theorangeHUT
A sonic research facility, operating out of the UK & making sound art since 2002.
© & The Amen Break
By Karl Richard On 2010-07-29 -
After recently discussing with members of the PRS and MCPS about how copyright law protects an artist's body of work I figured this post was in order, as it refreshes my mind as to why people sometimes lift breaks and beats from other artists' recordings without any overbearing feeling that they may, somehow, be breaking the law. By going over this, I hope to raise some pertinent points that should always be considered by anyone sampling another person's work - and perhaps even by the artists being sampled themselves - about where one draws the line between copyright infringement and creative recycling.
So let's enter this murky world of copyright control and start by asking a question that, at least in my mind, runs somewhat parallel to other questions we'll be looking at later on: should we patent the individual genes that give rise to the mechanisms that produce a human body? If we do indeed decided it's fair to do this, having trudged through all the moral complexities that this modern dilemma poses… Then, by the same modicum, shouldn't one also be able to patent grooves within the collective genres of musical expression too? After all, aren't all the various rhythmic patterns that are found in most types of music self-similar in their regulatory nature to the genes responsible for the majestic orchestration of atomic machinery that gives rise to the complex protein based, cellular matrix of our bodies? In musical modes, rhythm similarly provides the temporal blue print on which the melodic content rests, allowing discernible patterns of harmonious expression to conjoin and unfold within gaited divisions of periodic constraint, containing motifs in conjunct packets or phrases that are able to evolve via a process of recapitulation, much like cells evlove with each successive generation. If we were to remove this guiding rhythm, then surely the melodic context would become more abstract as it fell about without timing, muddling over itself into an asynchronous and uneasy performance.
But what about the origins of these temporal patterns? Just as with genes… Who originally created the back-bones of musical form? Who are the originators that are due their royalties after each performance's rendition? At least with musical cadence and/or meters/grooves we might be able to scour through the history books and ascribe a specific rhythmic pattern or melodic mode to a particular artist, composer, or even a group of musicians who were credited with first issuing it to the public ear… Or, as is more common, a rhythm or melodic mode could be prescribed to a particular culture and/or era… But even then, as with most rhythms and modes that have been passed down within the highly subjective and evolving lore of folk music, stemming way back into the distant past to a time when people 'jammed' together in celebration and ceremony… Where does one rhythmic form end and another begin? With all the minor variations that seem to pop up, much like the minor differences between each human being, it's hard to separate one and call it distinct from the whole.
Also… In acient times there was never really any need to copyright a musical meter's invention so as to protect one's prospective 'monetary' interest. Musicians gave freely and, in return, people freely gave something back to them in order to sustain the musicians magical talent for show-casing their melodic and rhythmic aptitude. Only a capitalist society holding a skewed idea about the subjective worth of things in monetary terms could imagine such a debased view of the world where pretty much everything can belong to someone, no matter how intangiable or absurd the idea of ownership might seem on a particular notion. Relating this idea to genes is not that different… Perhaps we might offer the royalties derived from their expresion i.e. our bodies and lives, to a percieved creator by worshiping them in a regular fashion i.e. prasing God in church on a Sunday… If indeed there even is a god… But for a company to suddenly patent or copyright the gene that produces, say, insulin in the body and then ask for royalties everytime it is used (which will be everyday)… Well, I find the idea to be exceptionally unreasonable and in violation of natural sensibilities.
Still, if all these entertained instances of copyright were the "given" norm i.e. we owe people money for using even a millisecond of their recording, then shouldn't we even begin to patent and protect clichés in vocal communication, along with quotes and/or even arrangements of words themselves? And shouldn't companies like Roland begin to demand royalty payments eveytime someone uses the unique drum sounds produced by their TR-909 or TR-606… Or Fender claim monies for each guitar lick played on one of their own Stratocaster guitars? I mean, with the way copyright nowadays seems to 'snap over' and prevent any type of musical "recycling," I'm really surprised how any sonic artist who uses a computer can make a living from their trade. Isn't all the "nit picking" by the big record corporations just a scam to pinch every last penny possible?
In order to go deeper into this issue, we need to be more specific… So let's look at another important question. What is actually being copyrighted? Is it the sound itself… Or is it the arrangement of the sound(s)… Or is it the recording of the sound(s)?
