Perfect Sound Forever

Sample Sources, Within Reason


Akai sampler- a cultural weapon?

In Defence of a Robust Public Discussion
By J. Vognsen
(June 2021)


In January 2021, Mosi Reeves published an article titled "Sample Snitching: How Online Fan Chatter Can Create Legal Trouble for Rap Producers." It provides a brief but nuanced introduction to a number of questions around the public debate on sampling. The article focuses on rap and hip-hop, but the issues raised have much broader relevance.

In the article, Reeves writes about receiving a message from an independent rap label asking that certain samples on a recent release not be mentioned in public discussion of the music. The reason is straight forward, according to the label: "We've already had to pull records because people had named the source in YouTube comments and then it ended up on WhoSampled and the rights holders saw it, smh."

To understand this situation, all one needs to know is that current sampling law means that legal sampling can be expensive, cumbersome, or outright impossible, since rights holders have the option of denying use altogether. Producers and labels without fat wallets and plenty of time are then often faced with the following choice when working with samples: Do not release the music, or release it illegally and hope the copyright holders do not notice.

It is in the latter case that the expression "sample snitching" referenced in Reeves's article can become an issue. This expression describes the act of publicly identifying the sources of illegal samples, potentially attracting the attention of rights holders--or their lawyers.

Prior to reading Reeves's article, I thought the discussion of "sample snitching" had been rendered moot. Surely the existence of the WhoSampled website and their app makes it a practical impossibility to keep sample sources secret? Whatever one might think of "sample snitching," surely the issue is now only of historical interest?

Turns out that I was wrong, or at least that my judgment was premature. The issue still merits thought. In the following I'll outline my own attempt at answering the question of whether it is acceptable to discuss sample origins in public.

As it is, producers and labels are in a very tricky situation: In the age of the internet and anonymity, it's obvious that an appeal to the public at large to not discuss samples would have a very limited possibility of actually working. There is simply no way of making sure that everyone refrains. And efforts to have anyone notice the request at all would risk a strong Streisand effect.i But what I want to speak to here is the individual listener considering sharing some sampling facts in public. What considerations would be appropriate for this person?


Outline of what follows

First, let's take a step back to expand our focus a bit.

I think there is not only one, but really two basic issues to consider with regard to the public discussion of sample sources. One deals with artistic matters, the other with legal matters, i.e. "snitching." The first I think is potentially profound but in some ways more easily navigated. The second tends to the more banal, but is in practical terms more difficult to handle. I'll try to cover them both.

I'll proceed through the following sections:

As indicated, my end point is that public sample identification is worthwhile but comes with a risk that should be addressed. I suggest that the timing of the public conversation in particular may be considered but also raise the idea that technological advances will, indeed, make the discussion moot as it will eventually be impossible to keep relevant sample sources secret.


In defence of sample identification

One might wonder, why engage at all?

Three reasons:

  1. Because there are many interesting things to be learned from thinking about sample-based music. Such a discussion would be severely limited if it is not allowed to include identification of sources. One cannot have an informed, thorough, and useful discussion about what sample-based music is and how it works without getting specific, just as one cannot have a similar discussion of classical music without considering instrumentation, ensemble size, etc.
  2. Because sample identification and the public discussion of it can be an entryway into the world of the sample sources. Exploring the sources of samples can function as a stepping stone to a broader cultural outlook and to discoveries of enjoyment. It is often said in defence of sampling that it brings forgotten artists back into the public eye. This works only if we can name them. In addition, sample identification might enhance our appreciation of the particular piece that employed the samples.
  3. Because sample identification can be a way of paying respect to the musicians whose work is being repurposed. Drummer Clyde Stubblefield is one of the most sampled humans of all time, and I think we should hear him out on this. At one point he remarked:
    "Instead of receiving money for sampling, I'd prefer to get my name on the recording saying, 'This is Clyde playing,' to get my name out. Money is not important. (...) I never got a 'thanks.' I never got a 'Hello, how are you doing?' or anything from rap artists. The only one who thanked me was Melissa Etheridge."ii
    Sample identification can go some of the way toward getting Stubblefields name out and making sure he receives the appreciation he deserves.
I believe this makes for a strong prima facie case for the merit of public discussion of sample sources.

Now let's look at the complications.





Is it always good to know?

