story by Sean Foran
image by Simon Griffeth
“Good artists sample, great artists steal” —Pablo Picasso
When’s the last time you read a music review without a single reference to another artist or band? It’s a crutch all writers hobble on in order to provide or provoke comparison to the substance of their subject. It’s also an admission that the tunes streaming through your iPod are overtly derivative. Forget about the oil crisis. The global supply of lyrics, beats and chord progressions are drying up, forcing artists to operate on recycle mode. Musicologists quickly remind us that starting with the blues, reinterpretation of the past significantly shapes our taste for what constitutes popular sound. Aping another group’s style has always been fair game and we’ve come to accept the fact that for every Led Zeppelin spawned from Muddy Waters, we’re forced to endure the bastard sons of Eddie Vedder a la Creed and Nickelback. But who decides, however, when emulation becomes imitation and, more importantly, when does it constitute calling the lawyers in?
“As people listen to the album more and more, it’ll become apparent just how much we’ve plagiarized”, said Chris Martin about Coldplay’s X & Y. “To me, at the end of our album we should have just had a bibliography, or a discography, as references.” Most bands freely admit to appropriating from their influences, making sure they shoplift from credible marks. The amount of criticism received is invariably dependent on how much credibility you have in the first place. When Jet used the pulsing drum intro from Iggy Pop’s “Lust For Life” on their breakout tune, “Are You Gonna Be My Girl”, audio snobs cried foul, though not a peep was heard when The Decemberists took the same percussive to start their song, “This Sporting Life.” You can fill books with citations of this nature ranging from misdemeanors like the Flaming Lips’ “Flight Test” borrowing the melody from Cat Stevens’ “Father and Son” to felonies like The Strokes’ pilfering of the guitar intro from Tom Petty’s “American Girl” for their hit “Last Night.” It’s nearly impossible to sustain a lengthy career without dipping from the well occasionally.
To avoid compensatory damages, musicians can always plead cryptomnesia, the psychological term for accidental plagiarism or subconscious derivation. It’s a shaky alibi at best and rarely works in court, as George Harrison can attest. The Beatle was successfully sued for his 1970 song “My Sweet Lord” by the Chiffons, who proved it plagiarized their 1963 classic, “She’s So Fine”. Harrison accepted the decision with bemusement, stating: “I still don’t understand how the courts aren’t filled with similar cases as 99 percent of the popular music that can be heard is reminiscent of something or other.”
Deciding what constitutes copyright infringement remains muddled. It’s not the assertion that you copied, rather the determination of how much that matters. No band came out on the short end of this subjective stick more than The Verve. In 1997, the Lancashire quintet was sued for using five notes from the Andrew Oldham Orchestra recording of the 1966 Rolling Stones song “The Last Time” on their smash single “Bittersweet Symphony.” The band originally negotiated a licensing fee to use the sample. However, Allen Klein, owner of the rights to the Stones material from the sixties, claimed much more was borrowed than the portion paid for. The matter was settled out of court (primarily because The Verve couldn’t afford the mounting legal fees) with song royalties transferring to Klein and the songwriting credits to Jagger/Richards. In addition to the financial flogging, Klein sold the song to Nike for a commercial until The Verve pulled the plug citing Moral Rights, which requires permission from the artist even if they don’t own the music. Sadly, the band didn’t make a dime off what was arguably one of the biggest hits of the nineties. “Bittersweet Symphony” earned a Grammy nomination for “Best Song” and when he found out the Glimmer Twins would be listed as the nominees, singer Richard Ashcroft bitterly joked: “It was the best song Jagger and Richards have written in 20 years.” Ashcroft then dissolved his band and suffered a nervous breakdown shortly thereafter. (Yet he’s now back in the game as a solo artist and touring this month with, ironically enough, Coldplay…)
Hip-hop has always faced closer scrutiny than its rock counterparts. Artists like Kanye West and Jay-Z pay big Benjamins when negotiating clearance of previously recorded tracks. Undeniably, the rise of sampling in hip-hop has broadened the genre’s reach, where — absent of traditional guitar, drum, and bass — producers can drape their rhymes with beat-laced nostalgia. Surprisingly, all was fair game in sample-land until 1990 when rapper Biz Markee was sued for using a section of Gilbert O’Sullivan’s “Alone Again (Naturally)” on his track “I Need A Haircut.” The landmark case would prove precedent setting. The prosecution came out swinging, beginning the proceedings by stating, “Sampling is a euphemism in the music industry for what anyone else would call pick-pocketing.” In the end, The Biz got fleeced and hip-hop law would never be the same.
Fortunately for the Beastie Boys, their release of Paul’s Boutique, a career-defining album that propelled the rappers from frat boy party MCs to sonic adventurers, came in just under the radar. Released in 1989, a year before the Markee decision, Boutique was initially considered a commercial failure (its paltry 500,000 initial units sold paled in comparison to Licensed to Ill’s nine million). Produced by the Dust Brothers, the album grew virally and is now considered one of the most critically acclaimed records in any genre. Commonly called “The Sgt. Peppers of hip-hop”, Boutique incorporated duty-free samples of Led Zepplin, The Beatles, Curtis Mayfield, The Ramones, Pink Floyd and Joni Mitchell. They put the funk out free of charge, but realize now that replicating this feat today would bankrupt their record company. When asked about the current process of sample clearance by Wired magazine in 2004, Mike D explained that even if you have the “skills to pay the bills”, it’s still a tedious process. “We have to basically break out every single component of every track we do and make a list of the sources”, said the MC. “We go through every blip of sound and decide what’s significant and then we need to contact the owner. From there it’s a whole bunch of lawyer craziness.”
NME writer David Quantic coined the Warholian phrase “pop will eat itself” to argue that the mother of all songs could be created by patch-weaving the best elements of great recordings into one flawless tune. Enter the mash-up, which skillfully morphs two disparate songs (often a rap and rock track) into the musical equivalent of peanut butter and jelly. In 2004, a DJ named Danger Mouse released a bootleg titled The Grey Album, sampling The Beatles’ White Album with vocals from Jay-Z’s The Black Album. The homemade remix torched through cyberspace like a comet. By the time EMI, which owns the rights to The White Album, issued a Cease and Desist, participating websites had already transferred 100,000 copies, propelling The Grey Album to highest-selling release status for one glorious afternoon known as “Grey Tuesday.” MC Danger Mouse (Brian Burton) would legitimize the mash-up technique overnight, challenging DJs to play Frankenstein by taking apart the old and creating brand new monster songs.
Let’s face it. If you’re a music snoot that holds everything up to Kid A or finds Captain Beefheart easy listening, you’ll never appreciate that sometimes giving a song an oil change lets you drive away with a brand new car. Citing the source is half the fun anyway. I’ll judge for myself what sounds good and oust the imposters when necessary. Remake, remix or remind me of my favorite band. Just do it well and make sure you ask permission with your checkbook ready. In this business these days, walking out on a copyright tab will get your assets frozen faster than you can say “Ice Ice Baby”.
CI Special Report #005