[78-L] Copyright Criminals on PBS

[Michael Biel]

From: Cary Ginell <soundthink at live.com>
> Finally saw the "Copyright Criminals" show on PBS and was more than disappointed.
> It spent the whole time on hip-hop artists and didn't really delve more deeply
> into the subject of exploiting copyrighted works without permission.

Especially considering some of the comments later on in this thread,
like it or not, you all do realize that there are more people interested
in these forms of music now than are interested in the forms you guys
discussed.   

> It concerned producers who are making "mash-ups" consisting of taking
> samples from existing recordings and editing them together to make a new song.

Editing is not the proper description.  Manipulating is closer to it. 
Editing denotes splicing unaltered bits together like a montage.  They
are taking individual notes or short groups of notes and turning them
around inside-out and upside-down, backwards, forwards, faster, slower,
and blending them together, sometimes with live performance. 

> Big deal. The argument was between those who accused them
> of doing this without permission from the original performers
> and those who claimed their creativity was being stifled if
> they had to go seek licenses.

They were blind-sided.  You and many others have talked and written
about how kids and naive young adults -- especially minorities -- in the
50s rock era were taken advantage of by lawyers, agents, and record
companies.  These modern rapsters might seem to have "street-smarts",
but at the start of this they were just as naive about the ways of
business.  In the 50s, the kids harmonized on street corners, singing
songs they had heard everybody singing or maybe had made up themselves. 
If they got a record deal, the record company dealt with the mechanical
rights for the old songs, and essentially stole the rights to the kids'
new songs for themselves.  The performers knew nothing about what was
happening with this behind the scenes.  Today's kids and young adults
gather on streetcorners and shout out "lyrics" to each other with rhythm
instead of sweet harmony, and play around with electronic devices and
turntables like they see dance DJs and their friends doing. 50s a
cappella groups didn't even use ANY musical instruments!  

> Pigeon pellets! Of course it's stealing and of course they
> should license samples. That's a no brainer.

C'mon Cary, you know better.  Their street-smart savvy is just a front. 
These kids knew nothing more about the business of music than the kids
of the 50s did.  In the 80s, if they were doing it on their own making
cassettes and now burning CDs, nobody pays anybody any more than they
would have in 1955 if there was a way for them to have cut their own
records.  If they got a record deal in the 50s, it was up to the record
company to hash out all of the legal details, and these record companies
knew their way around the businee.  But in the 90s NONE of the
established companies who had people who knew how to do it would touch
this stuff.  So they set new companies and didn't know their way around
the business much more than the kids did.  And if they did, they were
out to stiff the system anyway.  It's nothing new.  You know that
Roulette, Specialty, VeeJay, and other labels were often on the shady
side of the deals in the 50s.  Same thing now, only that this time they
are up against the MCA, EMI, BMG, Sony, and the other huge organizations
which inherited Roulette and the gangsters who ran it, plus have huge
gangs of tone-deaf lawyers.  

There's another factor.  The film noted that the majors ignored them
until they started to make money.  Then the lawyers realized they could
get a free ride, and retroactively started demanding outrageous fees
such as tens of thousands of dollars for three seconds of sound.  You
can take a mechanical out for just a few bucks for the use of an entire
song, but a couple of notes of the recording of the song cost $25,000. 
And this money would go to the record company, not the original
performers of those notes.  The original performers are being screwed by
the companies that are controlling their records.

> It's just proof that the hip-hop world has nothing new to say musically.
> They want to use other people's hard-earned work just to get a rhythm bed
> behind them so they can create their rant-filled rap lyrics. Come up with
> an original melody, beat, or background, and I'll take notice. 

Once again you are being sanctimonious here.  Traditional blues is just
the same crap over and over and over.  They are all playing the same
three chords on the guitar, squawk a few puffs in and out of a
harmonica, half-sing a four bar statement, repeat the four bar
statement, and then repeat the same goddamn four bar statement a third
goddamn time, and then finish the statement with a four bar answer. 
Then a few more strums and bleats in the harmonica that a four year old
could do.  Then the make a similar four bar statement, repeat that
second statement, then repeat it for a thirds time, and make a four bar
answer.  A few more picks on the guitar and a few more bleats and the
they do the same thing again and again.  Every blues record sounds the
same.  It's part of the style.  I say that there is LESS originality in
trad blues than in hip-hop, and I HATE hip-hop and like blues.  You
dislike my characterization of trad blues?  You understand it and hear
the subtle nuances in it.  You "dis" hip-hop?  It is because you don't
understand it and hear the subtle nuances in it.

> The only older musician they interviewed was Clyde Stubblefield,
> the drummer for James Brown during the late 60s, whose work has
> (apparently) been sampled more than any other drummer (I have no
> idea why). Stubblefield put on a good face, saying he was glad
> his music was being recognized, but then, in the same breath,
> seemed a little pissed that he got no credit or payment for
> use of his drum patterns.

