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The Sample Clearance Fund: A proposal

Hi all,
I’ve been thinking to this for a while.
Now after the last RIAA actions against US pressing plants that are stopping printing cds that may contain uncleared samples, I think it is the right moment to share my thoughts with you. I wanted to put this on a webpage, but really have no time for it now… meanwhile, please take a look at this article, and let me know. :)

bye,
Nicola “Dj Batman” Battista
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THE SAMPLE CLEARANCE FUND
or
A proposal to solve the legal problems connected to sampling

1. Introduction
Sample clearance has always been a problem, since sampling and other music recycling techniques went mainstream somewhere in the late 80’s, as a consequence of the house music revolution.
Sampling and scratching already existed for almost a decade when UK group M/A/R/R/S went no.1 in the charts with their seminal “Pump up the volume”, which contained several bits of other records, scratched in by DJs CJ Mackintosh and Dave Dorrell.
They also made a legal case as they were sued by UK pop music producers Stock, Aitken and Waterman for using a bit from the track “Roadblock” without permission.
To be honest they weren’t the first artists to get sued for a sample; I remember rap pioneers like Grandmaster Flash paying royalties to Queen, Chic and Blondie for his 1981 release “Adventures of Grandmaster Flash on the Wheels of Steel” and even the classic that started it all – Sugarhill Gang’s “Rapper’s Delight” had some troubles because of the borrowed Chic bits (“Good times”). Since the days of M/A/R/R/S and with the diffusion of low-cost sampling devices, the number of artists sued for sampling has grown more and more. I could quote the other obvious examples: Black Box and Loleatta Holloway’s “Love sensation”, De La Soul and The Turles’ “You showed me”, The JAMS/KLF and Abba’s “Dancing Queen” (and tons of other stolen tracks), U2 vs. Negativland, Norman Cook of Beats International sued for borrowing a bassline from The Clash’s “Guns of Brixton” (but in that case he said the bassline had been replayed, not actually sampled).
Not to mention James Brown complaining about the fact that everyone was cashing on his old stuff.
More recently, The Verve sampling an orchestral cover of an old Stones track and ending up losing 100% of royalties on “Bitter Sweet Symphony” and Lo-Fidelity Allstarz’s “Disco machine gun” withdrawn from the shelves because of a second or so of distortion borrowed from a Breeders record.

Around 1988/89, it seemed that you could do anything with samples: you could put up an audio collage of whatever you wanted and put your name on it.
Can you remember any authorized samples on the early works of Bomb The Bass or Coldcut?
A while later things started to change. One of the first cleared albums was “De La Soul is dead” by De La Soul (1991). Today when some tracks from a few years ago are reprinted, their credits look different from the first time when they were released.
Black Box’s “Ride on time” is now by Limoni, Davoli, Semplici AND Hartman (the original composer of Loleatta Holloway’s “Love Sensation”). Moby’s “Go” now openly declares to contain bits of Angelo Badalamenti’s score for “Twin Peaks”. Even 2K (just another alias for the KLF) have cleared Isaac Hayes and MC5 bits for “Fuck the millennium”. And some cds have the inner sleeve full of almost unreadable microscopic charachters: a huge list of cleared samples.
But let’s be honest: IT’S IMPOSSIBLE TO CLEAR *ALL* THE SAMPLES ON AN ALBUM.

2. Fair use?
Collage is a legitimate form of visual art, so why and audio collage shouldn’t also be so? Also you can quote a sentence from a book and include in your own work. You indicate the original source and everything’s fine: you don’t have to phone the publisher and pay anyone for that until you keep yourself in the borders of the so-called “Fair use”. I must admit I’ve only read a bit of Negativland’s stuff on this subject, and that was in Italian, on a book called “No Copyright”.
From what I understood, I agree with most of their theories: copyright laws should fight entire bootlegs of commercial releases, not prevent an artist to recycle small bits of sound in a new, original work.
But what is exactly an “original” work? How far can I go with sampling? SAMPLING IS A CREATIVE JOB, NOT JUST PLAIN “BOOTLEGGING”. The recent RIAA actions show us that part of the industry still pretends not to understand that.
Someone said that if you sample the whole of Verdi’s Traviata you have a sample, and if you play it continuosly, that is a loop.
Now Verdi is in the public domain, I think, but that doesn’t matter: when do I go out of the fair use thing? From what I understood from the Italian translation of the Negativland’s article, a “fragment” is less than an entire work. And a fragment is ok.
But what if that “fragment” is just a few seconds shorter than the entire work?
Also: if someone asks you to sample a bit of an old track of yours, how do you react?
If a friend of mine who has a homemade project asked me, I think I’d say ok, go on.
If the same request came from a commercial act, and the fragment of my work was clearly recognizable, I think I’d ask for a percentage on royalties.
This seems fair. I remember some collaborator of Coldcut from the IDM Mailing List, saying that if some unknown bloke used some bits of a Ninja Tune track, that was ok.
On the other side, they had made George Michael pay when he sampled DJ Food.

