The Column Sampling Sampling Column

The Column Sampling Sampling Column

My column last week seemed to have struck a chord, or perhaps a nerve, with a segment of Chatterbox readers, and I am gratified by the lively, thoughtful, and high-minded discussion taking place in the comments section. I haven’t been able to really get inside the back and forth because I am currently traveling with only intermittent internet access, combing the back roads of Thailand in search of new sounds and spicy food.

Many of the commenters raised issues that could each merit columns on their own. I’d like to jump on one or two today, throw in my two cents (or, more precisely, baht) and once again open the floor. For those of you who would like to catch up, please take a look. I’ll meet you back here after you’re done.

First of all, belated thanks to commenter Herb Levy, who was the person who pointed me to the clip of Lessig’s talk in the first place. Also thanks to William Osborne for the pointer to Sonia Katyal’s excellent article “Semiotic Disobedience,” which updates John Fiske’s postulation of semiotic democracy to include the notion that the disconnect between existing laws and digital media forces artists to “alter existing intellectual property by interrupting, appropriating, and then replacing the passage of information from creator to consumer.”

Today I’d like to move the discussion back a step or two, away from the legal, and focus on the ethical and aesthetic. Last week, Richard Lainhardt weighed in early on with a most provocative comment:

I agree that appropriation can result in viable and creative art, but I think there are levels of creativity here. I’ve always felt that someone who creates original work from nothing is, in general, more creative than someone who can’t create without building on the pre-existing work of others. And so I feel that, in general, painters are more creative than photographers, animators more creative than filmmakers, musicians more creative than DJs. And I think it better to [be] more creative than less so.

I can certainly agree with the last sentence, but I have some problems wrapping my head around the ones preceding. In fact it is impossible for me to consider a painter more creative than a photographer. Does that include a painter who looks at the real world and interprets it? Does it include the photographer who profoundly alters the images into abstraction? Aren’t we all interpreting our world one way or another? In fact, no artist starts the day’s creation tabula rasa. Isn’t there a world of cultural assumptions in the piano we write the sonata for? In the sine wave generators and synthesis algorithms electronic composers use?

I think Dennis Bathory-Kitsz gets it right when he says:

Despite a tradition that now feels like it, there’s no absolute ownership of the results of mental effort (except, perhaps, for those encased in the brain that forgets and dies). In fact, most of that effort draws from the ideas of others and mashes them up, whether it’s harmonies and melodic progressions or sound samples…The creativity of art is about reframing extant ideas, ideas from the society which raised and nurtured us, and protecting their manifestation is a courtesy. One way or another, those manifestations return to the society that is their true source.

Richard writes kindly about my sample-based work, for which I am grateful. It seems that I get a pass when compared to John Oswald—I’m smiling thinking about those TV commercials in the ’50s and ’60s, comparing “New Improved Tide” with “Brand X”—but whether one likes Composer A and dislikes Composer B doesn’t say anything about the underlying aesthetic. Richard, don’t you tacitly admit as much when you acknowledge there is a lot of bad electronic music out in the world, yet you obviously believe in the medium itself? By the way, I love Oswald’s work, especially his seminal Plunderphonics CD, yet I personally never “got” Grayfolded. And I have to say that as far as electronic music goes, at the risk of seeming to be log-rolling here (I assure you I am definitely not), Richard Lainhardt has composed some of the most beautiful electronic music on earth, and those of you who are not familiar with CDs like Staring at the Moon or Ten Thousand Shades of Blue—get thee to an iTunes Music Store!

Richard, you’re obviously invited to jump in and rebut my points above, as are all of you out there. I’m looking forward to hearing from everyone, as always. By the way, I had previously hinted that I would be posting some cool videos from Thailand as part of this column. I’ve got them right here, but some quality and uploading issues are preventing me from getting them on the web immediately. I’ll try to get them up ASAP, either as a comment to this column or as part of next week’s. Until then…

NewMusicBox provides a space for those engaged with new music to communicate their experiences and ideas in their own words. Articles and commentary posted here reflect the viewpoints of their individual authors; their appearance on NewMusicBox does not imply endorsement by New Music USA.

38 thoughts on “The Column Sampling Sampling Column

  1. philmusic

    “…and focus on the ethical and aesthetic.”

    I have no problem with art. I do have a problem with the implicit redistribution of wealth. Oh yes-serious money is involved here. Content has value.

    Where does the money go? Where will the money go?

    Phil Fried

  2. Chris Becker

    Phil – Honestly, that was my reaction to this new column as well.

    I will point out that the Jesus getting hit by a bus video that Lessig shows and frames as an example of what “our kids” are doing with their free time looks to me like a reel made by someone looking to score some kind of paying gig in the entertainment industry. The quality of the film, the editing, the sound syncing…Lessig is showing this saying its one thing when it most definitely is something else altogether. It’s a calling card, a resume…from someone looking to get paid for their talent. Hmm.

  3. rlainhart

    I will point out that the Jesus getting hit by a bus video that Lessig shows and frames as an example of what “our kids” are doing with their free time looks to me like a reel made by someone looking to score some kind of paying gig in the entertainment industry.