The first challenge takes aim at 2) above. What if sample identification does not enhance our appreciation of a piece of music, but diminishes it? And what if it does not lead to "a broader cultural outlook," but just functions as a distraction? iii

I think there are profound issues here, and one can continue: As the ease of accessing information increases, does depth and meaning disappear? Does immediate access to answers dampen creativity? Does a website like WhoSampled make it more difficult to approach a sample-based piece of music as an experience in itself, not just a reflection of something else? Does a culture of sample identification take away from musical experience, transforming it into a form of perpetual taxonomizing?

Transparency gives clarity, but also removes mystery. Is it always good?

Two points on this:

  1. These would not just be arguments against WhoSampled or similar sample identification initiatives, but are basically arguments against any system that makes background information on artworks more easily available. If this is the argument one wants to have, one should be clear about the implications.
  2. Mileage here will surely vary, but even as someone who enjoys a good mystery, I also have a strong urge in the opposite direction. I like to know how music is made, not just how it sounds. Looking at the mechanics on the inside, learning about process and context, can make me appreciate something more. I cannot be the only one to feel so.
While I agree that there are important issues here, I do not see any moral issues at stake. No threat of force or direct danger to anyone's livelihood is involved. I can see no argument here for asking that others do not engage in sample identification. The standard boring liberal answer will do just fine: If you don't want to know, don't look. Let others do as they please.

No general answers to the questions posed can be given, only contingent ones. Every listener must decide for themselves how to proceed, depending on relevant and hopefully enlightened goals and desires. True, mystery by choice is not the same as actual mystery, but that is where we are and will remain.


Interlude: A brief clarification on "snitching"

So far, I've used the word "snitching" in quotation marks. This is because "snitching" is not a neutral word. Snitching is bad. Using it as an entry point into this discussion risks being question begging.

What we are actually discussing is whether it is OK to draw attention to--directly or indirectly--the rule breaking of others. And the answer to that question depends importantly on whether the punishment that might follow is justified. It is when the punishment is not justified that problems arise.

The question then is whether the current system of intellectual property rights and how it applies to sampling is just. I believe that it is not. But I will not argue the case here, for two reasons:

  1. An evaluation of this system and the proposals on how to improve it that would be necessary for a serious critique would be an enormous undertaking, and I don't have the time.
  2. It is not really necessary for our present purposes. If one believes the system is just, there is no problem to consider. Feel free to discuss any sample, anytime, anywhere. iv
What follows then only makes sense if one shares to some extend the sentiment that the punishment that might result from illegal sampling is unjust, or at the very least undesirable.


"I'm an actual Nazi. Are you hiding an illegal sample in your basement?"

We now arrive at the second challenge. It does not address the arguments in favor of sample identification; it claims rather that there are countervailing concerns of larger importance, i.e. the right of the producers not to be punished for releasing sample-based music.

Strictly speaking it is not public discussion of sample sources that is a threat to producers, it is the actual laws that the discussion may trigger. The fundamental problem is the legal system, and one should not lose sight of the fact that if given the choice, this is what should change, not the public discussion.

However, given that the situation is as it is, I agree that it is important to consider whether a discussion might make someone the target of unjust treatment. In that case, it will not do to just wash one's hands and say, "Well, I didn't make those laws."

The basic morality involved is not difficult: All else being equal, one should not share information that would directly lead to others receiving unjust punishment. One should remain silent, or possibly even lie. However, the less unjust the punishment, the less grave the act of bringing it about; and the less direct that line is, the more responsibility diminishes.

What is difficult is evaluating where exactly on the scale we are.

To properly evaluate this question, one would need some data on the actual risk to a producer of getting sued in particular instances of illegal sampling, on how much a public sample identification increases that risk, and on the exact form of the punishment. This I do not have.v But there is at least evidence to the fact that sample use has changed in response to lawsuits. Reeves quotes Madlib from 2013 to this effect:

"I see why a lot of my homies don't sample.... They got sued because y'all talkin' about 'em on the blogs and stuff. That's killin' it for the game."
The discussion goes back to long before blogs and WhoSampled, beginning in the early '90s, when the first major lawsuits appeared. vi It would stand to reason that the problem only grows as it becomes easier for rights holders to identify cases of sampling. It is without a doubt big enough concern that producers and labels are adjusting their behavior.

