Creative License: The Law and Culture of Digital Sampling

by Kembrew McLeod, Peter DiCola, Jenny Toomey (Contributor)

How did the Depression-era folk-song collector Alan Lomax end up with a songwriting credit on Jay-Z’s song “Takeover”? Why doesn’t Clyde Stubblefield, the primary drummer on James Brown recordings from the late 1960s such as “Funky Drummer” and “Cold Sweat,” get paid for other musicians’ frequent use of the beats he performed on those songs? The music industry’s approach to digital sampling—the act of incorporating snippets of existing recordings into new ones—holds the answers. Exploring the complexities and contradictions in how samples are licensed, Kembrew McLeod and Peter DiCola interviewed more than 100 musicians, managers, lawyers, industry professionals, journalists, and scholars. Based on those interviews, Creative License puts digital sampling into historical, cultural, and legal context. It describes hip-hop during its sample-heavy golden age in the 1980s and early 1990s, the lawsuits that shaped U.S. copyright law on sampling, and the labyrinthine licensing process that musicians must now navigate. The authors argue that the current system for licensing samples is inefficient and limits creativity. For instance, by estimating the present-day licensing fees for the Beastie Boys’ Paul’s Boutique (1989) and Public Enemy’s Fear of a Black Planet (1990), two albums from hip-hop’s golden age, the authors show that neither album could be released commercially today. Observing that the same dynamics that create problems for remixers now reverberate throughout all culture industries, the authors conclude by examining ideas for reform. Interviewees include David Byrne, Cee Lo Green, George Clinton, De La Soul, DJ Premier, DJ Qbert, Eclectic Method, El-P, Girl Talk, Matmos, Mix Master Mike, Negativland, Public Enemy, RZA, Clyde Stubblefield, T.S. Monk.

Genres: Music, Law, Nonfiction, Technology

336 pages, Paperback

First published January 1, 2011

About the author

Kembrew McLeod is Associate Professor of Communication Studies at the University of Iowa. He is the author of Freedom of Expression: Resistance and Repression in the Age of Intellectual Property and Owning Culture: Authorship, Ownership, and Intellectual Property Law, and co-creator of the documentary film Copyright Criminals.

Reviews

[Scott · Rating 4 out of 5]

McLeod and DiCola's book Creative License is an extensive history and assessment of the copyright regulations that govern the practice of digital sampling in music.

The authors' motives for the book are transparent from the beginning (for example, they begin by discussing the "golden age of sampling," a time that included the Beastie Boys' "Paul's Boutique" and Public Enemy's "Fear of a Black Planet" and criticize rulings against Biz Markie and De La Soul and other artists that happened a few years later as the law clamped down on their creative output). The authors believe that sampling should be allowed as freedom of expression and therefore protected from the restrictions of copyright. They support this belief quantifiably by showing how some of the albums of the golden age of sampling would be economically unfeasible to release today. The authors ultimately propose some ideas for the reform of copyright law.

Their language is straightforward throughout, though it moves more into the legal vernacular near the end (this is expected, of course, because the law is such an integral part of the intellectual property debate). The language and tone are also less provocative than McLeod's earlier book "Freedom of Expression."

I thought the book was great and extremely informative about the nebulous place of digital sampling in copyright law. Their arguments are reasonable and interesting.

[Pacific Rim · Rating 4 out of 5]

A magnificent oral history and cultural analysis of United States copyright law relating to musical works and sound recordings. Makes a strong original contribution to the literature - with its extensive interviews, with a range of cultural practitioners, lawyers, and music industry representatives. Highly recommended.

[RPG · Rating 5 out of 5]

I found this book to be very interesting. I am switching to copyright law and it was helpful in breaking some things down.

[Christopher Dalla Riva · Rating 4 out of 5]

Though written for an academic audience and dry at times, this is one of the most complete history of sampling I’ve ever found. McLeod and DiCola did not skimp on their research and provide a 360° view of how sampling evolved, the legal challenges it has raised, and possible solutions to those challenges.

[Luke Echo · Rating 2 out of 5]

A very detailed and well researched look into the legalities and financial aspects of sample based music.

The Author has a tendency to idolize the early hip-hop pioneers and well overstate their 'mis-use' of the sampler.

The last two chapters ramble on a bit though.