J. Cole’s Wrong About Sample Clearance on “Note to Self”
Last week was unofficially J. Cole takeover week. He dropped an album and I "1st Listen" reviewed it and we wrote about his previous great work and I discussed it on the podcast and, perhaphs most impressively, Lucas named all 93 people J. Cole mentioned on this "Note to Self (Outro)". We've been spending a lot of time camped out on "2014 Forest Hills Drive" lately, but if you'll indulge me one last Jermaine-related article, there was something else on "Note to Self" that's been on my mind as I've been listening to the album on repeat. Something so seemingly small even Lucas didn't touch on it earlier.
Namely, J. Cole's belief that samples shouldn't have to be cleared.
"And all the mothafuckin' samples that cleared, thank you, y'all be tryin' to give a nigga a hard time on the samples, man! I'ma go to the fuckin' Supreme Court and try to make this shit easier for niggas like me to clear these samples, man. If you made the fuckin' music, and you made the art, and you put it into the world, I should be able to use it however the fuck I want. I'ma pay you, I'ma give you a percentage, but you shouldn't be able to tell me I can't use it. Ya, that's fuckin'... that's fucked up nigga. You was inspired by the world, allow the world to be inspired by your shit, and to use your shit. So all them people like [*censored*] or whoever that don't let niggas use they shit, fuck that man. It's 2014, 2015 by the time you might hear this shit. Fuck that man we movin' on."
Now, I'm not going to seriously hold Cole to that statement. He said it during a celebratory, stream of consciousness, semi-rant, not during a carefully thought out thesis. It could be a position he truly stands behind, or it could just be something he said in the heat of the moment. Either way, this isn't really about him personally, it's about the larger question he's raised; should artists be legally obligated to clear samples of their work? (Spoiler alert: No they shouldn't.)
First things first, while I know this will be elementary for many, let's start from the beginning so we're all on the same page. Here's how the current system works: If an artist samples another artist's work, they "should" reach a legal agreement to use that sample (aka "clear the sample"). I put "should" in quotation marks because they can always just not clear the sample and risk getting sued, although that later lawsuit will likely be far more expensive than clearing the sample upfront - just ask Pharoahe Monch. This holds true for free music as well. Many artists are under the impression they can't be sued for a sample if they released the music for free. That's not true; they can be sued, the vast majority of the time it simply isn't worth the time/money for the sample rights holder to sue. The lawsuit surrounding Kendrick Lamar's "Rigamortis" is a good example of that principle.
But on a high profile album like Forest Hills Drive that will likely generate millions of dollars, it'd be stupid to not clear samples. Easier said than done though. Even if you can figure out who owns the rights to that sample - it could be some mega publishing company, it could be the artist's mother's cousin who lives in Japan - and even if you can agree on a fair payment, the rights holder still has the right to refuse to let you use that sample, which can result in all sorts of personal and political maneuvering. Hence Jay Z's bullshit story so he could clear "Hard Knock Life," and RZA working a personal connection to get George Harrison to clear "My Heart Gentle Weeps."
So you're J. Cole. You just made the best song of your career, the song that will help make your new album a classic. But the sample isn't clearing, and the negotiations are threatening to delay the entire album release. Do you just ditch the song? Do you remake the beat for the album? BUT THIS IS THE BEST SONG I'VE EVER DONE!!! And there's a decent chance the rights holder isn't clearing the sample because they've got some prejudice against hip-hop. I completely understand why someone like Cole would be so frustrated, and might think that obligating everyone to automatically clear samples is the solution. It's a nice idea, until you really think about it.
First, Cole goes out of his way to point out that he'd pay to clear the sample, but if everyone was obligated to clear samples of their work, how would that system actually work? There could be some giant database and a flat rate percentage rate that PRO organizations collected on, but that avoids the issue of sample prominence. Shouldn't Cam'ron pay more to clear that "oh boy," which is the core of that song's success, than Kanye has to pay to use a half-second "hey" once in the background of a beat? That type of grey area is exactly why sample negotiations can get so messy and complicated, because they reflect how complicated and messy music is, but it's a necessary complication. And if the sample rights holder can still negotiate their price to clear a sample, what's to stop them for asking for an exorbitant amount of money, in effect not clearing a sample even though they're technically obligated to?