For example, if I was to write a song, and then someone was to replay it, note for note, beat for beat, recording it all and then releasing it with the purpose to make money… OR even if someone was to simply re-record my song from the original master tape and, in a type of self-professed 'original' way, release it as a novel creation of their own… Perhaps I would be justified to accuse them of plagerism and sue them in a court of law for "ripping off" my tune. But on the other hand, if someone lifted two seconds worth of a rhythm section that I had created/written/performed/recorded (they having found it while listening to a record I had released) AND then sampled and rearranged those two seconds of sound into a new and funked out composition of their own, perhaps using a sampler or computer based software sequencer… And their composition showed no resemblance to my own original song or groove… Then perhaps I wouldn't/couldn't be as upset as I would have been if the former case of plagiarism had occurred. To be honest, I'd probably feel flattered over the later instance as someone had taken the time to listen to the music I had written!
Saying that… Some might argue that the sounds that make up the recordings themselves should be copyrighted. As to why they might argue this, I still haven't heard a good enough reason that would convince me to adopt this unusual paradigm. But what happens if artists use the same presets as each other on a particular synthesiser, or even use the same drums and microphones, along with an exact reenactment of their drum kit and microphone placement, along with using the same recording medium and mixing desk, hardware and signal flow? Should the copyright of the sound then be enforced by the synth manufacturer? Nonsense… We know for a fact that synth manufactures do not ask for royalties from the use of their instruments on albums… Nor do they copyright the presets they give out with each bit of hardware/software they make and sell. Why? Because perhaps then no one would buy their instruments for recording purposes. Can you imagine the royalties that Steve Via, Bob Dylan and others would have to pay out to their guitar manufacturers… AND – if we're going to be fair about this – then even the guitar string, microphone, tape and mixing desk manufacturers should get their fair cut, as all these give rise to and influence the sound of the recordings made with them. This could go on and on, ad absurdum, until even the manufacturer of the components of the mixing desk, along with the guitar string manufactures, and the miners that provided the metal for the strings, get their royalties. !?
Being an audio engineer myself, I certainly feel that the 'art' of recording an artist for an album needs to be taken into account on any release. The recording, mixing and mastering engineers all add their own bit of creative magic to the recording and final mix. And the engineers themselves do not want any old person re-recording/sampling their – and the band's – work without someone at least asking permission before hand… But to police to perfection the use of snippets of famous recordings, or old bites from obscure CDs and diced samples of unreleased studio recordings in an ocean of sound is almost impossible… And, in my opinion, very unfair as it could smother future creativity and prevent it from emerging.
As such, I feel these copyright laws should be really relaxed, so that they do not stifle the creativity of future artists who cannot afford drum machines or synths of their own just yet. In my experience, you never know where future talent or genius will show up, which could be enjoyed by us all and help an artist make a living for themselves in the future. Setting up a system that instills fear about "what will happen to me if I sample this?" can only discourage future talent from emerging and, thus, deny everyone the chance to hear new artistic expression. As Giorgio de Chirico once said, "To become truly immortal, a work of art must escape all human limits: logic and common sense will only interfere. But once these barriers are broken, it will enter the realms of childhood visions and dreams." I know that when I sample beats and breaks I am reconnecting with past influences for inspiration and out of respect to my influences. Where would hip-hop be now if we couldn't reinterpret the recordings of our mentors, peers and childhood heroes.
Bearing this in mind… Perhaps the record companies who impose stupendously strict rules on copyright should understand that if the use of any previous recording is recognisable in a new composition, and can be ascribed to original copyrighted material (whether the music itself is copyrighted, or the recordings are subject to copyright), then it should at least be declared by the sampler and – if necessary – royalties could be paid out. But if the samples are beyond recognition, then surely it will also 'slide' un-noticed and be free from copyright recognition? This is another grey area where much can be debated… While some might argue that without the original 'sample,' the 'sampling artist' couldn't have made their creation, and so needs to admit some sort of recognition to the 'sampled'… Others might then well ask whether we should make note of every little idea, speech and action that we originally heard or saw performed elsewhere, and then duly admit in a weekly confession all our creative life's non-originality? And on it goes… Where does this copyright fiasco end? Are there any hard a fast rules that are ultimately right? As far as I'm concerned, I must side with what Jim Jarmusch once said:
As you can see, copyright is no simple affair… At the best of times, it's a delicate and somewhat impenetrable mass of perplexing opinions, maddening morals and ludicrous laws… Many of which seem to be set up to stifle future creativity for the sake of preserving an artist's claim to a rift or groove they once performed. If anyone might be able to unravel this tangled mat of constricting codes of conduct, then it would be Judge Alex Kozinski, who once said during a copyright infringement law suite in 2003:
Over protecting intellectual property is as harmful as under protecting it… Culture is impossible without a rich public domain. Nothing today, like nothing since we tamed fire, is genuinely new. Culture, like science and technology, grows by accretion, each new creator building on the works of those that came before. Overprotection stifles the very creative forces it is supposed to nurture.
