Some of the dopest hip-hop songs of all time were built on the foundation of classic R&B, soul and funk songs you might have heard back in the day at block parties, barbeques or even in your parents’ record collection. Here are a few…
“I Know You Got Soul” by Bobby Byrd
“I Know You Got Soul” by Eric B & Rakim
“(Not Just) Knee Deep” by Funkadelic was sampled for “Me, Myself and I” by De La Soul
“(Not Just) Knee Deep” by Funkadelic
“Me, Myself and I” by De La Soul
“Nautilius” by Bob James was sampled for “Run’s House” by RUN-DMC
“Nautilius” by Bob James
“Run’s House” by RUN-DMC
These hip-hop hits prominently featured samples from old records. Fast forward to today, and it’s rare to hear any samples in the most popular hip-hop jams. Why? Experts speculate that bureaucratic red tape, copyright lawsuits and clearance fees have all played a role in the declining use of samples in hip-hop.
“Creative License-The Law and Culture of Digital Sampling” a book by Kembrew McLeod and Peter DiCola, highlights the era between 1987 – 1992 when the technique of sampling was introduced into the production of hip-hop music. During this golden age of sampling, hip-hop labels didn’t sell millions of records nor making large sums of money.
Because these small or independent labels weren’t rolling in the dough, established artists, their lawyers and their record companies didn’t chase after them in pursuit of fees. In fact, they probably didn’t even notice that parts of their songs were being transformed into edgy hip-hop hits played on urban or underground radio stations. Creativity and experimentation flourished in this environment; artists weren’t hamstrung by red tape over clearing samples, the threat of copyright infringement lawsuits or complicated fee negotiations. They could freely experiment with this new technique and essentially reinvent old classics.
The case (Grand Upright v. Warner 780 F. Supp. 182 (S.D.N.Y. 1991)) that slammed the brakes on artists’ complete freedom to sample any song without repercussions involved Biz Markie who was sued for releasing “Alone Again” from his “I Need a Haircut” album. Biz and Warner Brothers tried to clear the sample used from Gilbert O’Sullivan’s 1972 hit, “Alone Again (Naturally),” before releasing the song but O’Sullivan never responded, so they went ahead with the release and were subsequently sued. In his opinion, Judge Kevin Thomas Duffy compared sampling to stealing, but listed no legal precedents. Here’s an excerpt:
“Thou shalt not steal” has been an admonition followed since the dawn of civilization. Unfortunately, in the modern world of business this admonition is not always followed. Indeed, the defendants in this action for copyright infringement would have this court believe that stealing is rampant in the music business and, for that reason, their conduct here should be excused. The conduct of the defendants herein, however, violates not only the Seventh Commandment, but also the copyright laws of this country.
Today the process of clearing a sample consists of two steps:
- Securing permission from the owner of the master recording, most likely the record company or whomever owns the catalog
- Securing permission from the owner of the publishing rights, usually the songwriter(s).
It typically costs the same amount to clear a sample with each owner. For example a sample from a James Brown song might cost $20,000. This means the owner of the master would receive $10,000, and the owner of the publishing would also receive $10,000.
The prospect of paying huge fees is another contributing factor for the decline of sampling in hip-hop.
In the current climate it would be virtually impossible to release an album like Beastie Boys – “Paul’s Boutique” mainly due to the onerous sample clearance process and high costs associated with obtaining samples. Based on an economic model done by McLeod and DiCola they calculated that even with album sales of 2.5 million units, Capitol Records would still be in the red to the tune of $20 million due to the costs associated with clearing samples for “Paul’s Boutique”.
Personally, I think the industry should establish a standardized process allowing music producers to use samples in their tracks without breaking the bank. This process would protect producers artists from the looming threat of a lawsuit, allow creativity to flourish freely in hip-hop, expose forgotten artists to a whole new generation of listeners and potential music buyers and increase the chances of them or their estates earning income they would otherwise not receive from artists using their old material.
We would all win – the listeners, the originators and the innovators.