The Jan Diaries — Sampling: Legal, Illegal or Moral? (Part One)

Red Bull Hrvatska · The Jan Diaries · 16 November 2020

Pure inspiration is a myth, Jan Kinčl argues, and hardly a work of art exists that does not have somebody else’s influence built into it, however well hidden. That is the premise of the first of two entries in The Jan Diaries on sampling — this one on the law and the history, the second, three weeks later, on why a good sample is a cultural bridge rather than a theft.

What the piece covers

Kinčl defines sampling plainly: recording a fragment of already recorded music into a sampler or production software, then manipulating it into something new. The historical route runs through jazz. John Coltrane’s fourteen-minute reading of My Favourite Things, a Rodgers and Hammerstein number from The Sound of Music, borrows the composition wholesale and moves it into a completely different dimension — and the 1960s credit structure was unambiguous, with Coltrane the saxophonist and Richard Rodgers and Oscar Hammerstein the writers. The 1980s then brought the Akai MPC60 and the E-mu SP-12, machines that let producers lift fragments off vinyl and rebuild them, which is where hip-hop comes from. An entire generation of it was built on the drums from James Brown’s Funky Drummer — and Clyde Stubblefield, who played them, never saw a cent, despite turning up in over a thousand songs including records by George Michael and Sinéad O’Connor.

The legal section is the useful part, because it refuses to be tidy. Three premises are in circulation: that sampling is flatly illegal without a cleared agreement with authors, publishers and rights holders; that it is illegal only past four bars, a myth producers keep alive among themselves; and that legality turns on how recognisable the sample is and what role it plays in the new composition. Court records back none of it consistently — some rulings found unrecognisable samples illegal, others waved through obvious ones. Across a run of cases what counted in the sampler’s favour was that the sample was audibly altered, that it did not carry the lead melody, and that the new track lived in a different market segment altogether.

The part that stayed

The counter-example is Missy Elliott, who budgets sample clearance into production costs. Lose Control is built on Clear, the Detroit electro classic Juan Atkins cut as Model 500 forty years earlier: Atkins gets paid, and a listener who follows the thread — whosampled.com makes it trivial — ends up in a pioneer’s catalogue. In hip-hop and deep house, knowing the original carries real prestige. Kinčl closes with The Prodigy’s Smack My Bitch Up: simple moves stacked into something close to genius, and almost nobody listening knows how it was assembled.