Creative License: The Law and Culture of Digital Sampling

Abstract

Creative License: The Law and Culture of Digital Sampling. By Kembrew McLeod and Peter DiCola. Durham, NC: Duke University Press, 2011. x + 325pp. (paper). Illustrations, Bibliography, Index. ISBN 978-0-8223-4875-7 Imagine a world in which a baker encounters the following tribulations. Setting out to bake a loaf of bread, she knows exactly what ingredients she needs, but finds it extraordinarily difficult to acquire them. There is no one place to buy those ingredients, and even identifying who owns them is a challenge. After much sleuthing she is able to identify the keepers of the ingredients, but one won't return her calls, two flatly refuse to let her use their precious ingredients, two others want to know what everyone else is charging her before they decide, and yet another demands a fee that she couldn't pay even if she sold a million loaves. She encounters this situation every time she bakes a new kind of bread. This would be such an absurd world that even Kafka might deem it a stretch. But this is the kind of world in which a certain group of musicians operates. These are musicians who compose by incorporating fragments of previously recorded sound into their works, or more specifically, those who use digital sampling. Just like our hypothetical baker, a musician who wants to create a piece of music by incorporating multiple and disparate samples faces a bewildering set of obstacles, including copyright holders who are variously usurious, capricious, inflexible, or unreachable, laws that are vague and ambiguous, and an ad hoc system of licensing samples. Copyright holders--those who must give permission to use the music that the samplers seek--often find themselves equally frustrated as they encounter musicians who refuse to pay for or acknowledge the music they borrow. These musicians and the world in which they find themselves is the subject of Creative License: The Law and Culture of Digital Sampling, by Kembrew McLeod, a professor of communication studies, and Peter DiCola, a law professor. Quite a few scholars (including myself) have grappled with the thorny subject of digital sampling, but McLeod and DiCola break new ground with a rich study that not only combines cultural, musical, economic, and legal perspectives, but also offers practical, cogent proposals for making the situation surrounding sampling a bit less Kafkaesque. Creative License begins in the middle of the story of sampling and then works its way backwards before catching up to the present. Chapter 1 explores what many refer to as the golden age of digital sampling (c.1987-1992), when hip-hop giants like the Beastie Boys, De La Soul, and Public Enemy roamed the earth, devouring countless bits of recorded music and fashioning these bits into astonishingly creative (and multiply infringing) musical collages. The next chapter takes a step back, richly contextualizing sampling in the history of popular and avant-garde musicians ranging from John Cage to the Beatles. Whereas chapters 1 and 2 are primarily historical in nature, chapter 3 is essentially a primer on music and copyright, though the authors spice up their lessons with colorful anecdotes that illustrate the variety of ways in which money changes hands (or doesn't) when music are sampled. …