Penn State Berks Thun Library celebrates Fair Use / Fair Dealing Week, Open Education Week and Black History Month
“Hip Hop is Dead”: Did Copyright Kill It?
Nas album cover for Hip Hop is Dead via Hot 97 under Fair Use.
The Claim
Five years before Nas rapped the demise of hip hop, intellectual property expert and cultural critic Siva Vaidhyanathan predicted that changes to copyright law could have unintended negative consequences for creativity:
From my research on rap, I got curious about the evolution of American copyright law and how it altered and got altered by the rise of different media technologies and forms of expression. So I traced the changes from the 19th century publishing industries through the rise of film and television, through blues, jazz, rock, and rap, and finally to the digital moment.…
I think the DMCA (Digital Millennium Copyright Act) is misnamed. I don’t consider it a copyright act. I consider it an anti-copyright act. Copyright is a fluid, open, democratic set of protocols…. The DMCA wipes out the sense of balance, anticipation, and mediation, and installs a technocratic regime. In other words, code tells you whether you can use a piece of material. Under copyright, you could use a piece of material and face the consequences. The DMCA replaces the copyright system with cold, hard technology.
It takes human judgment out of the system and drains the fluidity out of what was a humanely designed and evolved system.
In his 2006 single “Hip Hop is Dead,” Nas recounts the influence of commercial record labels, recording studio contracts, and technology on the artistry, authenticity, and economy of rap music:
Any ghetto will tell ya Nas helped grow us up
My face once graced promotional Sony trucks
Hundred million in billin’, I helped build ’em up
Gave my nigga my right, I could have gave left
So like my girl Foxy, a nigga went Def
…
Went from turntables to MP3’s
From “Beat Street” to commercials on Mickey D’s
The staple of hip-hop’s beatmakers for nearly 30 years, sample-based production has slowly eroded over the past decade, due to rising costs and rampant litigation. Today the average base price to clear a sample is $10,000, and the threat of lawsuits over copyright infringement looms heavy over artists and labels.
Up until the early ’90s, artists sampled liberally from other musicians. But a case brought against Biz Markie in 1991 changed the rules of hip-hop and sample-based music as a whole.
Gilbert O’Sullivan performs his 1972 hit, “Alone Again (Naturally)”
Biz Markie covers lyrics and samples a piano riff in “Alone Again” (1991)
To this day, sample-based rap remains a shadow of its former self, practiced only by hip hop’s elite—those with the budgets to clear increasingly expensive samples or defend lawsuits when they don’t.
Some of the consequences for rap music as a genre are clear, the most obvious being that the sound of the music has changed.
It’s notable, for instance, that at the same time sampling was curbed by new copyright enforcement, we also witnessed the sunset of rap’s “golden age,” a time when dropping socially or politically engaged lyrics didn’t automatically relegate artists to “the underground.”
Fair Use doctrine applies a four factor analysis to determine whether the use of copyright-protected content is allowable without obtaining permission from the copyright holder:
Nature and character of the use
Failing to recognize the transformational nature of Biz Markie’s use of the Gilbert O’Sullivan song, “Alone Again (Naturally)” in his new work, “Alone Again,” Judge Kevin Thomas Duffy declared the musical snippet as theft and infringement under copyright law. In his decision, Judge Duffy points to the fact that Biz Markie’s attorneys started a process to obtain permission (clearance) to use the Gilbert O’Sullivan sample in Biz Markie’s new record, but permission was never granted.
Did Biz Markie make commercial use of the original Gilbert O’Sullivan track by selling his “I Need a Haircut” album which includes a sample in the song “Alone Again”?
Transformative uses are defined as those that “add something new, with a further purpose or different character, and do not substitute for the original use of the work.” Did Markie’s song transform the original sample?
Specific fair uses are actually mentioned in copyright law. They include:
criticism
comment
news reporting
teaching
scholarship or research
additional uses protected by case law include parody and satire
Creative works (musical compositions and performances) have more protection under fair use doctrine than technical works (musical scales).
Unpublished works have more protection than published works; the original song was released as a single by Gilbert O’Sullivan in 1972.
Amount and substantiality of the portion used in relation to the copyrighted work as a whole
What amount of the original song is used in Biz Markie’s recording, and how substantial is that content in relation to the original? Is it the ‘heart’ of the original work?
Effect of the use upon the potential market for the copyrighted work
Does the sale of Biz Markie’s album and other merchandise affect the potential market for the copyrighted work?
Would the people who bought Biz Markie’s album or merchandise choose to buy the original song, if it were available?
The Outcome
Some emerging artists, like Chance the Rapper, are embracing free distribution of their content. Chance speaks of releasing free downloads of his music as both a business loss leader in developing a loyal fan base, and also as a way of retaining creative control over his work and production process:
I don’t make songs for free, I make ’em for freedom
Don’t believe in kings, believe in the Kingdom
Rolling Stone: Have you thought about signing with a label?
Chance the Rapper: There’s no reason to. It’s a dead industry.
It’s not about the music being free. It’s about how it is displayed and made accessible and about artistic power. It was always about the artist-to-fan relationship.
Do you know why Chance isn’t in any rush to sign to a major label? It’s because he knows he holds all the power because he has the fanbase.
When an artist has the loyalty of a dedicated fanbase, they can be comfortable knowing that their fans will support them in whatever they do – whether it’s buying their music, show tickets or merchandise.
It doesn’t matter whether you’re on a major label or independent, having a loyal fanbase is the difference between being a one-hit wonder and having a long, sustainable career.
By working outside the system, Chance has managed to stay closely in touch with his city, his community and his musical and lyrical inspirations.
The monetization of Chance’s music has not been through paid streaming subscriptions and album rollouts, but through devoted touring. In an age of hectic exclusive rights battles between services like Apple Music, Tidal and Spotify, fans have shown their willingness to support and share free releases like Acid Rap and Coloring Book.
Chance’s independent success between his trio – or quartet, including Surf – of free project releases has outlined a path for artists to thrive as independents, away from the hectic streaming battles and hype surrounding first week sales that only seem to benefit established artists without the same level of creative control.
Biz Markie’s 1993 All Samples Cleared album cover art via NPR.org under Fair Use.
Curious about how to clear rights to incorporate sampling into your own audio creation?
Check out the sampling legal primer from DIY Musician, or start your musical discovery journey with a service like Free Music Archive, where all tracks are licensed for reuse of some kind.
Phillips, Chuck. “Songwriter Wins Large Settlement in Rap Suit : Pop music: Following a court ruling, Biz Markie and Warner Bros. agree to pay Gilbert O’Sullivan for rapper’s ‘sampling’ of ‘Alone Again (Naturally).'” Los Angeles Times, 1 Jan. 1992, http://articles.latimes.com/1992-01-01/entertainment/ca-1136_1_biz-markie.
Vaidhyanathan, Siva. “Copyright and Copywrongs.” Art & Technology Lecture Series, Columbia University, 26 March 2009, https://youtu.be/8NsnEuz7_yQ.
Vaidhyanathan, Siva. “Hep Cats and Copy Cats: American Music Challenges the Copyright Tradition.” Copyrights and Copywrongs: The Rise of Intellectual Property and How it Threatens Creativity. NYU Press, 2001. Get It! via Penn State University Libraries’ ebook collection.
