‘Reality Hunger,’ Incidental Sampling Hero, Strikes Blow Against Unfair Copyright Policy
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.
very interesting !
one difference is that with a book though, if you’re reading it, you are able to check out the citations in the appendix but if you hear a piece of music on the radio or in a club this information will not be known to the listener and props as such not accorded to respective sample sources.
also, if the music industry carries on as it is, everyone will soon be making music for free
so copyright will not be an issue !
I the t,
You have a point. But, even “cleared” samples are sited in the credits of a commercially released work; so a listener who has the work can check the credit—just like a reader who has the book can check the appendix. Thing is, you’re point (which considers music on the radio or club) is parallel to a book reading: A crowd at a book reading can not check out the citations in the appendix, unless they have the book. Likewise, people listening to music on the radio or in a club can not check the credits of a piece of music, unless they have that piece of music.
As far as the music industry… ha, what music industry? The music industry, as it once was, is no more! I’m not certain how things will play out in the future, but more and more power will flow out the major label’s hands; and I have a hunch that music will again emerge as a profitable commodity.
—Sa’id
i suppose another significant difference could be argued regarding the ‘ratio of
original : sampled material’ within a given work.
i’d guess that in a book the proportion of ‘sampled’ or appropriated material would not typically begin to approach the ratio we find in a lot of hip-hop…
what say ye to that?
I the t,
Im sure there many other differences that we could raise… But your point here actually underscores what Im saying. When you mention the ratio of use, you are, in other words, talking about the substantiality of appropriation. As you know, not all forms of sampling are the same. There are some forms of sampling in which the appropriation is very substantial. But you know very well that there are many beats made, wherein the appropriation is very insubstantial. In cases such as those, there should be a means for sampling and simply citing the appropriated work…that is, if its even recognizable.
—Said
This books sounds interesting, and i hope it does make some progess with modernizing copyright law. But it also could just be let go, and nothing will change, no one but those who already agree with it will care, just preaching to the choir.
I thought that Girl Talk would have caused something to happen, either a clamp down that could be rebeled against (the grey album did this a little; i feel like it brought the issue back to the limelight) or a loosening of restrictions like we are hoping for. But he was let slide (just as most small time releases seem to be?) and the power didn’t budge. Like it wasn’t worth the fight or something.
I think the idea of successful rappers using uncleared samples is an interesting idea of activism. It seems unlikely that their record companies would let them get away with it, and im sure alone they would be scared, but i wonder if a coordinated release of songs could do anything.
well, at least we have the grey zone of mixtapes…?
“But you know very well that there are many beats made, wherein the appropriation is very insubstantial.”
i’m not sure about that…
if a collection of small (insubstantial) snippets are used repeatdedly throughout a song (like for instance, drum hits, horn stabs or short vocal samples) – when you multiply the amount of occurences these samples take up of the length of the song, it can still make up for a substantial proportion of the song, moreso than you would typically get ratio wise with a book.
I the t,
Wow! I can honestly say that I’m shocked by
your last comment… Here, I don’t know if
you’re facetiously trying to play some sort of devils advocate, if you’re just trying to poke wholes in what I’m clearly saying, or if you really mean what you’re claiming. In any event, I should point out that the substantiality of an appropriation is most commonly based on a qualitative standard, not a quantitative one. In fact, your example of a
drum hit as being substantial, based on its repeated use throughout a song, is a highly unreasonable and rather impractical argument to attempt to make. (I really thought you, of all people, would recognize that.)… By your reasoning, if a writer were to borrow just the name of
a character, from lets say, a Dickens novel, then use that name repeatedly throughout their own novel, would that mean that their appropriation was substantial? Of course not; to consider it so would simply be unreasonable. Thus, I’m at a lost as to why you would deem the multiple
occurrences of something as small (in sheer net length and duration) as a drum hit as being substantial. Come on, even the most ardent intellectual property lawyer
(even one who despises sampling) would find fault with such a thesis. Indeed, one of the factors that has always been used to determine substantiality is de minimis use.
Again, we could find many differences between the sort of appropriation that takes place among book authors and the kind of appropriation that goes on among sample-based beatmakers, but that’s NOT the point of this article! This article only illuminates my interested in the surface disparity that exist between both forms of appropriation, as they are treated under American copyright law and policy. Moreover, I’m interested in how the exposure of this disparity is likely to add to the inevitable change in existing copyright law, as it pertains to sampling. In chapter 8 of The BeatTips Manual, I actually offer a proposal for how the issue of substantially should be treated in the area of sampling.
—Said
“Again, we could find many differences between the sort of appropriation that takes place among book authors and the kind of appropriation that goes on among sample-based beatmakers, but that’s NOT the point of this article!”