    Not only that, but it’s a direct knock-off (or rip-off) of this animation from 1999:

    Alien Song

  4. William Osborne

    I disagree that serious money is involved. Only the tiniest fraction of contemporary classical composers make very much money with their art, and almost all of even those few still have to teach to stay afloat. The false premise that serious money is involved confuses the issue, especially concerning our field and income from intellectual property.

    It also confuses the issue to equate the problems being addressed with people merely trying to gain attention with a video so that they can get a paying job. There are about 60,000 videos being uploaded to You Tube every day! This is deeply affecting the way music is being created and consumed. Even a You Tube search with a key word like “trombone” brings up over 14,000 entries.

    Hundreds of thousands of You Tube videos are excerpts from commercially produced movies and television shows – and in apparent violation of copyright law. And tens of thousands are re-workings of commonly known cultural images of our time. These developments will have enormous implications for the creation of art and the evolution of copyright law. It is interesting to observe how oblivious so many composers are to these developments and what they mean for the future of our field.

    William Osborne

  5. Chris Becker

    William, many composers (including myself and my friends who don’t read NMBx) of whatever kind of music you define as serious, new music, contemporary classical etc work in fields where serious income arrives as a result of creating music for film and television as well as for projects in the so-called “big label” and independent label industry. So my concerns regarding money and copyright law are valid and based on real world experience. My concerns are not based on an abstraction. They come from some time spent in an industry where increasingly it is getting harder and harder to get paid what you are worth composing music for the concert hall, television or for your local church.

    But who are you to say that $200, $2,000 or $20,000 isn’t “serious money” to a composer? Or that the repercussions of the current copyright law debates don’t effect a classical composer?

    Second, I brought up the video as it was presented by Lessig as an example of what “our kids” are doing with the technology that is out there. He presented the video as the works of a benign hobbyist. I stated it seemed to be of a quality of production that your average kid in the suburbs couldn’t pull off and in fact looked like a “reel” by someone trying to score some work in the entertainment industry. So Lessig is misrepresenting in this portion of his presentation. And I’m not sure if his audience even caught this as they were all too busy laughing at “Jesus” getting hit by a bus.

    Third, composers – at least the many I know and work with – are not “oblivious” to these issues (or the statistical data you enjoy throwing into your posts). They just don’t read NewMusicBox or spend an inordinate amount of time (like myself and definitely you) posting their thoughts on a blog. I’m sure you’re basing your final thought in your post on your own experience with composers. My experience then is significantly different.

  6. William Osborne

    Chris, before I can believe that a significant number of contemporary classical composers are making good incomes from their art (say even amounts as small as $20,000 a year) I would need to see some hard documentation.

    I think Lessig is correct when he says that many young people are now making surprisingly high quality films – in fact, just as good as the Jesus video and better in conception and content. A while back on You Tube, someone presented a five minute 3D film created for his Masters thesis which received over 3 million viewings. As another example, you could checkout some of the video on my website, such as in my work “Music for the End of Time.” Questions of aesthetics aside, the videographic quality in terms of technique and complexity is first class, and was done on nothing more than a laptop.

    So I think Lessig is correct for the most part. Over the last ten years, powerful techniques for the creation of media art have evolved that have become accessible to most people. And second, we now have new and very powerful ways of collecting materials and distributing our work via the web and in ways that are challenging our current copyright laws. I think many composers are still not fully cognizant of how this is changing our field. And some of the comments here seem to confirm that view.

    And sorry about my frequent posts that annoy you, but that is sometimes what discussion is all about.

    William Osborne

  7. philmusic

    Imagine my surprise to find that copy writes and their financial implications are “only” the concern of those:

    “… the tiniest fraction of contemporary classical composers [who] make very much money with their art, ..”

    I guess the rest of the media world (including those “other” composers) don’t count.

    By the way is “you tube” a charity or a non-profit?

    Phil Fried

  8. Chris Becker

    “Over the last ten years, powerful techniques for the creation of media art have evolved that have become accessible to most people. And second, we now have new and very powerful ways of collecting materials and distributing our work via the web and in ways that are challenging our current copyright laws. I think many composers are still not fully cognizant of how this is changing our field.”

    William, I realize that you and I are describing in our respective posts two (of many) different demographics that fall under the umbrella term “composers.”

    I disagree that this thread’s comments point to a lack of knowledge about the Internet and copyright law. Each poster is coming at this issue from a different view point – and some of the folks aren’t necessarily jumping on the issues you yourself are raising. That doesn’t mean they are “oblivious.” It’s a blog – people are going to keep it short and they may just not want to dive into some of the discussion you are trying to provoke.

  9. Herb Levy

    From the point of view of professional artists, there are obviously many aspects of Lessig’s presentation that are problematic if not downright condescending. He constantly talks about “the kids” who are doing this work & doesn’t seem to be aware of the long history of the re-use of earlier art by people some of whom are probably older than Lessig is. & Lessig’s examples are only clever and not very aesthetically sophisticated. There are other problems, too, but note that he’s not talking to artists about their work; this is not a talk about contemporary fine art. Lessig is talking to a general audience about problems with the current structure of copyright laws and suggesting ways in which it could be changed to enable more people to do more kinds of creative work, including things that are already being done, without fall afoul of legal issues that shouldn’t apply.

