opinion Opinion September 16, 2019

How using samples can bankrupt artists [op-ed]

How using samples can bankrupt artists [op-ed]

The Avalanches debut album Since I Left You is a patch-quilt masterpiece almost two decades old that still sounds as singular today as it did when first released. But it wouldn’t have been anything more than a collection of files on an old hard drive if it wasn’t for Pat Shannahan.

Shannahan is known as ‘The Detective’, and has worked for Beck, The Beastie Boys, The Chemical Brothers and many more. Her job is to track down the copyright holders for samples, and negotiate usage rights: percentage points, flat fees, terms, conditions, all the legally-dense legwork that needs to be done before any song containing samples can be released into the wider world. It’s not an easy task tracking down the owners of recordings made a half-century ago in provincial towns by long-dead artists on long-shuttered labels. That’s why major labels employ people like Shannahan. Since I Left You contained north of 3,500 separate samples, all of which Shannahan needed to negotiate terms on. It’s daunting work. 

Back in 1989, the idea of clearing samples was a relatively new one. The chances of an artist getting into legal strife due to a few seconds of a dusty 45 were considered remote, if they were considered at all. Artists back then certainly didn’t think they’d be fighting these legal issues thirty years later. 1989 saw the release of both The Beastie Boys’ groundbreaking Paul’s Boutique and De La Soul’s kaleidoscopic debut Three Feet High And Rising. These are two of the most influential and beloved hip hop albums ever made. They have also caused their creators no end of headaches when it comes to sample clearances.

“That’s the album the Beastie Boys wish I had cleared,” Shannahan said of Paul’s Boutique, years later. “They’ve had a nightmare.” She has cleared every Beastie Boys album since then. Paul’s Boutique still contains a number of uncleared snippets of unclear origins, pulled from a milkcrate over 30 years ago, used for a few otherwise inconsequential seconds, then thrown back into the ocean, so to speak. 

This is a risky situation that becomes riskier as time goes on, especially given the current landscape surrounding musical lawsuits. There are possible future claims upon one of the Beastie Boys’ most revered creations, future lawsuits that could threaten to pull this record from services at any given moment. That’s got to be a nerve-racking prospect, but still a far better fate than what befell De La Soul, and their sample-heavy catalogue. 

Classic albums such as their kaleidoscopic debut 3 Feet High And Rising, and 1991’s De La Soul Is Dead have been out of issue since their initial runs. They were completely skipped over during the iTunes/MP3 era, and remain off streaming sites to this day. Basically, the only way to buy any De La Soul’s music released between 1989 and 2001, is to buy a second-hand CD, cassette, or vinyl version. A decent-sized hurdle in 2019.

In February, De La Soul announced their early albums would finally hit streaming services, but griped they would only receive 10% of the revenue, with label Tommy Boy collecting the rest. This seems like highway robbery when stepped out like this, but in actual terms, this figure is actually quite hopeful. De La Soul referred to a ‘phantom debt’ of two million dollars the label claimed they owed on these records; most likely the cost of clearing all the samples. At any rate, the deal fell through, and the music is still not available on streaming samples. 

It is doubtful De La Soul will ever see any profits from their most popular records.

De La Soul are still publicly feuding with Tommy Boy, and after seven months of stalled negotiations the situation seems untenable. De La Soul were negotiating to own their masters, although it’s still unclear how releasable those masters are.

“Well friends, after 30 years of profiting from our music and hard work… and after 7 long months of stalled negotiations, we are sad to say that we’ve been unable to reach an agreement and earn Tommy Boy’s respect for our music/legacy,” they wrote on Instagram a fortnight ago.   

Tommy Boy told the group they are “not in the business of giving artists back their masters”. 

“We realise there is a process in reclaiming ownership,” continued De La Soul, “but we do not trust Tommy Boy in this process after so many years of disappointment. Therefore, our catalogue will not see the light of day by way of our involvement or consent.”

In 2014, De La Soul were able to sneak their music into the future, by celebrating the past. Marking 25 years since 3 Feet High and Rising, they offered their entire catalogue for free download off their website, for a 25-hour window. 

“It’s about allowing our fans who have been looking and trying to get a hold of our music to have access to it,” De La Soul member Posdnuos told Rolling Stone. “It’s been too long where our fans haven’t had access to everything. This is our way of showing them how much we love them.”

It’s doubtful this was a purely altruistic move. Posdnuos continued to explain how “we’ve been blessed to be in the Library of Congress, but we can’t even have our music on iTunes. We’ve been working very hard to get that solved.” 

Like the mixtape culture, which gives away music built upon uncleared samples, De La Soul weren’t able to profit from their work, but at least they could disseminate it, albeit briefly, in a format it had never been available, to a younger audience who’d never bought a CD. It felt like a win.

