtained from the copyright holder, and subsequent royalties must be paid.
Even though the result of the case deemed uncleared sampling illegal, there are ways around this,. Many producers have replayed samples themselves, essentially turning their creation into a “reinterpolation” or better known as a cover song. Like other musical acts that play cover songs, a less significant portion of profits is paid out.
To this day there are “sample police” that search through songs for uncleared samples in order to collect royalties. Usually working for the Recording Industry Association of America (RIAA,) these agents also go after “piracy” cases, most notably the raid on DJ Drama and the Aphilliates in January of ’07. Again the legal heads said that these mixtapes were illegal, copyright violating material, and so they were arrested on Racketeering charges.
Most influential musicians have a problem with samples and clearing them at some point in their career. While some have the funds to just pay for the rights, other artists have to find unique ways around them. This is the basis for the recent debate on identifying samples, and I will get into that in Part Two.