Given this but also considering the fact that the specifics are hard to determine, I think the conclusion should be that we're acting under uncertainty and should proceed with at least some amount of caution. Most instances of sample identification in public probably have no adverse effect on anyone, but some do. So the moral problem is there.

Another important matter is that the current situation is far from stable.

At the present moment, a database like WhoSampled's still has to be manually fed by actual humans spotting the samples and listing them. But it seems inevitable that the human factor will eventually disappear and that identifiable samples of any song will be found via automated search engines on any mobile phone as easily as airplane ticket prices or weather forecasts today. In other words, it seems clear that sample secrecy is destined to die. Identifiable samples will be identified.vii

When?

No idea.

Today it still makes sense to ask about whether one should discuss a certain sample in public. But let's keep the future scenario in mind, as well.


Summary: The problem, restated

We then get to the core issue: Why not remain silent forever?

One might ask whether it would in fact be desirable that all public sample identification ended until a just legal system was in place. Perhaps. viii However, we can't get there from here. What we have to consider is a situation constituted by the following:

  1. The value of public sample identification is real.
  2. The risk that public sample identification leads to unjust punishment is real.
  3. Public sample identification will not end.
In response to the morality outlined above, it turns out that all else is not quite equal. 1) and 3) also matter.

We have already dealt with 1) and 2) in various ways, but a few more comments on 3) seem warranted: People have eagerly identified samples as long as they have been used in music. It is fantastical to imagine that this desire will disappear, and it is impossible to imagine ways to enforce any kind of ban on the activity, unless we're willing to consider draconian measures for it. I'm not.

I think this leaves only one question: What are the reasonable limits on public sample identification that minimize 2) while maintaining 1) and do not seem ridiculous and excessive considering 3)?ix




Drawing borders around the discussion of sample sources

As far as I can see, and as of today, those wishing to discuss sample sources in public while remaining conscious of the threat to the creators of that very music have three options to consider.


Limit the venues where the discussion takes place?

If lawyers searching for potential targets for sampling lawsuits are looking anywhere but on WhoSampled, they are wasting their time.x The site covers a lot of territory, and the quality of information is often good. Submissions are vetted by administrators, and there's a lively community discussion about the entries. I use the website a lot myself and can attest that its functionality is most splendid.xi

Indeed, Reeves quotes Eothen "Egon" Alapatt, former manager for the Stones Throw label, on WhoSampled's centrality:

"That website is probably the source of every copyright lawsuit taking place with anybody that put out a record that was successful enough and didn't clear the sample on it."
One might extrapolate from this that discussion in other public fora is less important and thus more permissible. I think this is basically correct, but also think one has to be careful about how much the distinction entails actual practical difference. I think the only safe assumption would be that a public discussion of samples--if it is of any interest to anyone--would eventually result in some action in the WhoSampled archives. The speed would vary depending on the origin, but sooner or later someone would pick up on it.

So while considerations of place matter, they cannot be the central concern. It is simply too difficult to predict how information would spread from an online public space. Truly sensitive material should not be posted in a comment on a public blog, for example, even if there is little chance that a lawyer working for the case of injustice would find it there. xii

Limit the types of samples discussed?

Another option would be to stick to cleared samples. Obviously, identification of cleared samples is not in and of itself a problem. But it is not always easy to discern the legal status of a sample, making this guideline difficult to follow. It's also not obvious that the result of following it would always be good. In case we were able to make it work and ended up with a public listing of legal samples, that would constitute a form of "snitching by suggestion" as it would inadvertently highlight every track not listed there.xiii Finally, cleared samples might simply not be the most interesting or the most in need of discussion, so the system might not gather much steam.

As before, it seems there is something to this idea, but it cannot be our central concern.

No, probably focus on the timing of the discussion

A final idea would be to have a form of "grace period," for lack of a better term.xiv If it is clear that it is unreasonable to attempt to limit public discussion of illegal samples forever--as I believe it is--but it also remains the case that discussing a sample could create immediate problems for the artist, might there be a dividing line somewhere in between?xv

It seems a balance has to be struck. But where? Five years from release date, perhaps...?

One problem with this idea is that it's far from obvious that it makes sense. There is no direct connection between when a piece of music was released and whether the creator could get sued for the use of an illegal sample in it. But unless one wants to extend the vow of silence forever, the line will have to be drawn somewhere.

