jason (FMA Admin)

Copyright Criminals, a fantastic documentary on sampling in music, airs tonight on PBS [more info on PBS] [Copyright Criminals homepage]

I had the opportunity to preview Copyright Criminals this past October at the Future of Music Coalition Policy Summit. During the Q&A and the ensuing Remix panel, filmmakers Benjamin Franzen and Kembrew McLeod talked about the difficulties in producing a documentary about illegal sampling. The film would not have been possible if they actually cleared every sample, so they tried to determine which music samples they'd need to clear, and which could be defensible under fair use. Fortunately, documentary filmmakers have a Fair Use Best Practices. We need something like this in music!

The filmmakers also found cool ways to compensate some of the key people in sample-based music who haven't gotten their fair share. One of the major plots of the film follows Clyde Stubblefield, James Brown's drummer who played the infamous "funky drummer" sample, but didn't own the rights to that recording. Rather than license the sample from James Brown's estate, the filmmakers throw down for some studio time, and Subblefield makes a new recording that he owns.

The film focuses on sampling's rise to prominence and in the "golden age" of hip-hop -- on artists like Biz Markie, De La Soul, and Public Enemy. I don't remember if it was in the film or just during the Q&A, but at some point the directors stated that if a sample-heavy album like Paul's Boutique had cleared all samples, they would have lost $20 million on the album to date.

On the other end of the debate, Steve Albini plays the role of the producer, studio-owner, and musician who uses strictly analog equipment and doesn't care much for sampling and "remix culture". His point is basically that it's easier to copy and build upon what somebody else has done, than to go and do it from scratch like he does with his own music. I agree, but I think that's kind of the whole point, right? Some people are able to build on pre-existing musical ideas to create something that stands on its own.

We need to find a way to decriminalize sample-based music, beacuse the sample-clearing process alone -- let alone the cost -- is enough to force the majority of sample-based musicians to operate on the other side of the law. Maybe it's by bringing all sides of the debate together and defining Fair Use Best Practices, just as documentary filmmakers have done. Or maybe it's a statutory license -- imagine if you could pay in advance to remix/sample based on how many copies you're making, just like the law grants anyone the right to cover a song. And/or maybe it's a profit-sharing agreement (just like sampled composers often get co-songwriting credits) under which non-profit sampling is deemed fair use. That's the dream...

If you don't own a TV, Copyright Criminals is also available for free online if you know where to look (along with everything else our culture has ever produced).