“Free” Samples*

Slate’s Tim Wu gets irate about “sample trolls,” who make legal claims of copywright violations when hip-hop musicians use the music they legally control. What set off the Columbia law professor was a suit filed against Jay-Z by Bridgeport Music, Inc. for his alleged use of several notes originally recorded by George Clinton. Wu details how Bridgeport came to possess Clinton’s copywrights by underhanded means, which they then parlayed into a series of lawsuits demanding payment for the use of Clinton’s music as samples.

The rise of rap presented a golden opportunity for Bridgeport. After years of demanding fees, in 2001, Bridgeport launched nearly 500 counts of copyright infringement against more than 800 artists and labels. The company, suing in Nashville, Tenn., located every sample of Clinton or other owned copyrights it could find. It took the legal position that any sampling of a sound recording, no matter how minimal or unnoticeable, is still a violation of federal law. Imagine that the copyright owner of The Lord of the Rings had sued every fantasy book or magazine that dared used the words elf, orc, or troll. That gives you an idea of the magnitude of Bridgeport’s campaign.

Since 2001, Bridgeport’s shotgun approach has led to many dismissals and settlements, but also two major victories. First, in 2005, Bridgeport convinced Nashville’s federal appellate court to buy into its copyright theory. In that case, Bridgeport Music v. Dimension Films, the defendants sampled a single chord from the George Clinton tune “Get Off Your Ass and Jam,” changed the pitch, and looped the sound in the background. (The result is almost completely unrecognizable—you can listen to it here). The Sixth Circuit created a rule: that any sampling, no matter how minimal or undetectable, is a copyright infringement. Said the court in Bridgeport, “Get a license or do not sample. We do not see this as stifling creativity in any significant way.”

(Emphasis added by me.)

Hip-hop is one genre of music I know the least about, but of course I’m aware of hit rap songs based on signature riffs by artists like Stevie Wonder, Rick James, Steely Dan, Ray Charles and many others. I always assumed these songwriters, or whoever owns the rights, were paid. Much of what makes the songs appealling are the sampled sounds, so payment seems fair to me.

This aspect of the music is also why I don’t bother with much hip-hop.  Create your own cool riffs, I say.  I like “Super Freak” and “Black Cow” in their original form — the rappers add nothing nearly as special as what they started with.

What gives someone else the right to appropriate elements so central to these songs and then call it original work? Even if you pay for it, sampling a well-known riff says to me you don’t have any ideas of your own. How hard would it be for me to sample, say, the opening of the Four Tops’ “Reach Out,” put it on a tape loop, and then come up with some rhyming doggerel about my troubles and woes to put on top of it?  I could do that tonight.  But I could sit in a studio for five years and never come up with anything a brilliant as that urgent, ethereal opening mix of flutes, handclaps and rhythm and bass guitars.

What Wu describes makes even less sense to me. Why would a hip-hop artist go to the trouble of snipping off a sample from another record — and then burying it in the new song in an “unrecognizable,” “unnoticeable” way? And if it’s so unnoticeable, how did Bridgeport come across it?

Wu tries to explain the culture and ethics of sampling this way:

In the big picture, copyright must continually work to ensure that the basic building blocks of creativity are available to artists and creators, especially as new forms of art emerge. We already know what this means for novelists: freedom to use facts, borrow stock characters (like Falstaff) and standard plots (the murder mystery). For filmmakers, it means the freedom to copy standard shots (like The Magnificent Seven‘s “establishment shot”). For rap music, it means the freedom to sample. Rap’s constant reinvention and remixing of old sounds makes it what it is; now is the time for the copyright system to get that. Vibrant cultures borrow, remix and recast. Static cultures die.

I don’t buy these comparisons. Yes, in music there are certain patterns, like the blues, that are used frequently. If someone tried to copywright the I-IV-V progression, it would be an outrage. The lonesome pedal steel guitar in country music is a cliche of the genre, which no one performer owns.  However, a distinctive pattern of notes performed and recorded by particular musicians, which is then re-recorded in its original form and then mixed into another song is not a “building block of creativity” — it’s plagiarism. They’re not “reinventing…old sounds,” any more than I’m “reinventing” your car if I steal it and give it a paint job.

