Heiruspecs' Sean McPherson talks music copyright with expert Peter DiCola

Categories: Q&A
Photo by Keith Schoeler
By Sean McPherson

Sean McPherson teaches at McNally Smith College of Music, is a founding member of Twin Cities hip-hop collective Heiruspecs, and plays bass with Dessa's touring band. He recently conducted a conversation with a leader in the changing terrain of the music copyright world, Northwestern University law and economics professor Peter DiCola, who co-wrote Creative License: The Law and Culture of Digital Sampling (Duke University Press 2011). 

It's possible no record labels are suing Girl Talk because the potential litigants are afraid he'd win. Greg Gillis and the rest of his team have the dollars it will take to have their day in court with the big players in the music publishing world.

If Girl Talk's day in court does come he would likely be defending his highly referential works under fair use, a rarely defended part of the Copyright Act of 1976. If Gillis is able to defend his work under the protection of fair use, a large economy built around a copyright clearance system that requires a license for the use of even a nanosecond of a master record would change.

The last big change for this economy was after a 2005 legal decision known as Bridgeport v. Dimension Films. This decision famously read in part "If you sample, get a license." This ruling removed the "gray area defenses" of the copyright law in regards to using master recordings. One goal of the ruling was to create a market where sampling clearances would become more efficient because it would be so universally required. Instead, it has created a sovereign state of bigwigs with bank accounts who can still create referential pieces that build off of previously recorded works. Artists who sample, but don't have the budget to license, sit in a gray area fearing a lawsuit that will derail their career.

But even for big players, the days of multiple samples creating the groundwork for a new piece are gone. The modern business practices of sample clearances would leave artists such as Public Enemy and the Beastie Boys deeper in debt with every record they sold, to the tune of Public Enemy losing $4.47 for every copy of Fear of a Black Planet sold. This is because nowadays the majority of frequently sampled artists are requiring 20-100 percent of the publishing rights for a song; if you toss six samples into one new composition you are coming out of pocket each time it is sold.

The changes brought about by the 2005 Bridgeport vs. Dimension Films has changed the rules for every player in the sampling world. It is the basis for Jay-Z seeking permission from the estate of a Depression-era songcatcher named Alan Lomax to release "The Takeover" because Jay sampled KRS-One's vocals from a track that sampled a cover of a cover of a song partially attributed to Alan Lomax.

It is the reason musicians across the country spend time in studios mimicking nuances and mistakes from pieces recorded thirty years ago and it is the reason I am leaning against a pole on a train in Chicago asking one of the leading lawyers and academics on sampling law why you need no permission to cover someone else's entire song but you need six months, a sample clearance specialist's Rolodex and $2,000 at a bare minimum to loop a two-bar drum loop legally.
This interview is a blues song for every record that you won't hear because a lawyer spilled coffee on the clearance request or because "Steve Miller won't clear any samples for hip-hop." If and when Girl Talk wins a lawsuit protecting his work on the grounds of fair use, I'd let you sample the song and flip the meaning like cultures have been doing for centuries, but hopefully you won't need my permission by then. If you're not sure if you need permission I'd check with Peter DiCola. That's what I'm doing on this train.

Peter DiCola is making his mark as a trustworthy voice in an area of law and entertainment that needs sound legal and historical context. DiCola's deep knowledge of the "standard" practices of the various stakeholders in sample negotiation as well as his knowledge of the written law helped set the record straight on a number of topics.

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