I will offer a video that was put together by Nate Harrison about how the Amen brake has forced us to consider what music and art really is and, thus, challenges us to understand why we shouldn't overly restrict the creative use of prerecorded sounds simply for the sake of getting fat on our spoils, as The Winstons didn't. Neither should we stifle the natural reinterpretation of melodic forms, otherwise we are directly suppressing the very process of evolution… A process that our brains naturally use to develop all acquired ideas into new thoughts and expressions, which is the essence of any evolution of an idea.
Just as Andy Warhol re-used other people's iconic pictures to weave his own brand of artistic expression, shouldn't we musicians/sound designers/sonic artists – AND record labels – continually re-evaluate and rework our ideals into new modes of moderated liberalism to encourage others to push the boundaries of what art stands for… To see what art can become… ? While doing this shouldn't we also recognise those who inspired us, for they left traces of their genius in our own reinterpreted visions and expressions of musical form… I mean why should the companies selling these records get 'nancy' over new expressive home brewed similes? Surely creativity follows the universal flow of self-similar realisation, ever expounding themselves into new narratives of form and rendition… All of which originated from their own varied memetic drives; drives that all our favorite artists themselves once followed to get to where they are now. How else were they guided to express new majestic, contemporary iterative interpretations of present-day musical analogies… ? Thus, should we not be encouraging these natural feedback loops ever onward into more evolved and convoluted assimilations, so as to provide new inspiration for future generations? Surely we can't doom our children to listen to the same music we did simply because we say it's good… New genius needs to be encouraged in order to bloom so that better temporal allegories are discovered and enjoyed by all. So… Isn't sampling just a type of Warholism? Did Campbell's Soup sue Warhol?
Ultimately copyright a very grey area in law… And I can understand why record companies – especially after the advent of the sampler and computer – want to protect their artists' rights, as well as their own, more than ever. No doubt piracy has cost them big bucks, what with people being able to 'burn-off' near perfect copies of original CD releases for their friends, etc… So – of course – they're bound to clamp down on any type of reproduction of their recorded copyrighted material. But when it comes to lifting nondescript rhythmic sounds from recordings… Perhaps the only royalty 'samplers' really need to pay to those 'sampled' is through the direct purchase of their recorded works which are being sampled. That, along with recommendations to friends and colleagues that this beat is "dope"… Then I feel that this more than covers those 'sampled.' After all, good advertising isn't free, is it. When you're down the "rubba" waxing lyrical to a friend about a new album you've just heard, one that you think they really need to hear… Well… To me, that's better than a big billboard in the centre of London's Piccadilly Circus.
All I can offer here is… Maybe if the 'sampler' achieves great acclaim and success for his or her work, one that used samples from another artist's work, then perhaps he/she should admit to any 'sampling' of said original works, and, if needs be, pay a portion of their earnings in royalties to the artist who has been sampled… And perhaps even the recording, mixing and master engineers for doing such a good job in recording the sampled material… ? But, obviously, that's just my suggestion.
I will also add this BBC 1 Xtra radio lecture that discusses the amen break in more depth and allows one to get a real feel about how influential that little drum loop has been to modern dance music.
The Amen Break – BBC Radio 1 and 1Xtra's Stories
In 1969 the drummer of a band called The Winstons performed a 6 second drum solo in a track called Amen Brother. He could have had no idea how that break would go on to become one of the most used samples of all time.
It was used in early hip hop records during the 80s, it cropped up in loads of old skool rave tunes and became one of the foundation stones of Jungle and Drum & Bass – not to mention all the other tracks which feature it in one form or another! There are loads websites, databases and facebook groups devoted to the subject, for some reason Djs and producers are TOTALLY obsessed by it.
Kutski explores the legacy of the Amen Break and tries to track down one of the original members of The Winstons to find out how he feels about creating the most influencial 6 second break in music.
https://www.theorangehut.com/wp-content/uploads/2010/07/01-History-Of-The-Amen-Break-Drum-Bass-_-Hip-Hop.mp3
Thanks to Ralph Pool, Dylan and Mira Calix for various pointers and insights into how copyright works and, perhaps, how it could work better.
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