    While his presentation uses works with limited aesthetic appeal, as a rhetorical move, Lessig’s approach here is more likely to find sympathetic ears that might be willing and motivated to contact their legislative representatives about opening up the process in very good ways than if he were to talk about the history of serious composers who’ve been creatively recycling earlier artworks for years. As hard as it may be for us to admit here, saying “we don’t want to turn our kids into criminals” is just going to be more compelling to a lot more people than saying “we don’t want to turn serious composers whose work is heard by hundreds of people every year into criminals”.

    The people who control the rights to hugely popular cultural entities from Mickey Mouse to the song “Happy Birthday” have successfully lobbied for years to extend copyrights for longer and longer periods. They’re middlemen, not creators, looking to extend their ability to make money by controlling the rights to the works they own. They’ve positioned their arguments based on licensing extremely commercial uses of extremely commercial source material such as hit songs using samples from other hit songs. They don’t want to have to distinguish between usage that is aimed at selling to millions of consumers worldwide and usage that is aimed at making an artistic creation that, for better or worse, is likely to be experienced by more limited audiences. Lessig believes that this has limited creativity and the distribution of creative works.

    Chris, it’s great to hear that institutions like the Lomax archive understand the diverse economic potentials of different uses and users of their material. The entities in control of recordings by, say, Britney Spears (since William’s already brought her up, not that anyone reading this would deign to use such mundane source material in a serious composition) are not so enlightened. They don’t recognize these distinctions and want to treat any potential use of their material as if it were aimed at being an international pop hit and will charge accordingly. Lessig is speaking to the possibility of systematizing the openness of the Lomax archive so that the people who control the rights to other more popular material might have a framework for making similar distinctions between the commerical potential between various end users.

    The issue isn’t about whether anyone finds, say, John Oswald’s work based on the music of others to be as aesthetically pleasing as, say, Carl Stone’s work based on the music of others. It’s about whether artists who make works that are not going to be distributed within the mass media machinery should be financially hampered by rules and licensing fees that don’t acknowledge the difference in scale between the realms of “pop” music and “art” music.

    As it is now, the law focuses on issues that serve owners of hyper-commercial products with industrial-strength commercial potential far more than it does any kind of creative producer, let alone composers of “contemporary classical” music. To get any kind of more nuanced laws will take re-positioning and re-framing of the issues so that legislators can have some kind of handle on why to make the changes.

    As corny and aesthetically ignorant as Lessig’s presentation may be, he does a very good job of presenting case for broadening the options for licensing rights to allow more possibilities of creative re-use of previously made materials.

  10. William Osborne

    I understand what you are saying, Chris, and I appreciate your concerns with copyright protections. Obviously we don’t want people stealing or altering our work without permission, but I don’t think that is what legal scholars like Lessig or Katyal are addressing – nor Carl.

    The concern of Lessig and Katyal is not to weaken copyright law, but to clearly define our rights when using cultural images and symbols in our work. To what extent can we practice forms of semiotic commentary in a world of corporate and cultural symbols? When does semiotic commentary become semiotic disobedience? When is semiotic disobedience ethically, morally, and legally justified?

    Think of the examples I mentioned in Carl’s earlier thread, Dow Chemical, Nike, Barbie, and Brittany, and the way they protect their logos, images, symbols, etc. Often important truths are buried for purely financial reasons. As Katyal puts it, “…the act of propertization, by its very act of exclusion, actually and unwittingly perpetuates prohibited speech.” The value of symbolic dissent is undermined. With today’s copyright laws, for example, much of Dante’s Divine Comedy would have never been written. Too many of the images, names, and personas would have been owned by corporations who would much prefer that certain things not be talked about.

    In short, I think some of the participants here fail to recognize the meaningful differences between piracy and symbolic dissent, between thievery and social commentary, between mindlessly breaking the law and meaningful semiotic disobedience. In the digital world, we need new legal theories to better define these boundaries which have become far more fluid. It’s not some sort of banal standpoint that our works can be pirated.

    William Osborne

  11. Herb Levy

    Carl, I fully understand your response to Grayfolded: to our unschooled ears, this work can sound like a very long version of Dark Star with a few moments that might be weirder than the Dead would probably get on any given night. Most of Oswald’s shorter Plunderphonic works function as etudes exaggerating a particular characteristic of a particular well-known work in a way that’s obvious to even most casual listeners. Grayfolded is quite different; it is, apparently, built on very complex structural principles beyond the ken of most casual listeners. Perhaps beyond the ken of many experienced listeners of contemporary classical music and/or electronic music.

    However, for Deadheads who are conversant with the variety of live recordings available by the band, Grayfolded offers incredible depth. I learned of this years ago, through talking about the recording with several Deadheads who know the Dead’s recorded repertoire extremely well. I was amazed to learn about the level of inter-textual references in Grayfolded. These guys discussed things like (& this was so long ago that I can only give a very general approximation of the level of connoisseurship here, but they were very specific about the references they heard): the layering of various acoustic spaces of historic concerts in various venues, the juxtaposition of Jerry Garcia’s developing sound and style from several decades, the opportunity to hear Pigpen performing in specific performance situations that occurred long after his death, etc, etc.