I don't really see any way to create a system where artists are obligated to clear their samples that doesn't also simply make all sample use free (and effectively kill the idea of clearing a sample at all), but ok, fine, maybe that's not such a bad thing. There's a real argument to be made for why all samples should be free and universally open to use. In fact, that's really the argument Cole seems to be making - "you was inspired by the world, allow the world to be inspired by your shit" - and the argument U.S. copyright law is founded on.
Back in the days when physically printing books was the only real way to spread knowledge on a mass level, the founding fathers of copyright law didn't want a few intellectual elites holding onto ideas that could improve the common good, but they also recognized that money could be a powerful incentive for more idea creation. So they came up with a comprise. The work would be the creator's sole property for a limited amount of time, during which they could control and capitalize on it as they saw fit, and then the work would enter the public domain, where anyone would be free to use it for any purpose. In the time since that law was first written though the span of time between a work's creation and when it enters the public domain has ballooned, mostly at the behest of large publishing companies, to the lifespan of the author plus 70 years.
That means that if I wanted to sample J. Cole's voice on "Note to Self" without paying or clearing the sample, and assuming Cole lived to be 80-years-old, I'd have to wait until the year 2135. And that's assuming they didn't increase the public domain span again during that time. So yeah, public domain effectively doesn't exist anymore, which is yet another example of why current copyright law is in many ways broken and hopelessly outdated.
So maybe Cole is right, maybe a universal system is the solution. Let's all understand what that means though. First, it means that no one's getting paid for samples. As in no one. Getting paid. Any money. Millionaire Lil Wayne samples a 70-year-old jazz guitarist who's currently living in a homeless shelter; too bad elderly jazz guitarist, if you wanted to make more money from music maybe you should have been Lil Wayne instead of the guy Lil Wayne sampled. And again, maybe that's ok. Maybe in the grand scheme of things the greater public good that would come from the completely free flow of information and art would outweigh personal gain. Copernicus didn't make any money for changing the world with his theories, he did it for the love. But that's the trade off we're making.
And just in case you weren't already completely exhausted, I have one more point. Forget about all the finance and logistics and convoluted copyright law and my absurdly detailed hypothetical scenarios. Let's hit reset for a moment and go back to J. Cole's original premise. Let's say we could figure out some way to pay everyone fairly for using their samples, there's still one more argument against obligating artist to clear samples, and that argument is moral.
It's the year 2016. Mitt Romney is (hypothetically) running for president again, and he's running on a platform that encourages racial profiling and the militarization of police. What's more, he's chosen J. Cole's "Be Free" as his campaign song, except he only plays the "all we want to do is be free" part while American flags wave and eagles soar and Romney talks about why Americans should be free from the threat of "thugs" roaming the streets and robbing them. It's a complete bastardization, a complete corruption of Cole's message, and there'd be nothing he could do about it.
That scenario may sound crazy, but it REALLY HAPPENS ALL THE TIME, and there are plenty more real world examples. Tyga originally had a Marin Luther King Jr. sample on his Careless World album before MLK's estate decided that including the "I Have a Dream Speech" on the same album that had "Rack City" wasn't the best representation of King's legacy. Before he died, the Beastie Boys' MCA, who became an avowed Buddhist later in life, wrote that he didn't want his music being used for any advertising purposes, and the Beastie Boys have honored his wishes. Do you really believe artists shouldn't have the right to control where their music appears? Think about it. Do you really?
Again, you could argue (and Cole might argue) that while these examples are troubling, they'd be outweighed by the benefits of open sampling, and would be an improvement on the current system. I don't agree with that idea, but I don't entirely disagree either, which is exactly why I'm writing this, so all the incredibly smart people out there in DJBooth Nation can have this discussion and maybe together we can start to fix this clusterfuck of modern copyright law.
And if this all seems like a ridiculously in-depth examination of something J. Cole said as an aside in an album outro, you're not wrong. I'm shocked you're still reading. It takes a hardcore music lover to care this much about how music gets made behind the scenes, but whether you want to think about it or not, sample and copyright law affect the music you hear every day, especially in hip-hop. The albums you spend hours arguing are classics or trash or the best album of 2014 instead of the third best album of 2014 are fundamentally affected by these issues.
It's obviously on J. Cole's mind. So if J. Cole's in your headphones, maybe it should be on your mind too.
[Nathan S. is the managing editor of The DJBooth and a hip-hop writer. He also occasionally talks in podcast form and appears on RevoltTV. His beard is awesome. This is his Twitter.]