One of the previous posts mentioned De La Soul and the case against them by
Let's set the record straight and look at a couple of cases that
demonstrate why sampling is such a controversial area.
The case by Gilbert O'Sullivan was actually against Biz Markie for his song
Now, take a listen to Biz Markie's riff on the tune:
There was a separate case against De La Soul for their use of bits of "You
Showed Me" by the Turtles in "Transmitting Live From Mars" on a fairly
short transition track from their lp "3 Feet High and Rising".
Here's the original by the Turtles:
Here's what De La Soul did with the Turtles, combining it with a French
language instruction record:
I would argue that both of these tracks do represent original work - uses
of short "riffs" is, in my opinion, the kind of thing that Fair Use should
encourage and where wrong-headed application of copyright law stifles new
In the case of Biz Markie, he uses a short riff from the O'Sullivan tune
and an off-key rendition of a few words of the chorus to create a
self-depreciating rap about himself as a kind of doofus. I'm familiar with
the O'Sullivan song and I didn't catch the actual recording sample the
first couple of times I heard the track. De La Soul turns a short riff in
the Turtles song into a mood piece, removing it from it's original
context. In both cases, the songs aren't constructed at all like the
original songs they are sampling.
De La Soul is really a case to think about closely when considering use of
samples. The group used samples from multiple recordings in just about
every song they made, latching on to riffs and sounds like a vacuum
cleaner, mixing them up, and reworking them into something very new and
trend-setting at the time.
Because of this sampling, De La Soul's back catalogue has been kept out of
circulation on digital services like iTunes, creating problems for faculty
and researchers that want to use this material in their courses that deal
with social issues, rap, or recent US cultural history.
Consider this example by De La Soul. Click on it and listen to it before
reading the rest of this message and test yourself to see if you can
identify all of the samples they use:
"Eye Know" uses Steely Dan's "Peg", "Make This Young Lady Mine" by the Mad
Lads, Otis Redding's whistle from "Dock of the Bay", and a drum part from
"Sing a Simple Song" by Sly and the Family Stone.
Does "Eye Know" really resemble substantial parts of any of the recordings
used? Today, with every tiny sample having to be licensed, could a song
like "Eye Know" be created without breaking the bank of some indie group or
How about the 1985 tune "What You're Thinking (Pure Energy)" by Information
Should the band have to pay the estate of Leonard Nimony for the repeated
use of two words and CBS-Parmount who owns the original "Star Trek" tv
episodes these two words came from, even though the two-word Nimoy phrase
is essential to the "hook" of the song?
For decades, classical, jazz and "pop" artists have appropriated lines,
hooks, riffs, and beats from other musicians. Creativity just works that
way - you get something stuck in your head, play with it, add to it and
make it your own. Think of the number of rock tunes that use a "Bo Diddley
beat" or the repeated phrases or riffs that pop up in big band or jazz
In the days of big band, jazz or standards, you would take musical phrases
and play them yourself on your own instrument - it might be the same
instrument used in the original and it might not.
What copyright law and Fair Use hasn't kept up with is the simple fact that
a vinyl disc or a digital sample in a computer or other kind of device is a
type of instrument - it lets you capture the soundscape around you,
manipulate it and make it into your own original work.
Granted, some uses of samples are closer to rip-offs or slight remakes of
other recorded songs. Case in point, "I'll Be Missing You", by Puff Daddy
and Faith Evans:
... which uses pretty much the same overall song structure and chorus of
"Every Breath You Take" by the Police:
The Police, by way, have said their song was influenced by Gene Pitney's
"Every Breath I Take":
Should Gene Pitney sue both of them?
Some would argue that some of the most creative work in pop and rap was
happening in the 1980s and 90s before several court cases limited what
artists would sample and play around with - records and cds of licensed
"beats" took over that were "safe" to use - the free range sampling of a
group like De La Soul just wasn't possible anymore and recorded music is
blander for it, the same beats and riffs popping up over and over again.
Some artists, wanting to get beyond what's legally "safe" to use, have
taken to releasing tracks or entire albums outside of commercial outlets.
The most well known example - Danger Mouse's "Grey Album", which
recontextualizes the Beatles's "White Album", mixing it with Jaz-Z's "Black
The Wikipedia article summarizes some of the controversy around the album
and the response to it by EMI:
On Mon, Mar 16, 2015 at 4:48 PM, Tom Fine <[log in to unmask]>
> Hi Aaron:
> What if "all the help it can get" entails a forced burst of originality?
> Just sayin' ...
> Maybe American popular music has been too derivative and has driven itself
> into a dark corner where nothing sounds new and thus very little sounds
> interesting. Laziness and taking the path of least resistance are human
> nature, so it's not surprising that in an age where nearly every bit of
> recorded popular music is hearable, most of it instantly, the typical pop
> artist wouldn't feel the need to sweat hard and find inspiration in a new
> Rather than protecting a bad status quo, shouldn't we embrace mechanisms
> that will shake out the dead wood and foster new creativity? I think that's
> the only future for all western musics (all of which, it's arguable, have
> become very derivative and stale).