As it stands, this--consideration of timing--is my best answer to the question about if and when it's appropriate to discuss sample sources in public: Give it a couple of years. If any individual wants to try to implement some reasonable approach, this seems to me to stand the best chance of having some effect: Unlike the focus on the place of the discussion, focusing on the timing contains no issue of leakage (assuming a continued lack of time travel). And unlike the focus on the legal status of the samples, it is easily followed and does not seem to risk obvious counterproductive effects.

But it is an uneasy compromise. It certainly doesn't resolve the basic dilemma. It just tries to deal with it with some sense of proportionality. The good news is that this uneasy compromise would not be in effect for long. The bad news is that what follows could be far worse.


Epilogue: Sampling after the end of sample secrecy

In 1955, when Little Richard wasn't available for a string of gigs, James Brown could take his place apparently without the audience's noticing, given the dearth of photos available.xvi If today, say, Cardi B tried to tour as Nicki Minaj, someone with a phone at hand would alert the world within seconds. Similarly, I believe the idea of "sample secrecy" will become as obscure a notion as "impersonation secrecy." Technology will simply erode that option.

Those not able or willing to work exclusively with cleared samples will have two basic options for continuing sampling as secrecy disappearsxvii:

  1. Sample sources will have to become unrecognizable. Samples will become shorter, more manipulated. A practical problem to this is that it would always remain unclear exactly where the limits are. Something that is unidentifiable to the technology of today might be easily identifiable tomorrow. The practice would also per definition put pressure on the use of samples as meaning bearers and as explicit sources of reference. Sampling then would increasingly be a matter of pure, abstract sound.
  2. Sampling would have to embrace a status as an outlaw art form and go truly underground. Artists would need to remain anonymous, and issues of distribution and remuneration would have to be considered, to put it mildly. The problem of how to maintain anonymity would also remain, again subject to constant and unpredictable changes.
In all honestly, both would be pretty exciting to watch play out from a creative standpoint. But what would be lost if they were the only options available to rebel samplers would be colossal.

Where does this leave us, then?

The simple answer is that sampling law should be changed with some urgency to make it more just. The difficult question is what to do in the current situation. But I worry that the real question is what to do in the future if copyright law is not changed. The question would then not be what to answer the Nazi at your front door asking if you're hiding something or someone in your basement. The question will be what to do when he already knows perfectly well because he has a phone in his pocket and knows how to use it.



NOTES:

1. Using the music created by others without their permission while hoping that no one talks about it in public might appear hypocritical. I do not think it is, as the two things are not in fact equivalent, but I will shelve the discussion for now.

2. Kembrew McLeod: "An Oral History of Sampling," pp. 93, 87.

3. These questions are not touched upon much in Reeves's article, but belong to a full exploration of what to think about sample identification. If there are no benefits to sample identification, the discussion collapses before legal issues even enter into it.

4. It would be interesting to know if there are people who publicly identify sample sources with the clear intention of triggering punishment. Does anyone see themselves not as "sample snitches" but as Sample Whistle-blowers, somehow? In hip-hop lingo, does anyone feel it's proper to snitch on a biter?

5. Details on punishment could be looked up without unreasonable strain by a more diligent researcher, but the other two issues would require serious legwork to quantify, I suppose.

6. Kembrew McLeod quotes (someone from) De La Soul as saying, "It got to the point when a lot of these older musicians, their grandchildren were telling them, 'Yo, you're being sampled,' so, you know, that's how they found out." Kembrew McLeod: "An Oral History of Sampling," p. 90. For more discussion of the musical changes brought about by sampling lawsuits, see Amanda Sewell: "How Copyright Affected the Musical Style and Critical Reception of Sample-Based Hip-Hop," pp. 298-313; and Kembrew McLeod & Peter DiCola: Creative License, pp. 187-216.

7. One can go further still and ponder a future entry into the legal profession of highly competent computers. Reeves quotes a label owner on the current power of a search on WhoSampled: "If I'm the lawyer who represents James Brown's publishing, I can go to WhoSampled.com, put in James Brown, and I've got millions of dollars' worth of lawsuits that I can now strike. Once a song is on WhoSampled, it doesn't matter how popular it is. Now there's this website that just tells [rightsholders], 'Oh, here they are.'" Presumably someday the lawsuits themselves can be handled on a similar timeframe. For a recent discussion of the related issue of sample clearance and "enforcement by algorithm" on YouTube and elsewhere, see Michael Rancic: "Clearance Culture Is Hindering Canadian Artists' Creativity."