Eh ? the article is about the difference between how authors and beatmakers are treated in repect to use of appropriated material, so what i’m saying is surely entirely relevant ??
you’re right though, I am kind of playing devils advocate though, inasmuch as I’m trying to think what those who will try to counter and uphold the existing sampling laws might say to the ideas this book has illuminated.
and on that basis, your point about an author using a borrowed name (which i suppose kind of depends on whether Dickens himself had actually invented or appropriated the name himself in the first place) again is highly unlikely to begin to account for a substantial enough amount of occurences within say a 100,000 word book to compare to the level of pilfering, sorry appropriation, that goes off in a typical beat.
when you say –
“the substantiality of an appropriation is most commonly based on a qualitative standard, not a quantitative one.” –
i’m not entirely sure what that means. how do they determine qualitative standard ?
I the t,
You wrote: “the article is about the difference between how authors and beatmakers are treated in repect to use of appropriated material, so what i’m saying is surely entirely relevant ??”
Absolutely Wrong! If you would, please redirect your attention to the header of the article: “‘Reality Hunger,’ Incidental Sampling Hero, Strikes Blow Against Unfair Copyright Policy.” My focus in this article is certainly not about the different ways in which material is appropriated by book authors and sample-based beatmakers. Though I indeed highlight that there is a disparity in how appropriation of literary authors and samplers is looked at under the existing copyright law (for brief background and context), I first and foremost, wrote this article ONLY to point out how David Shields’ book, ‘Reality Hunger,’ “strikes a blow against unfair copyright policy.” I don’t mind a discussion about the different types of appropriations between literary authors and musicians, it’s just that I did not write this article towards that fundamental purpose. I would hope that you recognize and respect that.
As for your role as the devil’s advocate, I hear you what you’re saying; sure, there will be counter arguments by those who would like to uphold the copyright status quo. However, such arguments, I would expect, will be grounded more in precedence rather than impractical substantiality tests. By the way, what I meant by qualitative, not “quantitative,” substantiality determination is that qualitative, in as much as quantity goes, refers to how much of a source was actually appropriated, not how many times (how many instances) the same minute appropriation was used.
And when say that you’d “suppose” that it “kind of depends on whether Dickens himself had actually invented or appropriated the name himself in the first place,” it actually shows how ridiculous this whole dance about the differences of the appropriation practices of literary authors and sample-based beatmakers can be. The Dickens example I used was straightforward and very basic: a character name. Yet, you fed into that an impractical supposition that contradicts your thesis of a drum hit—a very minimal thing—being a substantial appropriation, based on the frequency of its occurrence. Therefore, am I to assume that you actually have a negative view of sampling? Because indeed, you introduced your theory that a drum hit—a very minimal, often indeterminable thing—is a “substantial appropriation” if it’s used frequently. However, if a character’s name is plucked from a Dickens novel, and then used frequently, oh, well, lo and behold: we have to consider “other” factors? That makes no practical sense, and no opponent—and here, by opponent I’m speaking of a lawyer well-versed in copyright infringement cases and the pivotal caseload history involving sampling and infringement—would make such an impractical argument.
Finally, considering you injected the word “pilfering” as a substitute for “appropriation” when it involves sampling, am I to infer that your stance on the art of sampling is one that is hostile at worst, or at best, in league with those who consider sampling to be “piracy,” “stealing,” and/or “non-creative,” etc.?
—Sa’id
not at all,
i have hundreds of beats that use samples, i was joking when i said pilfering, but at the same time I’m not in the business of trying to make things easier for producers. far as i’m concerned there’s already too many beatmakers out there as it is and giving them the remit to use as much of other peoples music as they like is not something I consider a priority.
what i said about dickens maybe appropriating the hypothetical name himself indicates that I am not taking any particular side in this but rather mulling over the concepts and paradoxes in throws into light. i have no vested interest or particular opinion here but rather just different insights.
i don’t quite understand though how ‘qualitative’ can refer to the length of a sample
when the measurement of time is inherently quantative but perhaps that’s just a legal appropriation of the word.
and the article you wrote clearly points out how authors are treated differently to beatmakers (see first paragraph) when it comes to appropriation so me comparing the difference between the way they appropriate couldn’t be more relevant as it exactly these differences that need to be compared when considering why the 2 might be treated differently.
I the t,
Glad to know you were joking when you used the word “pilfering”…
Make no mistake: I completely see where you are coming from. Furthermore, I to am in no hurry to have people be allowed to help themselves to *whatever* they want from a recording without some regulation. And that’s fundamentally what I’m calling for: Some reasonable regulatory parameters for sampling.
I think there are ways to have both sides of the debate come together and reconcile their (our) differences, in a way that is mutually beneficial to us all.
As for “qualitative” and “quantitative,” I was merely referencing quality, as in both duration and use. I referenced “quantitative” only as it refers to the number of occurrences. With regard to these definitions, we’re both right…
Finally, as I stated in my last comment, of course, I did raise the fundamental fact that literary authors and samplers who appropriate are treated differently under existing copyright laws. But note: I did not attempt to try and ferret out the various reasons that have caused this disparity. Again, my aim of the article was merely to show how David Shields’ book, ‘Reality Hunger,’ strikes at existing copyright law, and how it, in no small way, actually helps out the argument for fair regulation of sampling.
—Sa’id
I really wish I would of thought of that! I Wow- I absolutely love what you did with this
tart. I bet it was heaven! It is gorgeous and I can only imagine how delicious it was!