    In some ways, then, Grayfolded may have the same kind of subtext that musicologists have found in, say, the music of Alban Berg, but it’s based entirely on the recorded artifacts rather than notational references. Or not. But either way, for the right audience, the work has far more going on than it might seem.

  12. philmusic

    “..It’s about whether artists who make works that are not going to be distributed within the mass media machinery..”

    So the internet is not part of the “mass media machinery?”

    Phil Fried

  13. Chris Becker

    …that’s really REALLY cool. I’m assuming Oswald worked closely with the surviving members of the Dead on this project?

  14. Chris Becker

    “It’s about whether artists who make works that are not going to be distributed within the mass media machinery should be financially hampered by rules and licensing fees that don’t acknowledge the difference in scale between the realms of “pop” music and “art” music.”

    Herb, I just think the one sampling the work should pay SOMETHING and/ or coordinate an agreement where the original creator will be compensated if in the future (and this can happen) someone else (like ESPN, MTV for example) wants to license out this new creation.

    And I’ve worked with non-Lomax lawyers for sampling permissions – and it can be headache (calls aren’t returned, emails go unanswered) but sometimes, it is surprisingly straight forward if you know what you need and can talk in their language.

  15. Herb Levy

    “..It’s about whether artists who make works that are not going to be distributed within the mass media machinery..”

    So the internet is not part of the “mass media machinery?”

    The internet as a whole is not a subset of what I’m calling the “mass media machinery”, though parts of each overlaps with the other.

    The fact that millions of of people have access to something called the internet doesn’t mean that everything on the internet is purposely designed to reach the largest audience possible.

    I’m talking about media products that are considered failures if they don’t reach audiences of millions of people a week. Most sites on the internet don’t reach a thousand people a month.

  16. Chris Becker

    Re: the “long history of re-use” – I recommend (again) Michael Veal’s wonderful book
    for some much needed data regarding the roots of the remix culture. Herb is right, it’s been around awhile (along with all of these issues we’re considering in this thread…)

    Oswald’s piece I’m sure owes a debt to the pioneers of dub composition. I realize that the Dead probably provided him with bootlegged live recordings of their own performances to reconfigure into this Greyfolded piece…

  17. William Osborne

    Thank you, Herb, for the very interesting posts. Regarding Brittany, you suggest that no one “…reading this would deign to use such mundane source material in a serious composition…”

    There are many reasons source material is quoted and its artistic validity is only one of many possible rationales. Perhaps the most common is that the source material has some sort of symbolic significance — or semiotic meaning. Due to Ms. Spears mass appeal, her work might fit in that category. She might serve, for example, as a symbol of the negative side of commercialized culture.

    Carl asked that we consider Richard’s view that artists who quote (or appropriate and alter) are less creative than those who don’t. To ponder that idea, we might consider the various reasons postmodern artists appropriate materials. Do those reasons reflect a lack of creativity?

    William Osborne

  18. Chris Becker

    “Carl asked that we consider Richard’s view that artists who quote (or appropriate and alter) are less creative than those who don’t. To ponder that idea, we might consider the various reasons postmodern artists appropriate materials.”

    Why? Cultures outside of the U.S. have expressed themselves with “quotation” and “remixing” for years before any U.S. born postmodern artist loaded up a sampler. If we’re really going to dig into this topic we gotta go way back before John Oswald (and outside the shores of the U.S.).

    Veal’s book addresses this with much more eloquence than I ever will, but this notion of quotation is a very very old and not exclusively European idea. And quotation in Dub, blues and jazz (all very one dimensional terms) has resonance and meaning that is speaks to a depth of feeling and intellect that still hasn’t been fully acknowledged by many in the postmodern classical composition community.

  19. William Osborne

    It’s quite true quotation has a long history. One of my earliest exposures to the idea was through George Crumb – who, by the way, ran into at least one problem with getting permission. He spoke of Mahler being a precedent and model for his understanding of the concept of quotation. This might also refer back to the point someone (Denis?) made in the other thread about nothing being entirely original, but a continuum of cultural ideas. It might be, however, that the concept of quotation has a stronger emphasis in postmodernism than in earlier styles, hence the renewed debate about its use.

    William Osborne

  20. Dean Rosenthal

    When I composed the “Portraits” series in 1998, I didn’t hesitate to cop from recordings extant. Feldman’s lectures to CalArts students, John Cage’s Rotten Tomatoes recordings, anything. But I credit every one of them for their success.

    Mort Subotnick, who commissioned the pieces, seemed to feel that quoting was ok – I just look at this as a form of thema et variation. But with John’s music there is a distinct elevation of expression in that plundering that inspired an even deeper touch in the culture. And so I couldn’t possibly imagine a hierarchy of art outside of serious music, Michael Jackson be damned…

  21. carlstone

    You folks rock! You don’t need me to keep this thread going, that’s for sure.

    Let me just jump in with a couple of arbitrary points.

    William – Herb was making a sly joke when he wrote “not that anyone reading this would deign to use such mundane source material in a serious composition”. He knows the music of some of the people on this board all too well. You are right that there are many reasons source material is quoted and its artistic validity is only one of many possible rationales. In fact, when people have asked me my criteria for selecting music for quotation as a starting point I usual answer “I quote the music I either love or despise.”

