New Book by David Shields Further Exposes Discriminatory Copyright Policy, as it Pertains to Sampling
|By Amir Said (Sa’id)|
When it comes to sampling, American copyright law and policy treats literary works different than it does sound recordings. Book authors have long been permitted (presumably under the protection of the fair use provision of the United States Copyright code) to appropriate (“sample”) and incorporate passages from other literary works into their own (for profit) works, with little to no requirement, other than an open citation of the author and work that was sampled.
However, unlike the path for book authors, the road for would-be samplers of sound recordings (recorded music works) has been mostly contentious. In the obscure realm of sound recordings, under existing American copyright law, even the most minute, inaudible sampling of a sound recording is illegal, without the permission of both of the copyright owner(s) of the master sound recording and the publishing of the written music. According to the “fair use” provision of American copyright law, some levels of sampling are presumably permissible in a “limited” context. But even here, there’s no refuge, as the law outlines a series of factors that must be considered before a work qualifies as fair use. As per the instructions outlined in the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A (United States Code), these factors include:
(1) the purpose and character of the use, including whether such use is of a commercial (for profit) nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work (whatever that really means);
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole (in beatmaking, the appropriation is usually very insubstantial);
(4) the effect of the use upon the potential market for or value of the copyrighted work. (Often the sampling of a long-forgotten artist reboots their popularity and the popularity of the appropriated recording, and this almost always results in a new stream of revenue for the sampled artist and the copyright holders of the appropriated work. Therefore, the effect that sampling has on an appropriated work is that improves the market value for or value of the copyrighted work!)
Also, because of recent court decisions regarding the legality of sampling sound recordings, all forms of sampling (limited or otherwise) done for commercial use (excluding parody) are, in effect, illegal, without the permission of the copyright owner(s) of both the master sound recording and the publishing of the written music.
But in the realm of literary works, no such permission is needed by authors to “sample” the works of other authors; again, all that is required is a citation of the author and literary work appropriated. This point of disparity has rarely—if ever—been drafted into the greatly contentious sampling and copyright debate…that is, until now.
Cue in David Shields’ provocative book, Reality Hunger: A Manifesto. On the surface, Reality Hunger certainly isn’t about the art of sampling within a beatmaking context; however, it is, in large part, explicitly about the practice of sampling in any art form, particularly in the literary environment of fiction and non-fiction. But that isn’t the big draw for me and other supporters of the art of sampling and subsequent sampling rights. No, what stands out to me, and I’m certain even the most rigid literary type, is Reality Hunger’s peculiar twist: The book is made up entirely of appropriated passages from other authors!
Indeed, Reality Hunger is comprised of more than 600 numbered (and indexed) paragraphs, each containing appropriations (samples) from other authors. What’s more? Each appropriation (sample) does not necessarily appear in quotes; and some appropriations (samples) are edited by Shields’, while many are left as is. Needless to say, for sample-based beatmakers, Shields’ “manifesto”—what one literary critic has hailed as “a rousing call to arms for all artists to reject the laws governing appropriation”—is nothing short of a kill-shot at the existing copyright policy that is purportedly governing the art and practice of sampling sound recordings.
I can’t say for certain if Shields’ had hip hop/rap music and its tradition of sampling in mind, as he was writing such a provocative piece of literature. After all, the book is also explicitly about the future of fiction and non-fiction, specifically as it’s situated somewhere between the puffed-up and outdated assumptions about fiction and non-fiction, the new ways in which art is now being created, and the effects that these new forms of creativity are having and will continue to have on literary works. But given the depth and aggressive charge of Reality Hunger, I can’t help but believe that Shields consciously borrowed the bravado of a sampler, when he set about the task of lifting and surgically incorporating lines and passages from other authors into his own original work.
Here, I should note that Reality Hunger includes an extensive appendix, wherein the appropriated authors and their works are summarily cited. This indicates to me that the publishers did not before hand “clear the usages,” or better stated, seek the permission of the publishers and/or authors who own the copyrights to the appropriated works. Moreover, it further indicates to me that the publishers saw no legal reason (rightfully so) to have to seek such permission. And thus, it would appear that aside from giving perhaps more context, the appendix serves one primary purpose: To protect the book from any copyright infringement challenges. Absolutely genius.
For years I have quietly championed what I like to call the “sample and cite” approach. With regards to sample-based beats in the marketplace, I’ve have long maintained that heavy weight hip hop/rap artists like Jay-Z or 50 Cent—artists with critical acclaim and, more importantly, extensive resources—should reject the shake-down practice of sample clearance, and use sample-based beats without attempts at so-called “clearance.” Depending on the limited substantiality of the use, such mega artists could have forcefully advocated for a copyright policy that treated the sampling of sound recordings much more fairly. However, because they did not know that they could take such an activist stand—or perhaps because they well-understood the fact that by paying top-dollar for sample clearance, they could, in effect, preserve a monopoly over quality sample-based beats—such mega artists opted to simply pay the freight, and “clear” samples under the obscure and draconian sample clearance parameters.
But despite the reluctance of some power rappers to take the activist route, we have now arrived at a moment in which changes to American copyright law and policy, as it pertains to sampling, are inevitable! The forces to affect change in American copyright law and policy, as it pertains to sampling, have been steadily mobilizing for years, strategically making cracks in the wall of arguments offered up by opponents of sampling and those die-hard resisters to the sort of changes in American copyright law and policy that would eliminate the unnecessary disparity between the way in which sampling is treated in the realms of literary works and sound recordings. And now, there can be added one more powerful weapon in the advancement of sampling rights: Reality Hunger.
Indeed, the the least, Reality Hunger will no doubt ratchet up the sampling and copyright debate; and in a best case scenario, David Shields’ work will strike a death-blow across the brow of an unfair (and unjust) copyright law and policy. In either case, all of this decisive action is arriving just in time for a new generation of beatmakers who are just beginning to explore the art of sampling.Articles, Editor's Choice, Editorials, News, The Art of Sampling, The BeatTips Community (TBC)