There’s no comparison to the format of a murder mystery, or the creation of a character reminiscent of another character. It’s more like taking three pages out of “The Big Sleep” and putting it into your new novel, and saying you wrote it. Yes, filmmakers can “copy standard shots,” in the sense of using a similar composition, but they can’t edit in footage from another movie without paying for it. My friends Todd and Robin Mason are finalizing a documentary right now, and must pay for the rights to all the old bits of film footage they have woven into their film. If Wu’s opinion is they can just take the old footage and claim it as “the basic building blocks of creativity,” then that would shave tens of thousands of dollars of their budget! I’ll tell them to give Wu a call.

This is not a defense of Bridgeport. The owner of that company might have come into possession of Clinton’s music through illicit means, as Wu’s article explains. But let’s say he didn’t. Let’s say Clinton still owned all his original copywrights. Would Wu hold it against him if he demanded payment for the samples from his recordings? But the logic of Wu’s position would hold that Clinton himself would be just as much of a cultural enemy — just as much of an exploitive litigant — as Bridgeport.

Wu’s side of the argument rests on making a distinction that strikes me as hazy — whether the sample was “recognizable” or not. Well, didn’t the owners of Clinton’s copywrights recognize it? Then it’s not “unrecognizable.” If they could hear it, so could any other George Clinton fan.

*Edited 11/18/06

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How to Turn a Cruddy Movie Into a PR Opportunity, the Steely Dan Way

steelydan.jpgWendy McCaw, Mayor Villaraigosa, you may now bow down to your PR masters: The venerable bards of Henry Mancini-esque rock, Steely Dan. All morning, I’ve been trying to get on the Steely Dan website to read the now-famous “Open Letter to the Great Comic Actor, Luke Wilson,” and couldn’t get through for all the traffic. This goof has gotten the Dan more mainstream publicity than anything they’ve done since the band’s inception in 1972.

Perfect timing: Steely Dan is on a summer tour with Michael McDonald, and without a new CD to generate reviews and other clips.

The letter’s conceit is that Luke’s brother Owen Wilson has “gotten himself mixed up with some pretty bad Hollywood schlockmeisters,” who, they say, stole the idea for the flop “You, Me and Dupree” from Steely Dan’s song about a lustful loser, “Cousin Dupree,” “and then,” according to the letter, “when it came time to change the character’s name or whatever so people wouldn’t know what a rip the whole thing was, THEY DIDN’T EVEN BOTHER TO THINK UP A NEW FUCKING NAME FOR THE GUY.”

The letter is hard to quote because it’s a graphic object that you can’t copy and paste from (which will force everyone to go onto the group’s website and read about the tour, another good PR maneuver!). What makes it priceless is how they adopt the shambling, stoned blather that Owen Wilson has foisted upon the American public through innumerable talk-show appearances, and that writers for Owen Wilson’s movies have now learned to ape.

But underneath the sunny, “it’s all good” patter lurks the trademark Steely Dan menace their fans have grown to know and love through songs like “Daddy Don’t Live in That New York City No More,” and “Gaslighting Abbie”:

Anyway, they got your little brother on the hook for this summer stinkbomb of a movie — I mean, check the reviews — and he’s using all his heaviest Owen C. licks to try and get this pathetic way-unfunny debacle off the ground and, in the end, no matter what he does or what happens at the box office, in the short run, he’s gonna go down hard for selling out like this and for trashing the work of some pretty heavy artists like us in the process. You know yourself, man, that what goes around comes around — that’s like the first fucking thing you learn, right? Instant karma is a fact, Jack. So your spaced-out little bro is generating some MAJOR harsh-ass karma for himself by fucking us over like this — I mean, we’re like totally out in the cold on this one — no ASCAP, no soundtrack, no consultant gig…. No phone call, no muffin basket, no flowers, nothing.

luke-and-owen.jpgThe threats mount until finally they offer Luke an opportunity to help Owen avoid tangling with “this guy who works for us sometimes…you know what a Navy Seal is, right? Well, this dude’s like that, only he’s Russian”: Send him to appear at Steely Dan’s Irvine concert to apologize, “and then he can get back to his life and his family and his beautiful moviestar-style pad or whatever, none the worse for wear….” Oh, they’ll throw in some Steely Dan “merch” and “if he wants to sit in” he can “bring his bongos.”