    As for historical precedents, Chris’ points about appropriation in so-called non-western cultures is really interesting and worthy of further research. In articles I’ve written in the past I have confined myself to the precedents in classical music. Make no mistake, they go back hundreds of years.

    I think I’ll put up a .pdf of an article I wrote for Arts International ‘s magazine a few years ago, which lays out some arguments that are germane to this discussion. It begins with a mock-up of a lawsuit filed in District Court, with Plaintiff Georg Frideric Handel (d/b/a G. F. Handel Gesellschaft ) suing Brahams for unauthorized use, copyright infringement, and declaratory relief. Stand by, I’ll be back with a URL shortly.

  22. Herb Levy

    Chris, Oswald was commissioned by the Grateful Dead to make Grayfolded in the early 1990s and he had full access to every available recording of the band. For the Grateful Dead, that means a lot of recordings, because they encouraged their fans to record shows and distribute the tapes among themselves. The final version of Grayfolded is a little more than an an hour and forty-five minutes long and according to the edit map of the piece includes more than 100 excerpts of live performances from the late 1960s to the mid-1990s. It was the easy availability of these concert recordings that made it possible for the Deadheads I talked with to recognize details and understand the implications of juxtapositions that Oswald made in the work.

    Since the band stopped touring, there’ve been some changes in how they feel about distribution of the recordings, though many recordings are still available online from officially-sanctioned sites. The Dead understood, correctly I think, how the free availability of these recordings worked as promotion for their concerts, which is where they made most of their money.

    This ties in with some of Lessig’s ideas about the use value of varied kinds of licensing and also those of Chris Anderson, editor of Wired magazine and author of the Long Tail. Anderson’s next book will apparently be about business models that generate revenue by giving things away for free.

  23. Herb Levy

    I just think the one sampling the work should pay SOMETHING and/ or coordinate an agreement where the original creator will be compensated if in the future (and this can happen) someone else (like ESPN, MTV for example) wants to license out this new creation.

    Chris, I’m not saying that composers shouldn’t be paid for use of their work, and neither is Lessig. Look at the options offered under Creative Commons, which is the project that Lessig makes a point of not, exactly, discussing in his TED talk, because those aren’t supposed to be used for promoting products or projects. Creative Commons provides models for several different kinds of licensing that could have saved some of the headaches you mentioned earlier

    When the only licensing model for royalties is structured around the needs of copyright holders who are trying to sell copies of pop products to millions of people worldwide, that model may not be the most useful one for copyright holders who more commonly sell less than 5-10,000 copies of a product and/or will perform the work for audiences of less than a couple of hundred people at most a few times a month. Think how much easier it might have been for you to just point to a commonly recognized option when you were dealing with the non-Lomax licensors for your projects.

    Most of the copyright holders of products designed for sale to huge audiences via the mass media, don’t understand the economy of scale necessary for copyright holders who actually make money selling a couple of thousand copies of something. Their business model is so stupid that they can lose money, and lots of it, on albums that sell as many as 3-500,000 copies. Their default valuation for licensing samples usually assumes that the cost of a licenseshould be based on their scale of value, that is, selling millions of copies, rather than on the likely sales of an avant garde, or at least non-pop music product.

    This is why a hypothetical composer who may be making an extremely creative use of a hypothetical audio sample of, oh, (since it’s no longer quite as much fun to evoke Britney Spears) this time, let’s say Justin Timberlake, may, in some cases, be far better off not trying to get a license for using the sample and hoping to not show up on the radar of anyone remotely close the owners of the copyright for the recording rather than risk either being billed for a misperceived potential sales figure that’s off by a few powers of ten or having to cease and desist presenting the work.

    I keep referring to business entities rather than composers as the copyright holder with an interest in controlling the licensing of a recording. There are (at least) two different kinds of copyrights for music in the modern age. One is the standard copyright, signified by a “C” in a circle (c), covers performances and mechanical reproductions for a composition and that is usually, though not always, held by the composer. Technically, no one can perform or record a work registered under (c) copyright without some kind of license from the copyright holder. The other kind of copyright is on the actual finished recording of a composition as released for commercial use. This is signified by a “P” in a circle (p), covering what is actually for sale as a recording. Again, no one can reproduce a recording (rather than the score) without some kind of license from the copyright holder.

    In most cases the company who has released a particular recording of a musical work holds the (p) copyright on the audio recording, regardless of who owns the (c) copyright. Chris Becker has found that the Lomax Foundation is particularly enlightened in their how they deal with royalties and performer/composers of obscure works recorded long ago. That’s really great, but this is not very common.

    Here’s a recent instance where the distinction between (c) copyright and (p) copyright caused a big problem for a composer. A couple of years ago, the composer/performer James Newton lost a lawsuit against the Beastie Boys record company for the use of several notes taken from an album Newton had released on ECM Records years ago. Newton claimed that these few notes were an integral part of his written composition and the performance used was obviously his playing (the phrase uses a particular breathy kind of multiphonic playing that’s part of Newton’s signature style). He lost his suit because 1) the excerpt of the composition, 2-3 notes, was not substantial enough to be considered an infringement of Newton’s (c) copyright and 2) the Beastie Boys record company had paid a licensing fee to the holder of the (p) copyright for the recording, so they were not at fault. Because ECM, and not Newton, owned the (p) copyright for the recording, they had negotiated the licensing fee with the Beastie Boys’ record company and didn’t see any ethical requirement (& didn’t have any contractual one either) to share this fee with Newton. It is not uncommon for even very small labels to retain ownership of the (p) copyright for recordings they release as part of their contract with the artists involved.