It was not only patterns, it was individual drum hits as well.  He said
that often he would not know it was him unless he was told it was.  If
you are not paying for the sample, you don't identify it and give the
lawyers a road map.  If you DO pay for the sample, it gets paid to James
Brown's record company which demands the credit be given to JAMES BROWN,
not Clyde Stubblefield.  Clyde Stubblefield was a contract player for
James Brown.  He got paid for the session.  James Brown got the
royalties for the sale of the record, and the James Brown estate gets
the royalties for the sample (if there is any left over after the
lawyers and the record company gets their shares.)  In 1968 would you
have EVER heard a James Brown record being played by a DJ saying that
"this is a record by James Brown and his drummer Clyde Stubblefield"? 
Of course not.  If a yowl or grunt by James Brown was sampled, the
credit would go to James Brown.  If a drum beat on a James Brown record
was sampled, the credit would go to James Brown.  

> Seems like the producers of the documentary were extremely selective
> in what they used (why only Stubblefield?). 

Because many of the other original musicians are either dead or the
companies that control their recordings would not let the film's
producers use their recordings as examples. Stubblefield is a working
musician who produces weekly gigs in Madison, Wis. and did this
interview to self-promote.  I had never heard of him before.  This is
the best publicity he has ever gotten.  In the panel session I attended,
the producers mentioned another performer who's recordings had been
sampled but the company he recorded for was taken over by a lawyer who
realized that there was millions to be made by suing, not by licensing. 
They told the story about how a record company wanted to license a
sample from him with the blessing of the original performer and was
repeatedly put off by the secretaries and everyone else.  Finally after
several weeks they were able to schedule a phone call.  The secretary
put the call thru, and before they had a chance to introduce themselves,
the guy shouted "NO!" and slammed the phone down.  They wanted to use
interviews about this but knew the guy would sue them.  They didn't have
film or audio of that phone call.  Leah and I are trying to remember the
performer, but it probably was someone we had never heard of in the
first place.

> One moron tried justifying the musical theft by comparing it to
> photographers cheating by not painting pictures instead of using cameras.

HE WAS CORRECT.  Don't your realize that the camera was invented by
PAINTERS!  It was an outgrowth of the Camera Obscura that was used by
painters to project a scene onto a surface they could trace and paint. 
When light sensitive chemicals were concocted, these painters
experimented with them to see if it could produce a base for their art. 
He was saying that we do NOT accuse photographers of cheating by using
camera instead of a paint brush.  Likewise we should NOT accuse samplers
of cheating by creating their composition using manipulated samples
instead of bleats on a saxophone like some of the avant-garde musicians
I disliked during a previous thread a few weeks ago.    

> Others basically said that creating the mash-ups constitutes a
> new composition and that they don't need permission to be creative.
> Then why do people who create arrangements of existing copyrighted
> works need to get permission to do so?

Because the copyright law had written the specific AND AFFORDABLE
procedures to do this, because the framers of the copyright law
understood how written musical arranging was done in those days.  

> And in my business, when a marching band director wants to create a
> band arrangement of "D'yer Maker" by Led Zeppelin, Zeppelin gets the
> royalties for the arrangement, not the arranger. 

If Zep is the collective composer in this case, there is a statutory
royalty for the composition built into the copyright law.  Any royalty
for the sale of the record was something they had to contract with their
record company for. Likewise, of course, the publisher of the
arrangement can contract with the arranger for their sales royalties,
and the original composer automatically gets the statutory royalty built
into the law.  If a recording of the song is made, the statutory and
affordable mechanical is all the record company needs.  But there is
nothing included in the law if the record company wants to use a few
notes of Led's recording of the song.  WHY???  Because nobody thought of
it in the 1970s, that's why.  Now they have thought of it, but is there
going to be any action to make a REASONABLE STATUTORY sampling license
fee regulation??  WHY THE HELL NOT???????  If I play a record on the
radio the station pays a performance royalty to the composer and
publisher, but NOT the performer and the record company.  If I play the
same record on a DIGITAL radio or internet station I pay a royalty to
the composer, publisher, performer, and record company.  WHY?  Because
there is a law, that's why.  The establishment record companies were
able to sneak this into the Digital Millennium act.  Why has there been
no action to allow for a digital sample of a few seconds of a record? 
WHY?????  Because there is too much money for the establishment record
industry to make off these outsiders that will be ended if a reasonable
royalty was written into the law.

> I found the documentary poorly researched, boringly presented,
> and not exploring the subject more fully.   Cary Ginell

To the contrary, I found that it explained the dilemma that these
performers have met from people in the music and legal industry who are
tying an emerging technological-based art-form because they don't like
its sound, they are too rooted into the musical forms of the past, they
see a great way to take advantage of people like the record companies
took advantage of people in the early rock era, and the potential
rewards of corporate minuipualtion of the system is in the
multi-millions of dollars now rather than the tens of thousands of
dollars it was in the last century.  I talked to the producers about
electronic music sampling of Stockhausen and Charles Dodge that nobody
sued about, but they briefly mentioned the Beatles use of sampling in
Number Nine that nobody sued about (and nobody paid license fees for),
they briefly mentioned jazz interpolations but they realized that nobody
gives a damn about that old music anymore and they had limited time,
they didn't mention theme and variation composition in classical music
because they know that nobody gives a damn about that old music which is
PD anyway, and they didn't mention marching band arrangements and
baroque music reconstruction score licensing because it was not about
sound recording fees.

Mike Biel  mbiel at mbiel.com