Hilarious, and it did the job. America now knows that Steely Dan is on tour. The Irvine show was actually last week, and I didn’t hear whether Owen Wilson showed up or not. In fact, I haven’t heard much of anything from the Owe-ster in a couple weeks…

Is Copying Writing? Sometimes.

I'm frustrated to read that high school teachers are assigning fewer term papers due to the prevalence of on-line plagiarism. I understand the problem: Kids cut and paste chunks of the Internet into their assignments and claim the work is their own.

It's ethically dubious to be sure. But as long as you don't plagiarize an entire work, doesn't copy/paste assembly at least serve the minimal purpose of showing a student what good writing is?

Read the biographies of our greatest writers. They all started by copying or mimicking the works of their heroes, sometimes word-for-word. They wanted to see what made their sentences sing, what made their thoughts cohere, where the rhythm of their prose came from.

Originality is an overrated attribute in students. It's sentimental, e.g. "out of the mouths of babes." Not every child is born with original thoughts or ways of expressing them. Students gain knowledge by experiencing the original thoughts of others, and will eventually develop the confidence to present their own. Or not. But by copying from well-written sources, at least they'll get a feel for the way good writers organize their thoughts on paper.

What the kids are allegedly doing is relatable to hyperlinking, no? So why not reconfigure the assignment to require hyperlinks? I think a kid would have a harder time plagiarizing Internet copy if you made them link to their research sources. Teachers could set up class blogs, where students would post their work, links and all. If anyone suspected plagiarism, it would be a simple matter to highlight a few lines of text and run them through Google.

I hate to break it to everyone who wants to think we did things the right way in the olden days, but some kids used to copy material straight from the encyclopedia long before the the personal computer arrived. They scribbled the words on 3×5 cards, and then got those same words onto the page via a typewriter (defined in Wikipedia as "a mechanical, electromechanical, or electronic device with a set of 'keys' that, when pressed, cause characters to be printed on a document, usually paper.") It was laborious work, but for some kids, it was necessary.

Schools' primary objective should be: Every student a competent writer. It's my anecdotal impression that teaching good writing is not given a high enough priority in high school.  There are virtually no careers where you can get by without being able to present and organize words to express ideas to others. In the real world, many of those words are "boilerplate," which is a non-judgemental way of saying plagiarized (sometimes self-plagiarized). Your ability to choose the right words to copy, and to put them in the right place, is part of your education as a writer.

Don't misunderstand: To present someone else's words as your own is unethical. I'm disgusted by things like Cheathouse.com, where entire papers are available at a price. But, as the Times article points out, the same Internet that makes it easy to steal someone else's words, makes it easy to detect it when you did (just ask Ben Domenech.)

Here's tonight's interesting factoid:

The school also fights fire with fire, paying more than $2,000 a year to use Barrie's Web-based Turn It In, which checks a student's paper against a database of 17 million essays and papers. (John) Barrie's Oakland-based company, IParadigms, calculates that the odds of stringing the same 16 words together in the same order as somebody else is less than one in a trillion.

Wow. All over the world tonight, people are blogging, each entry unique, like a snowflake.

The Mystery of Plagiarism

Whenever the topic of plagiarism rears its head in the media, I scratch my head. People write because they want to express themselves and gain recognition. Where's the psychic satisfaction in letting the world think someone else's words are yours? The potential for material gain provides little incentive. For intelligent people like writers, there are usually better choices available if their objective is to make money.

To steal language from someone else's movie review squib, as now-disgraced Washington Post blogger Ben Domenech admits to have done, is somewhat like a bank employee getting caught for embezzling pens. What could Domenech have gotten paid by National Review Online for those movie reviews? $200? Why bother? And it's not like the prose he ripped off was all that scintillating.

ben domenech.jpgAre plagiarists just too busy to do their own writing? I suppose that what motivates college term paper plagiarists. Too many classes, too much partying, oh hell I'll just buy a paper on the Internet. And maybe that was Domenech's excuse. He was a young man in a hurry, perhaps, and needed to see his name ubiquitiously in print. But this kid is 24. He barely remembers a time before e-mail. He should know how easy it is to put a complete sentence or paragraph in a search engine and find its match if one exists. He risked, and lost his reputation for nothing, committing a transgression so easily detected.

