If Entire Books Can Be Sampled, Why Not Songs?

Culture

from the stand-up-for-free-expression dept

Recently, there’s been some talk about David Shield’s new book, Reality Hunger, which is getting some press attention for the fact that most of the book is “plagiarized.” Or, rather, the book is derivative. It’s a literary collage, of sorts, with only an appendix at the end that links the works back to the original authors — and that appendix was put in against Shield’s original wishes, but on the command of his publishers’ lawyers. Of course, as many have noted, even the idea is derivative. Three years ago we wrote about Jonathan Lethem’s wonderful Harper’s article, The Ecstasy of Influence, which, again, was a collage of other people’s works.

And, of course, this follows on the recent “controversy” over a German teen who had done something similar, but did as Shields originally wished, in that she chose not to directly credit the sources in the book.

While some are confused by all of this into thinking that the entire concept of “authorship” is at risk — many are realizing that’s utter hogwash, and this actually shows how unique forms of new content creation are thriving.

However, there is a separate issue that’s worth pointing out. While there is some controversy over these sorts of books, we’re not hearing about lawsuits — and we’re definitely not hearing about demands for licensing fees. Yet, in the music world, thanks to a series of highly questionable legal rulings, it’s impossible to do the same thing. If you make a collage in music, you have to clear every sample or risk getting sued. In some cases, such as Girl Talk, the lawsuits haven’t come, but plenty of sampling lawsuits are still filed, and many in the music business want to clear every sample.

But this vast split between the process of creating a remixed/collage book and a remixed/collage music is reasonably upsetting many. Copycense points us to a manifesto, refering back to the discussion on Reality Hunger, suggesting that musicians should stand up for their rights to make derivative, transformative works without having to pay for every sample — just as what’s happening in the literary world:

Rather than take offense however, I’d like to turn the tables.  Indeed what Shields has done is art, and should be treated as original despite being a derivative work.  Where this is accepted, and every day it remains on the market supports its acceptance, then all other original derivative works must be held to the same standard.  The archaic practice of extorting sample based artists for their profits on the legal basis of treating their art only on intellectual property terms, must be out eliminated.  If an author is legally protected in their use of derivative works by simply citing the reference to their usage, there can be no double standard when it comes to musicians.

And so I put forth to sample based producers, and the labels who support them, it’s time to take this issue to task.  End your relationships with the sampling clearing houses.  Create your art without the fear of legal repercussions.  Release it for profit, with your sample sources clearly stated.  At first there will be legal cases brought up, but DO NOT BACK DOWN.  You are on the side of the right, and it is only by pushing forward that the laws will change to reflect that.  I believe there are lawyers and activists who need to, as well as those who already do, stand with us to take this as far as it needs to go, but it begins with us the artists not being afraid to stand up for what is right.

Of course, some might argue that it’s not necessarily that this is legal in the literary space, just that it’s rare for a lawsuit to be filed over such appropriation. Tragically, that’s not the case in the music business. But, on the whole, I do agree that it’s high time that the courts fix what they got so very, very, very wrong on the legality of de minimis copying of music — and one way to make that happen is to get musicians who sample to stand up for their rights to sample without having to pay a toll.

Filed Under: books, copyright, fair use, literature, music, plagiarism, samples