    It may be useful to note here that very, very few sampling cases have been settled in court, so there’s very little established case law in this area. Because the owners of (p) copyright tend to be in the same business and are more interested in quid pro quo trading of licensing rights for projects they control (usually pop songs that include samples from music controlled by other companies) than in setting legal precedents that might offer even protection for creative uses of previously recorded materials. Because of this, the few precedents that have been established, are quite mixed in terms of how they treat the rights of actual composers and performers working in fields with likely audiences of a few thousand customers/audience members.

  24. William Osborne

    I think Carl’s point about some kinds of tape music representing a historical continuum with today’s methods of quotation and appropriation are very important. Chris’ comments about Dub Music and Re-Mixing amplify the same point.

    I wonder though, if the techniques of harddisk recording represent a significant qualitative change from the old methods of tape-splicing composition. Tape composers usually had only 2 or 4 tracks to work with, while harddisk recording software typically offers around a 1000 tracks. One can splice digital music with perfect accuracy down to thousands of second. But there are also techniques that have no comparison with tape music, like the independence of time-stretching and pitch shifting, the capacity to edit perfect cross-fades between tracks, and the thousands of available VST plug-ins for digitally altering musical objects. One also has an almost limitless library of sounds available on CDs and on the web which can be used with no loss of quality, and added to mixes in a matter of minutes. And all of this is available in very high quality at a minimal price, as compared to the hundreds of thousands that old analog studios used to cost. At what point do the advances add-up to something that has no real comparison to the past? Are we comparing rockets to horses?

    We see an even more astounding qualitative leap in video editing techniques. Methods like face morphing are simply not possible using film. And until only recently, video studios with the capacities the average PC now has would have been prohibitively expensive. When so much expressive power is put into the hands of so many people, does it at some point become a phenomena without historical comparison?

    These qualitative differences will only increase as technology continues to evolve. I was just reading about holographic laserdiscs that can record and read several layers of information at once. They look below the surface of the disk to see multiple (3D) layers instead of the single (2D) layer of the disks we now have. The expected reading speeds are in the area of one terabyte per second. (That would, for example, load the OSX or XP operating systems in less than a tenth of a second, assuming processors continue to evolve that could handle such flows of data.) Maxell already has prototypes.

    Traffic laws had to evolve from the time of Model Ts to today’s sleek cars on Interstate Highways. Copyright laws, and our concepts of intellectual property, will also need to evolve as the ability to expressively manipulate and widely distribute cultural symbols become a reality for everyone in what might be termed the Semiotic Democracy of Cyberbia.

    William Osborne

  25. Herb Levy

    Re: from horses to rockets
    But, William, note that each time there’s been a new technology for recording (cassettes, videotapes, hard disks, etc), the industries who control the copyrights fight the big fight to disallow as much fair use for consumers and artists.

    Rather than using the concept of adding a small use fee to the cost of cassettes as a precedent for how to deal with the potential for copying product they own the rights to when newer technologies came in, legislators have been lobbied hard about how the new technology is more of a threat and must be handled more strictly. & this has usually worked so that the laws about digital copies are much more strict than those for cassette or videotapes.

  26. Chris Becker

    “As for historical precedents, Chris’ points about appropriation in so-called non-western cultures is really interesting and worthy of further research.”

    Thanks, Carl. Veal’s book IS the research. There’s too much good stuff in the book to quote here on this thread just…it came out in 2007 and it has profoundly inspired my recent music.

  27. dalgas

    Just to chime in with Herb: Copyright got where it is today because of our music-business being built around the idea of needing a publisher/distributor/marketer middleman to handle everything between the creator and consumer of a piece of music.

    Ostensibly in order to do their job, control of the work is signed away by the creator to the middleman, who provides all their “helpful” services, and takes their cut on what they collect before passing the remainder back to the creator. In practice though, the middleman has evolved into the main-man, the place where 99% of the copyright applies, and where 99% of the money stays. They do, say, control.

    They don’t really care one bit whether the creator profits at all from his or her work; they *do* care that *they* profit from that work, as long as is humanly possible. Copyright protection used to end 28 years after the creation of the work; now it’s anywhere from 70 to 95 years after the creator dies! Any sense of copyright’s original mission to stimulate creative interchange and growth has almost completely been stifled or jettisoned. And none of that extension is really for the benefit of the artist or heirs; it’s for the *corporations* holding those copyrights to lock down their “property” — in perpetuity, if they finally get their way. With the focus of copyright shifted almost entirely to corporate culture, most current copyright practice and law becomes absurd or unrealistic when scaled back to just the creator themself.

    Steve Layton

  28. William Osborne

    It is exactly the grotesqueness of our current copyright laws that are causing them to collapse. People simply don’t believe in them. Given the plutocratic nature of our society, it is unlikely that even with work like Lessig’s and Katyal’s, that new laws will be much better. As Katyal puts it, there will still be much room for “semiotic disobedience.”