Domenech's apologists talk about his selflessness for the cause of conservatism. The blog from whence he came, RedState, initially defended him against the left-wingers who discovered his plagiarism, but then had to backtrack:

If you, as many have done, dedicate thousands of man-hours to scrutinizing of (Domenech's) life's work, you'll find two things: First, you'll find several instances of this behavior, some attributable to youth, and some not. Second, you'll find an amazingly talented writer, a man of principle, and an earnest young activist seeking not to advance himself — though advance he did — but the things he believed in.

Certainly it may seem strange today to describe him as a "man of principle." But those who know Ben — and all of us on the RS leadership team do — know that he is passionate in his beliefs. They also know that he is human. It was ignoring this humanity that led to our earlier posts about the situation. It is fitting then, that he chose “Augustine” as his nom de plume here at RedState – for who could serve as a better reminder of the full potential of fallibility and sin – and yet existing within that peril – real hope of forgiveness.

So let me get this straight. Domenech's copycat reviews of mediocre movies served the holy conservative cause because it allowed Domenech to gain greater fame, such that the Washington Post would sponsor his blog, and thereby bring the good word into the temple of the liberal media? Something like that. How oddly expedient, for a movement that regards itself as the house of principle.

(I guess the right-wing blogosphere does not believe the old media is dead or irrelevant. In their heart of hearts, they want to convert the Washington Post, not kill it. Certainly, even before Domenech's perfidy was exposed, there was uproar on the left about his blog, one that clearly exposed the left's primary foible — a titanic level of intolerance for differing viewpoints. Just ask Sen. Joe Lieberman, he of the Americans for Democratic Action liberal rating of between 85-95, what happens when you vary from the orthodoxy.)

A couple of notable historians have been caught for plagiarism, like Doris Kearns Goodwin. According to Atlantic Monthly, she has never appeared on PBS since she admitted lifting phrases from a Kennedy book for her own. Her plagiarism seems more like an accident. Biographers assemble their work over the course of years from thousands of three-by-five cards (or the digital equivalent) with bits and pieces of information on them along with bibliographic information. When writing the book in question, perhaps Goodwin expropriated the prose on the notecard, unaware that it wasn't her notes at all, but direct quotes. I accept her excuse, even if Jim Lehrer doesn't, especially because she now seems sincerely ashamed at the error.

I would feel differently if it turned out Goodwin did it on purpose. But it would also strike me as mysterious. She obviously loves history and the people she writes about. She's already enjoyed a high level of success. Everyone's bank account could be a little bigger, but I doubt the difference between a house in Tahiti and one in New Jersey came down to a copying a few paragraphs from a writer far more obscure than she.

My attitude toward plagiarism comes from my mother. That I'm a writer at all is due to her insistence that I never copy prose from the encyclopedia for my school assignments. I'm sure every other fourth-grader who had to write about salamanders or Gen. Lafayette took sentences straight from the Brittanica, but my mother wouldn't allow it. So I had to rephrase everything, but it had to be just as good as my source. I spent many hours trying to do this, and emerged from the experience as a writer.

Then, of couse, I went into a profession — PR — that not only condones plagiarism, but ofttimes insists on it. Once your client has settled on "key messages," you're supposed to insert them in all the copy that flows from them. In media training, you tell your clients to "bridge" back to those key messages during interviews, e.g. "That's not the real question, Katie. The real question is, how are we going to (insert key message here.)"

The mind-numbing repetition of the same handful of sentences is supposed to help the client's message to "break through." That's one of those PR magic spells I'm beginning to think has worn off. Nobody watches politicians on the news interview shows anymore, according to the ratings. And why? Because all they do is repeat themselves and they don't answer actual questions. Does repeating the same answer over and over again work if no one's listening? When I hear someone talk, I want to be surprised by the originality of their thoughts and the way they express them. A heavily media-trained interview subject is a guaranteed bore. When were you ever persuaded by a bore?

Whether you're a writer or a speaker, plagiarism is malpractice for writers and speakers. That goes equally for self-plagiarism and plagiarizing your own PR people.