8. I can see a couple of possible ways of arguing against this view, for example: 1) The benefit of sample identification is so huge as to completely outweigh the concerns of producers, and 2) Even though the situation is unjust, producers are knowingly entering into it, which constitutes some form of consent. Not sure how well either of these works, but also do not consider the question closed.

9. Some might go so far as to say that given 3), all resistance is futile and ridiculous. Very well. I then offer what follows as guidelines for those among us with a deontologist bend. For my view, see n. xii.

10. In the early '90s, Polydor Records was reported to have two lawyers working full time on tracking down samples of James Brown records. Jeremy J. Beadle: Will Pop Eat Itself?, pp. 175, 205. It would be interesting to know exactly how they went about their business, but today it's clear that two lawyers armed with WhoSampled could get a lot of work done.

11. I have never used their app and do not know how well it works.

12. I think the idea that "Someone will put it online, so it might as well be me, and it might as well be now" does not work. Timing does matter: Sooner injustice can add up to more injustice in the end. However, "It's already on WhoSampled, so I can share it elsewhere" does appear to work and leads naturally to the question of when one should add new entries to WhoSampled. One caveat is that, as Reeves points out, it's possible for producers to request that entries be removed from the site if they are considered too sensitive.

13. By mixing both cleared and uncleared samples without specification among their listings, WhoSampled might actually make it more difficult and time consuming for lawyers to track down illegal samples than if the site had gone through the work of sorting it out first and only included cleared samples. Perhaps sample identifiers should make it a rule not to declare the legal status of a sample, or even actively spread confusion about it?

14. Suggestions welcome.

15. To be clear: I'm not claiming that anyone has actually argued for Eternal Confidentiality; I'm just trying to reason my way through the logic of the argument.

16. Peter Guralnick: Sweet Soul Music, p. 225.

17. I'm again trying to sidestep a lengthy discussion about legal specifics, but will note that in addition to the question of its reasonableness, a separate issue concerns copyright law's lack of clarity and predictability. Regarding the situation in the U.S., Olufunmilayo B. Arewa wrote in a useful overview in 2006, "The application of copyright law to hip hop reflects an evolving doctrine that is by no means standardized or consistent." Olufunmilayo B. Arewa: "From J. C. Bach to Hip Hop," p. 569.



SOURCES (naturally!)

AREWA, Olufunmilayo B.: "From J. C. Bach to Hip Hop: Musical Borrowing, Copyright and Cultural Context," North Carolina Law Review, Vol. 84, 2006, pp. 547-642.

BEADLE, Jeremy J.: Will Pop Eat Itself? Pop Music in the Soundbite Era (Faber and Faber, 1993).

GURALKNICK, Peter: Sweet Soul Music: Rhythm and Blues and the Southern Dream of Freedom (Back Bay Books, 2012; orig. 1986) .

McLEOD, Kembrew: "An Oral History of Sampling: From Turntables to Mashups" in NAVAS, Eduardo (ed.), GALLAGHER, Owen (ed.) & BURROUGH, Xtine (ed.): The Routledge Companion to Remix Studies (Routledge, 2015), pp. 83-95.

McLEOD, Kembrew & DiCOLA, Peter: Creative License: The Law and Culture of Digital Sampling (Duke University Press, 2011).

RANCIC, Michael: "Clearance Culture Is Hindering Canadian Artists' Creativity," New Feeling, October 15, 2020; http://www.newfeeling.ca/2020/10/15/backxwash-copyright-clearance-culture-hindering-canadian-creativity/

REEVES, Mosi: "Sample Snitching: How Online Fan Chatter Can Create Legal Trouble for Rap Producers," Pitchfork, January 21, 2021; https://pitchfork.com/features/article/sample-snitching-how-online-fan-chatter-can-create-legal-trouble-for-rap-producers/

SEWELL, Amanda: "How Copyright Affected the Musical Style and Critical Reception of Sample-Based Hip-Hop," Journal of Popular Music Studies, Vol. 26, Nos. 2-3, pp. 295-320.


for comments and disagreements, thanks to Chris Cutler
Jon Leidecker
Alex Benkhart
Mathieu Garillon
Dani Daigle Kida
Anders Bach Pedersen
Martin Hoshi Vognsen



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