    I noticed that she sent notices about her work to a lot of artists, arts journalists, and bloggers asking for feedback. Since she lives in NYC, and is a law professor at Fordham, perhaps someone at NMB might like to interview her for a “Spotlight” feature. It is not everyday that distinguished lawyers takes such a deeply informed interest in our work and are looking for contact.

    Sonia comes from an interesting family. Her brother, Neal Kumar Katyal is the John Carroll Professor of Law at Georgetown University Law School and was the lead counsel in the Supreme Court case Hamdan v. Rumsfeld, which held that military commissions set up by the Bush administration to try detainees at Guantanamo Bay “violate both the UCMJ and the four Geneva Conventions.”

    Please consider contacting her.

    William Osborne

  29. rtanaka

    The copyright office makes a distinction between ideas and the product itself, with the latter deserving protection and the former not. In order to be eligible for copyright the item has to be in “fixed form” in order for it to be viable to be protected. On the other hand, in the digital age this is exactly what allows for infringements of copyright, since if it can be “captured” then it can be distributed. I think to some extent the laws are currently undermining itself.

    Given current situations in technology I don’t really see too much means of enforcing copyright laws too much…it’s much too easy to do and much too easy to circumvent any sort of protections that people might contrive within the digital realm. As the younger, more tech-saavy generation starts to take over, they will just get better at doing it.

    One idea that might be worth looking into comes from the private sector — the idea of lumping royalty costs at the beginning of the project. So sometimes studio composers will charge clients several thousands of dollars for even a 15-second jingle…some people are little bit thrown off by this amount but I think it’s fair considering that by doing so they release the rights for usage into the hands of the client. (You have to be able to “let go” of your control over your work though, which may not be acceptable to some.) There are examples of musicians not really reading their contract very closely and doing this by accident, but being able to assess the potential market value for your own work I think is fairly important if you’re planning to make any sort of money off of it.

    Digital mediums are, in it of itself, a product of infinite supply. So as it gets more widely distributed, its worth naturally diminishes. I’m sure some of us have gotten comments about making a “one hit wonder” but those days of making royalties off your work (if it really existed to begin with) are largely over. Maybe people’s sensibilities might change over time but fixed products itself don’t tend to appreciate in value, because that is the nature of art that’s “publishable”. (As opposed to object-oriented art, like a painting, for example.)

    I haven’t made too much money off my music yet, but I’ve managed scramble a few bucks doing project to project, gig to gig. I’m hoping that eventually I’ll be able to live off the earnings of doing such things, although it will probably take a long while. If you want to make money off of recordings I think you’re probably going to have to start putting them out on a regular basis, and account for the fact that you’ll probably suffer some losses due to piracy and illegal distribution.

    I think I’ve said this before, but I think getting paid “upfront” might be a much better way to handle financial situations for musicians — less worries, less troubles, and its less of a gamble on the part of the musician who, I think, would be more concerned about getting a fair compensation for their efforts.

  30. rtanaka

    As far as appropriation goes, you can actually reference pop culture without resorting to direct sampling. It’s not all that difficult to find “imitation” symbols — like Barbie-esque figurines, characters who “remind” you of certain public figures, and company logos that sort of look like the original but different enough so that it doesn’t infringe on copyright laws. Satirists working within the mainstream media have seem to have gotten very good at this. You can protect products, but not ideas.

    The great thing about this is that everybody knows what its referencing, even if its implicit. This gives the artist the power to make commentary without infringing on the law, and I think that this is pretty useful. And since history has a tendency to repeat itself, if the descriptions prove to be accurate then it should really be able to attain that “timeless” quality, I think.

  31. bluecee

    Wow. So many obviously learned and painstakingly researched hours sucked up into such a bogus discussion. Folks, if you need to pastiche other artists’ works into some sort of collage, then jump through the hoops and get the licenses (now THAT oughta set you onto a different path of itself.) Maybe the tedious process will persuade you to only appropriate one or two samples, instead of a dozen…or a hundred…and we don’t need to muck about with copyright law just to accomodate your project. The law that keeps getting referred to but not named in this discussion is the law of unintended consequences. Sorry ’bout the hurdles keeping you from grabbing everything that appeals to you and repackaging it as your own in the name of art, but removing those hurdles may reduce art to even more of a corporate medium: only those with good lawyers will be able to control their works, whether the audience be in the 100,000s or the dozens.

  32. William Osborne

    “Ed Chillington’s” (or “bluecee’s”?) description of the issues being discussed is ridiculously reductive. Bluecee, if you think anyone here is “pastiching other artists’ works into some sort of collage,” or “repackaging” other people’s work under “their own name,” then backup your argument with some significant examples. And perhaps direct us to a website which shows us what you yourself have accomplished. You might also consider signing your post. These things would add some authority to your assertions.

    The are four points under discussion here. First, copyright law has not held pace with technological developments and this is causing serious problems for the music business. Second, the industry’s harsh reactions to this problem have had a chilling effect on legitimate and meaningful forms of semiotic discourse. Third, these problems have highlighted the ways copyright laws favor producers over artists. And fourth, these developments have led artists to reconsider how they might protect their work, and how they might situate themselves in market economies.