> -- Tom Fine
> ----- Original Message ----- From: "Aaron Levinson" <
> [log in to unmask]>
> To: <[log in to unmask]>
> Sent: Monday, March 16, 2015 3:51 PM
> Subject: Re: [ARSCLIST] maybe the end of ripoff "songwriting"
> One point is that people are constantly referencing the similarities in
>> the RECORDINGS, which the Gaye estate by the way, does not even own. This
>> ruling will not stand imho.
>> Nor should it.
>> The chords and melody are quite different and a rhythm itself cannot be
>> copyrighted. This seems more a case of people not liking Robin Thicke and
>> the court of public opinion and not a musicological debate.
>> I think if it does stand it will have a decidedly negative and chilling
>> effect on creativity in popular music and that alone is extremely
>> Creativity in popular music in this day and age needs all the help it can
>> Sent from my iPhone
>> On Mar 16, 2015, at 2:47 PM, Tom Fine <[log in to unmask]>
>>> I think there's a difference between referencing a song or melody and
>>> outright ripping it off. Sampling is, and has been decided legally is,
>>> outright ripping off others' work, and thus those people must be
>>> compensated. Referencing -- using a riff or a run of notes, or taking a
>>> lyric phrase, for instances -- is more of a gray area. It'll be interesting
>>> to see how this Marvin Gaye descision ends up in the courts, and whether it
>>> ends up being a Supreme Court test case. I think Robin Thicke/Pharell's
>>> unoriginal tune more referenced than sampled that Marvin Gaye song, but
>>> it's worth looking at the instructions to the jury, because they did get
>>> relatively thick into the copyright weeds in deciding the case.
>>> David's reference to Bach is interesting, because I think Bach and
>>> Beethoven and perhaps Dvorak and other composers who recycled "folk" songs
>>> and melodies may have ended up in court under US Copyright law in 2015.
>>> Does Beethoven's 9th outright "sample" large parts of a German drinking
>>> song? Isn't that exactly what got De La Soul in trouble with Gilbert
>>> O'Sullivan? It would be interesting to hear one of the copyright experts'
>>> opine on that comparison.
>>> My disdain for the Thicke/Pharell situation is, if you can't come up
>>> with an original song, just credit the originator and pay the damn
>>> royalties on your hit. There's no shame in making a career covering other
>>> people's material. Look at all the crooners out there, look at many Country
>>> music icons, look at Sinatra, Presley, Ronstadt, etc etc. It's sleazy to
>>> appropriate and not give credit, in any creative endeavor. I look at Led
>>> Zeppelin ripping off Son House, Robert Johnson, Muddy Waters and others
>>> with equal disdain, even though I happen to like their music a heck of a
>>> lot better than Robin Thicke.
>>> -- Tom Fine
>>> ----- Original Message ----- From: "David Lewis" <[log in to unmask]>
>>> To: <[log in to unmask]>
>>> Sent: Monday, March 16, 2015 1:24 PM
>>> Subject: Re: [ARSCLIST] maybe the end of ripoff "songwriting"
>>> Grandpa Jones' tune -- and incidentally, I just delivered a talk on him
>>>> the Library Wednesday -- was his hit "Old Rattler" in the 1947 King
>>>> Pete Seeger's was something called "Old Gray Mule" from an album "Birds,
>>>> Beasts, Bugs and Little Fishes" that Rebecca had known since
>>>> childhood, but I'd never heard. I think Pete Seeger's recording is
>>>> but not much so. One thing both have in common is that they were big
>>>> fans of Cousin Emmy.
>>>> Dave Lewis
>>>> Hamilton, OH
>>>> On Mon, Mar 16, 2015 at 2:11 PM, Paul Stamler <[log in to unmask]>
>>>>> On 3/16/2015 9:31 AM, David Lewis wrote:
>>>>>> Just last night Rebecca pointed out to me an instance
>>>>>> where Grandpa Jones and Pete Seeger used exactly the same musical
>>>>>> for two different songs. Which of them wrote it? Neither of them; it
>>>>>> something that was out there before either of them and they simply
>>>>>> what they
>>>>>> knew to lyrics that were also around.
>>>>> Just out of curiosity, what were the Grandpa Jones & Pete Seeger songs?
>>>>> Old hymns also tend to be profligate
>>>>> in terms of what they are set to.
>>>>> Read the Sacred Harp hymnal, and you'll find the same words set to
>>>>> half a
>>>>> dozen tunes.
>>>>> The crossover between "sacred" and "profane" was a big deal; for
>>>>> "Come Ye That Fear the Lord" used the tune of "Captain Kidd". And my
>>>>> favorite example, Alfred Karnes's use of the tune from "Don't Let Your
>>>>> Go Down" with the lyrics to "The Promised Land" (rec. 1927 for Victor).