[Editor's Note: The is the first in an ongoing collaboration with Amir Said that will spotlight the history and art of sampling and explore copyright issues around sampling. For a more in-depth look at these topics, check out the definitive book on the subject, The Art of Sampling.]
Historic moments don't always arrive in a blaze of glory, trumpets blaring, fireworks exploding across the night sky. Instead, the changes that truly end up affecting the course of music often happen in board rooms, cloaked in bureaucracy, soaked in boredom, drowning in contracts so mind-numbingly complex even the lawyers have to fight off sleep.
So I know many of you didn't notice EMI's recent press release regarding their sampling "amnesty" - because what sane person spends their time reading press releases? - but trust me, it has the potential to be kind of a big deal. A big, big deal. Sa'id brought the amnesty announcement to my attention, and I'm here to pass on the knowledge, because if you make hip-hop, listen to hip-hop or care about hip-hop, you need to care about EMI's proposal. So I'm about to wake you up and break things down for you like a coalminer with a Red Bull addiction.
I know some of you are already experts in this field, but I want everyone to be able to follow - this is for the producer in the million dollar studio and the girl making beats in her mom's basement - so we're gonna take this one step at a time. Experts, forgive me if I do some simplifying in the name of accessibility. Leggoo...
I'm Afraid to Admit It, But I'm Not Quite Sure What Music Publishing Is
No worries, the only shame is in not asking.
As opposed to a label, which is responsible for an artist's music as a performance (ex. an album, a single, etc.), a music publisher is responsible for music as the music itself (the songwriting, made up of melodies, lyrics, etc.). If I want to buy Kanye's album, that's the label. But if I want to use a Kanye song in a commercial, I'd have to go to the publisher. And so while only Kanye might get his name on the front of the album, there might be, I don't know, say 31 different songwriters and producers who collaborated on a Kanye song and would all share the publishing for that song.
As music sales have plummeted, music publishers have become increasingly important and powerful. An artist can now easily make more money from having their song used in just one movie than they can from album sales, and so while it's the Def Jams, Cash Moneys and Interscopes of the world that are household names, it's the Sony/ATVs and Warner/Chappells of the world that can really make or break an artist's career.
Do I Need Any Background Info?
It couldn't hurt.
EMI is a division of Sony/ATV, the largest music publisher in the world, and like every publisher, they've historically treated sampling like I treat my daughter after her bed time; "You don't want to find out what happens if I catch you out of bed again..."
Publishers have lobbied Congress hard to pass new copyright law that, surprise, greatly benefits giant music publishers but not neccesarily artists and demeans sampling in the court of public opinion, and they've so far won a decisive victory. Thanks in large part to the music publisher's efforts, a large part of both the general public and artistic community views sampling as "cutting and pasting" at best, unoriginal theft at worst. Anyone who's actually spent time studying and understands sampling knows that's a gross mischaracterization, but hey, why work to understand something when you can just try to stomp it into oblivion instead?
Ok, Got It, So...What Happened Again?
For the first time ever - and let me emphasize ever - a major music publisher is not only attempting to reach out and work directly with the beatmaking community, but it's talking about that beatmaking community in a way that acknowledges sampling as a fundamentally creative art form.
"Whether it is for a drum break, an electronic segment looped or a freak-out flute solo that has been sampled, anyone coming forward and declaring previously uncleared samples will be given the opportunity to enter into a licence for future use without the fear of a royalty back claim. The idea behind the amnesty is to give artists, producers and record labels the opportunity to legitimise the samples in their back catalogue. It also aims to encourage new creative use of the expansive archives of the multiple" - EMI PRODUCTION MUSIC LAUNCHES SAMPLING AMNESTY
I'm not thrilled about the word "amnesty" because it implies illegal activity when many existing samples may not in fact be illegal at all but this is still a huge leap forward. EMI is not only telling beatmakers that they won't be prosecuted for using samples in their music, but they'll be encouraged and supported by EMI in pushing and creating new music that samples from their catalog.
It's hard to stress how much of a change of direction that is. Think of it like...Colorado. When marijuana was illegal it had to also be demonized, because if you're going to justify spending that much money and time criminalizing something, you have to make sure people think it's bad. But bringing marijuana sales into the mainstream has not only allowed the state to more safely regulate marijuana and directly profit from it, it's removing a lot of the unjust stigma around it's use.
Yeah, you're right, that's not the best analogy for a lot of reasons. Still, it's about marijuana so I know I have your attention and I'm rolling with it (pun intended).
Why Would EMI Do This?
Great question, you're really good at asking questions. I'm really starting to like you.
The music publishers aren't cold-hearted robots, but it's also hard to envision them launching this "amnsety" program because they had an epiphany about how beautiful Bink's sample flip of on "Devil in a New Dress" is.
By bringing so much more sampled music into their fold, EMI can dramatically expand their catalog essentially overnight, and the more music they have out in the world the more likely that music is to be licensed and the more money they'll make. Plus, samples can help re-ignite interest in their existing catalog. For example, "Devil in a New Dress" samples Smokey Robinson's "Will You Still Love Me," and boom, just like that I've got you listening to (and potentially buying) Smokey Robinson's music when you weren't before. They seem to be taking seriously what many in the beatmaking community have been arguing for years, that rather than "theft," sampling can actually be a revenue driver for musicians, labels and publishers.
And as Sa'id pointed out in his article about the amnesty proposal, EMI would also be getting access to a large amount of sampled music that they wouldn't have been able to grab before because those samples were so minimal they don't legally need to be cleared ("de minimis") or were fair use. Umbrella makers don't need rain to sell umbrellas, they just need you to be afraid that it might rain. Publishers don't need a sample for there to actually be copyright infringement, they just need a beatmaker to be so afraid of what might happen if it is infringement that they accept the amnsety and hand over their music to EMI.
Now that's an analogy I'm standing behind.
So Now What?
I can see how the sampling amnesty could be a big win for EMI, they're adding a new revenue stream at no cost to them, but is it a win-win? Will beatmakers who sample, accept the amnesty and cozy up to EMI be any better off? The devil is always in the details, and right now the details are so blurry we don't know if the devil is a devil at all?
Will beatmakers who accept amnesty receive a portion of the publishing, or will they be forced to give up 100% of the publishing to EMI in exchange for the amnesty? Will they receive any payment, or only amnesty and a future license to sample without the threat of a lawsuit from EMI? How will a sample-based artist be credited in their music?
Right now we don't know, but I intend to get some answers. I've reached out to the office of Alex Black, EMI's Production Music Global Director, and they've agreed to make him available for an interview. I'll of course let you know the details of my conversation with Black when it happens, but in the meantime I consider this an exciting prospect for the beatmaking community. Who knows, it may even turn out to be one of those historic turning points that we only recognize in retrospect.
It's too early for sample-based artists to start setting off fireworks, but they might want to light a match.
[By Nathan S, the managing editor of DJBooth and a hip-hop writer. This is his Twitter. Amir Said is the author of The Art of Sampling, the most comprehensive exploration of sampling and copyright law ever written. Image via Instagram.]