    To reduce these complex problems to banal concepts of plagiarism reflect a remarkable ignorance. And as noted, this ignorance is strangely common, even in our field.

    To add another thought to the discussion, will the collapse of copyright law in the music world create a more level playing field in which the traditionally marginalized voices of “contemporary classical” might eventually be more easily heard?

    William Osborne

  33. William Osborne

    Perhaps it’s worth noting that the biggest selling CD of 2007 was by pop/classical cross-over artist Josh Groban whose Christmas album “Noel” sold 3.7 million units. His total album sales and song downloads in 2007 generated an estimated 60 million. He grossed 43.1 million with his 2007 tours. That’s pop/classical cross-over mind you. (To my ears it’s disgustingly kitch — bad voice, sentimental, bombastic accompaniments — the American Dream.)

    William Osborne

  34. rtanaka

    To add another thought to the discussion, will the collapse of copyright law in the music world create a more level playing field in which the traditionally marginalized voices of “contemporary classical” might eventually be more easily heard?

    In theory, we’re already on a level playing field in terms of exposure opportunities. Although most of us don’t have the financial backing of a large institution, at least we have equal access to an infrastructure (internet) that’s growing in prominence day by day. I mean, I was listening to a talk the other day about the founder of and they became millionaires just by selling advertisement revenues through Google Adsense and the like. Cartoonists who publicize something on their website also can make a decent living doing similar things. The content itself, though, they give away for free. It seems counter-intuitive (even in a conservative business sense) but since it has been proven to work in some cases, people’s heads are now being turned.

    Although the downside of this is that with the lack of institutional support the artist will probably need to be more self-reliant in order to survive. This means learning multiple-skill sets…not just pertaining to music, but in publishing, recording, distribution, advertising, research, booking, marketing, and making business deals. The means and methods are all there and its becoming easier and easier to do, but it really is a lot of work having to keep track of 500 things at once. Even for myself, I had to teach myself how to code, learn about tax laws, and learn about finance and business methods and such…stuff I’d never think I’d ever need while I was still going to school. But if you’re motivated enough and believe that the “long tail” actually exists for your work, then there could be potentially very lucrative modest payoffs coming your way, just by looking at past successful examples.

    I just stuck a little ad onto my website a few weeks ago and I already made $1.32! Who knows what could happen if people actually visited it regularly? I think what people seem to agree is that the most successful web-ventures are the ones that have a constant, steady stream of visitors. And in order to do that you need something that is updating constantly. But then again, for artists, this idea doesn’t seem to stray too much from having fans who come to your gigs regularly.

  35. bunnyman

    How Much?
    If a composer is making a collage work, ALA Plunderphonics, just how much are you supposed to pay to use a second of a recording? Is there a sliding scale for P. Diddy to use an entire song to rap over? Did Warhol have to pay Campbell’s? Lichtenstein have to pay DC or Marvel (or whomever)? If I pay someone to use 2 notes (like the Beastie Boys case cited above), how much more do I have to shell out when my song becomes the latest number one CD? Does ANYTHING go into the Public Domain any more? Just a few questions; I don’t have any answers, unfortunately…

  36. rtanaka

    Google is pretty good with looking up random stuff: Warhol and Cambells

    Generally speaking, nobody seems to really care until you start making money. So if its an art project that’s being showcased to a smallish audience, it’s highly unlikely that you’ll get in any trouble no matter how blatant your infringement might be. (I know some people who tend to get paranoid about this, but I think they can rest easy.) But if you’re making a hefty profit, then the parties will of course want a cut of the deal. Otherwise it’s really not worth going to court over, in most cases.

    The courts tend to use pretty vague terminologies…like there needs to be a “substantial” or “recognizable” differences and similarities between the original and new work and such. I think it’s one of those things where you just “know it when you see it”. I think in most cases the differences between plagarism and “borrowing” is pretty obvious, though. And I’m pretty sure that the artist themselves know if they put in enough “substantial” effort in making something original.

  37. William Osborne

    We discussed the changes harddisk recording techniques are making in music. Even though he does not sample sounds from other compositions, Radiohead band member, Jonny Greenwood, uses ProTools in the creation of his string orchestra work “Popcorn Superhet Receiver” in an interesting way.

    Greenwood is a violist. He began by recording himself playing every available note on the viola. Then, as the New York Times describes it, “…using Pro Tools, he configured those notes into a piece on 36 separate tracks (one for each instrumental line) and shaped the attacks, releases and dynamics of each note. Once the recording was complete, he transcribed it the old-fashioned way, using pen and paper.”

    The score sounds a bit like early Penderecki, but is truly excellent. You can listen to the score here:

    Popcorn Superhet Radio is also used extensively, and to excellent effect, for the sound track of the recent film “There Will Be Blood.”

    And speaking of problems with copyright law, I watched a free download of “There Will Be Blood” last night which is here:

    I knew there were a lot of song files on the web, but this is the first time I watched a free download of a current-release movie! ( The film is not even out yet here in Germany. You’ll have to ignore the Chinese subtitles – or whatever language they are.)

    William Osborne


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