June 5, 2015
1. A sample
This article by Justus Köhncke, music producer, Dj and columnist was first published on the German online magazine Kaput - Magazin für Insolvenz & Pop. It appears on The Attic as part of an editorial-exchange between the two publications.
Forgive us if this week’s column seems to be an excursion into the wilds of music law. But I thought we had sort of agreed that in pop, a groove, when it really works, isn’t just a few rhythmic choices bashed out by a computer or those nice people in the rhythm section. It’s the magic, it’s in the air, it’s as much a mood, a feeling. And you can’t patent a feeling, right? Wrong.
A sample is another business entirely. It’s a musical quote of the most literal kind - there in the middle of a “new” song is a little excerpt of an older one made by someone else. In music business terms it’s a profit centre - whether stolen or pre-agreed someone is going to get paid. Nile Rodgers once confided in me (in a long and very gratifying conversation), how large the music world’s addiction to Chic sampling had become, and how as far as he’s concerned this is fine. Let’s be clear, the man gets paid his dues.
And this principle, that sampling is going to cost you, has been with us for ages now. Back in the late 80s, when De La Soul dropped “Three Feet High And Rising”, their beautiful sampladelic patchwork debut, their insanely wanton use of “uncleared” samples of mainly white (!) pop hits by the likes of Hall & Oates and Eurythmics led to the rules getting nailed down pretty clearly. The story goes that after all the relevant publishing company lawyers had got home, the band had absolutely no way to make money out of this, a global hit album.
But if a sample is a well-established principle of copyright law, “ripping off a groove” most certainly is not. This is at the core of the recent Blurred Lines/Got To Give It Up court case, where the Marvin Gaye estate successfully sued Pharrell and Robin Thicke, and seems to establish that you can indeed rip off a feeling. So a new song, with a different melody and unrelated lyrics, can now be sued according to an entirely fresh set of music copyright principles. Exciting times to be a music lawyer, and terrifying ones if you make pop music for a living.