3 Feet High And Rising was released in the same year as Paul’s Boutique, but was less oblique about their samples. Whereas The Beastie Boys used them as textures in an aurul patchwork, and were able to eventually clear most of the samples for around $250,000, De La Soul made the mistake of using instantly-recognisable sections from expensive classics such as ‘Rock With You’ by Michael Jackson, ‘Hey Jude’ by The Beatles, (Sittin’ On) The Dock Of The Bay by Otis Redding, and longtime radio staples from The Turtles, The Monkees, Billy Joel and Barry White. 

Then, once the record became a success, they waited for too long to attempt to clear the samples used. When Howard Kaylan and Mark Volman from The Turtles filed a $2.5 million lawsuit, in 1991, the band were forced to settle out of court for a reported $1.7 million, although De La Soul dispute this figure. It was the first of many financial blows.

Then as the digital age dawned, the group learned that due to hazy wording in contracts, any samples that were successfully cleared the first time around weren’t done so for digital release, further complicating things. 

While the Beastie Boys had gotten in early enough to clear Paul’s Boutique samples from the likes of Bob Marley, Led Zeppelin and James Brown for relative bargain-basement prices, De La Soul and Tommy Boy floundered. Personnel changes at the labels and unclear wording in their contract further stalled any clearance talks, and soon most of their work was unavailable. This is still the case today.

If this feels like a problem from the past, consider the case of ‘Old Town Road’.

The Lil Nas X hit is being touted the most-successful single ever released, which is true if you consider its 19-week reign at #1 in America to be the key metric on which to measure such things. It’s certainly the biggest song in recent memory. Billy Ray Cyrus doesn’t just jump on anything.

The song was famously built upon a beat that Lil Nas X bought for a tidy $30 from BeatStars, a site where bedroom producers can upload beats for rappers to purchase. He bought the beat, built the song, and through a savvy online campaign, and the wonders of virality, the song went on a historical chart run.

The only wrinkle was that, while Lil Nas X had bought the beat from a Netherlands producer named YoungKio, he hadn’t bought the Nine Inch Nails banjo sample upon which YoungKio built the beat. YoungKio hadn’t flagged this: he hadn’t even heard of the band, stumbling across the song ‘Ghost IV’ on YouTube and taking a liking to the banjos. By the time this issue had presented itself, Lil Nas X had luckily been snapped up by Columbia Records, who were able to negotiate royalty terms with Trent Reznor before re-releasing the single. (Side note: With ‘Old Town Road’ and Johnny Cash’s cover of ‘Hurt’, Reznor is carving out quite the accidental country music career.) 

But what if Resner hadn’t agreed to terms? What if he didn’t want his very solemn banjo playing included on some goofy song about cowboys and horses? He could have shot the song dead. Or, less drastically, he could have threatened to kill the song dead unless he received up to 100% of the royalties. It’s happened before. In 1997, hard-nosed ex-Stones manager Alan Klein famously wrestled 100% of royalties out of The Verve because ‘Bitter Sweet Symphony’ sampled string beds from an otherwise-inconsequential album of orchestrated Stones covers. Had The Verve refused these draconian terms, you wouldn’t know ‘Bitter Sweet Symphony’ at all, and you may not even know The Verve.

The same fate could have met ‘Old Town Road’. Billy Ray Cyrus could have been a one-hit wonder. Imagine!

The most successful song of 2019 was built in two separate bedrooms, by two teenagers using gear you can buy at any JB Hi-Fi and software you can steal online. This will continue happening, year on year. Big hits will come from the most unlikely places. It’s doubtful that the same kid producing hits on a MacBook Air will be studying up on the finer points of copyright, or untangling the twisted system of music ownership, of songwriting splits and clearance laws. Chasing consent from unknown authors of songs which sample songs with sample songs.

I have never heard teenagers discussing how Grand Upright Music, Ltd v. Warner Bros. forever changed hip hop in 1991 by shining a light on the unchecked nature of sampling in commercial rap music. Then again, I don’t hang out with teenagers. Still, more and more young producers are going to run into legal problems if they don’t learn about the traps you can fall into. 

After ‘Old Town Road’ blew up, YoungKio told the New York Times he often makes upwards of ten beats in a day. The Nine Inch Nails sample he pulled – and remember he had never heard of them at this point – is no doubt one of many he sells that contain unauthorised music somewhere in its composition. 

Lawyers and litigious rights holders will bleed such unaware artists dry. The world in which a kid is financially ruined for unknowingly ‘buying’ or ‘selling’ a Phil Collins snare hit is fast approaching. But by the grace of Rezner, it would have already. The lawsuits are sure to fly faster as musical detection software increases in sophistication, and the grounds for successful songwriting claims get more and more shaky. 

The next big hit single could end up costing some young artist their future.

Parents, it’s time you had ‘the talk’ with your teenagers.

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