3. The problem
I like to sample. Sometimes I sample just because I like a sound and want to use it.
Some other times it will be a random thing, clicking the “sample” button on my pc program while a record is spinning or while I am switching through weird MW radio stations, and capturing a second or more of what passes through my sound card.
Some other times I choose to sample as a vengeance. I hate a certain track, so I will take my revenge by destroying it and making something I like out of that track.
You hate that noisy 180 bpm gabber track? Sample it, and make a sweet ambient mix if you can. Or try to make a cool danceable number out of those boring classical music vinyl LPs you have in your livingroom. And so on.
Sometimes I will use the sample as is, most of the times I will change it a bit or even make it unrecognizable using tons of effects with some computer program.
Now, I don’t want troubles but I won’t stop sampling.
At the moment I have no money to pay anyone so if I make a great track I risk to have it sitting unreleased for years because of the samples. I have a friend that still has an exceptional project unreleased after two years, as he sampled tons of stuff from a well known TV serial (the actors’ voices and the soundtrack) and none will take the trouble to release it. In the past months I’ve been doing a plunderphonic project together with a friend of mine. This is supposed to be released as a homemade cd and a cassette. I will make copies on request. But even if I had enough money to release it in several thousand copies and distribute it through an independent distributor, and more cash to pay all the interested acts/authors/labels/publishers, I still would risk to be in troubles for uncleared stuff.
I sampled records from different countries and ages, some of those people could be even dead and I could waste years trying to get in touch with whoever has the rights to the material I used. Also, lately I’ve seen clearing also for movie and TV samples: James Bond movie snippets in Moby’s “James Bond Theme”, “Vanishing Point” sampled by Primal Scream for their “Kowalski”, BBC samples in the last Lo-Fidelity Allstars—- album, to mention just a few.

4. The solution?
If you’re an underground artist whose only interest is making a couple tapes for your friends, this won’t be of your interest. But if you start distributing your material, even in a no-profit circle, you might have problems with sample clearance.
Now wouldn’t it be easier if you had to deal with only ONE subject?
You make a found-sound collage; you want to release it and you want to be honest about it, even if you don’t have the necessary time and money.
You are a member of a society such as ASCAP or BMI and similar, and you usually register your material with them.
Well, in your country it may be different, but in most cases it works this way: here in Italy we have SIAE and for each track you have to deposit the score and the lyrics (for electronic/non score-based music you can deposit a tape) together with a form.
On the form you write all the relevant infos on the track, like the title, the names of the composer(s) and so on.
SIAE deals with both mechanical and performance rights and on the form you will have the performance/broadcast rights (DEM) indicated as a fraction
(the total amount is 24/24) and the mechanicals (DRM) as percentage.
For example, the form for my track “Braindancing” would look like this:

Title: Braindancing
DEM DRM
Composer: Nicola Battista 24/24 100%

of course, if I had the collaborator (another composer or a lyricist) Iwould have to share the percentages with them.

Composer 1 12/24 50%
Composer 2 or Lyricist 12/24 50%

and so on. Obviously, you can have almost unlimited combinations, as of course you could have many co-writers.
Now, if there was an agency for sample clearance or something like that, when I make a track with tons of samples I’d be very happy to register my track like this with SIAE:

Nicola Battista 12/24 50%
(Agency) 12/24 50%

and then this agency pays a quote of those percentages to its associates.
For doing so, the above mentioned agency should be itself a member of a royalty collection agency, in order to collect those percentages.

I’ve briefly talked about this to some people and posted in a couple of mailing lists on the Internet. I must admit I didn’t receive much feedback and I even heard from some folks who aren’t so excited at the idea of having to deal with another “royalty collection agency”. SIAE (the Italian Society for Authors and Publishers) is like a public office, and many people (club owners, people who organize parties and events etc.) see it just like another entity to pay taxes to. And even a nasty one, as SIAE deals not only with music but with literature, television, cinema, and even collects some minor taxes on behalf of the Italian Ministry of Finance.

The Fund I’m talking about would be in a certain way similar to other royalty collection agencies, but what I’m doing here is definitely not a proposal to build another SIAE.
We could have a Fund formed by independent artists, labels, authors, publishers and administered by its own members.
The Fund would have a list of tracks you can use, and everytime someone wants to use the Fund’s repertoire, like in the example above, any eventual performance or mechanical rights collected by the Fund would be shared between all the Fund members.
This way, if you don’t earn anything from your collage track (I’ve never seen a single lira from SIAE since 1996) you don’t have to pay anything. On the other side, if you make a million-selling hit with your cut’n’paste masterpiece, 50% of your writing credits will go to Fund members.
A method for calculating this could be dividing the sum for all the tracks in the fund’s “catalogue” and then divide the resulting quotes for all the interested parties. For example: The Fund has 1000$ and 100 tracks. Which means 10 dollars for every track. Then the 10$ will be divided between the author(s), composer(s), publisher(s) and the label.

5. More problems
a) no one replies positively to this proposal and nothing happens
b) no royalty collection agency accepts to deal with the Fund
c) the Fund is born, grows up and has huge expenses for its administration (it could be necessary to use part of the collected money for expenses or ask for a membership fee, and most folks would hate that)
d) you can freely sample the Fund’s tracks ONLY, so the Fund would work perfectly only if everyone in the music business was a member, and that might never happen.
e) the profits are divided between ALL the tracks. So some members would get money just because they’re members, and even if their stuff isn’t currently sampled by anyone. Some folks might think this is not fair.
f) etc.etc.

6. Conclusion
Sorry if I bored you to death but this my crappy writing style. I also apologize for any eventual typing error.
And this was just a proposal, and possibly the beginning of a debate.
I’ve been thinking to all this for a while, and now it was time to share.
What do you think about it?
Would you join the Fund? Why? Or, why not? What other solutions do you have?
Please spread this message the more you can and mail me your ideas/comments/suggestion at djbatmanATtin.it

Have a nice day, and keep sampling :)

Dj Batman

[originally posted on the Rumori Mailing List and archived at http://www.detritus.net/contact/rumori/000112.html]

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