September 14, 2004

Last Week’s Question [8:01 am]

Gets asked in today’s Boston Globe: Will ruling on samples chill rap? [pdf] (See earlier So, What Is Infringement?)

What those who claim rap isn’t really music have always misunderstood is the remarkable creativity of sampling. Sure, some people lazily take an entire musical track, add new lyrics, and call it their own song. But especially during hip-hop’s golden era, producers such as Shocklee, the Dust Brothers (”Paul’s Boutique”), or Prince Paul (”3 Feet High and Rising”) layered hundreds of samples and snippets to create a collage of sound fashioned into a new song. It is artistry in the tradition of Brian Wilson or Ornette Coleman, both of whom always worked without boundaries in stretching the possibilities of their music.

But this latest court ruling will deter such efforts because few artists or labels will be willing or able to pay to secure licensing for every sample. (Can you imagine if the courts decided Bo Diddley should be compensated for his signature thundering guitar riff, which has been borrowed by such artists as Bruce Springsteen and The Who? He’d be richer than Oprah.) Can someone really prove that a chopped and looped two-second riff came from 40-year-old song, or that a chattering hi-hat was borrowed from an obscure rock track?

Yes, musicians have a right to protect their original work, but the open-ended nature of this ruling invites all kinds of frivolous lawsuits that will benefit neither artists nor fans. Hip-hop has survived the deaths of major stars, censorship, and Vanilla Ice, and it will certainly survive this ruling. Still, there’s little doubt that the judges who came to this devastating decision may well end up stifling the artistry and creativity their ruling sought to protect.

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