Cutting Across Media and Creative License operate well in tandem as an exploration of the interplay and tension between creative practice and copyright law. Where the former presents a loose collection of essays and interviews united by a common theme of appropriation and collage techniques across a broad spectrum of art forms and media, Creative License represents a far more focused work, analysing the practice of digital sampling.
Cutting Across Media: Appropriation Art, Interventionist Collage and Copyright Law ‘… starts from the assumption that culture is a complex process of sharing and signification. Meanings are exchanged, adopted, and adapted through acts of communication – acts that come into conflict with intellectual property law’ (p. 2). The word collage is applied in its broadest sense not only to include visual art but also literature, cinema and music. The disparate content and loose arrangement of the chapters consciously echoes this theme of collage by accommodating The KLF, William Burroughs, visual artist Chris Ofili, writer Jonathan Letham, Negativland, and many more diverse and disparate creatives. One chapter consists primarily of a cease and desist letter from the lawyers of Philip Glass to Hip Hop producer Mr Len. The absence of a consistent dominant narrative throughout these essays can make for some challenging reading. However, this lack of focus is perhaps the greatest strength of the work, as the cumulative effect on the reader of this eccentric assortment is the sense that artists from all disciplines are engaged in this process of appropriation reinterpretation. While the fragmentary, interdisciplinary nature of the content may be of limited appeal to those seeking a meaty addition to the existing Popular Music Studies canon, as a broad but idiosyncratic overview of creativity, appropriation and copyright, Cutting Across Media is a testing but worthwhile text.
Where Cutting Across Media is consciously expansive and irregular, Creative License deals with the so-called ‘Golden Age’ of digital sampling in American Hip Hop and as such is a more structured work rooted in the realms of Popular Music Studies. The ‘Golden Age’ referred to here is the period between 1987 and 1992 when digital sampling had become commonplace in Hip Hop music and the force of copyright law had yet to significantly curtail the wholesale use of uncleared samples. Among the most well-known works of this period are De La Soul's Three Feet High and Rising, Public Enemy's It Takes a Nation of Millions to Hold Us Back and The Beastie Boys’ Paul's Boutique. These albums were constructed almost entirely on layers of sampled loops and sounds from existing recordings. Unsurprisingly, this use of copyright-protected sound recordings has considerable legal ramifications which reverberate far beyond the comparatively straightforward act of performing a cover version of a song, for example.
One of the most notable aspects of this study is the number of interviewees and the varied backgrounds of these ‘stakeholders’. Input comes from academics, record company executives and, most impressively, from a vast assortment of artists, both samplers and sampled, from many music genres. A recurring criticism of the copyright system – and of many previous academic studies of copyright – is a tendency to exclude the artist from discussion and debate about how copyright operates. Fortunately, Creative License does not perpetuate this trend.
In laying out the argument, the authors create a historical, cultural and legal context out of which the main argument emerges. While not offering anything particularly new, Creative License does present a very competent, engaging historical account of the development of Hip Hop and digital sampling. Culturally, McLeod and DiCola locate Hip Hop in an ongoing musical tradition of appropriation and sound collage of earlier works, citing examples from Brahms’ borrowing some of his First Symphony from Beethoven's Ninth, to Woody Guthrie's transformation of traditional religious folk songs into political protest songs. The scope is not simply limited to historical examples, but examines how artists such as KLF challenge notions of authorship and ownership by using sampling in a way that has its roots firmly in the avant-garde. The conclusion here is that sampling can neither be considered an elitist nor a ‘ghettoized’ pursuit, but instead exists within a long tradition of, ‘… allusion, quotation and reinterpretation’ (p. 73). Again, this is eminently readable and interesting but not especially ground-breaking.
The most impressive aspect of the scene-setting opening chapters is the examination of the legal implications of sampling recorded music. McLeod and DiCola achieve the difficult feat of bringing clarity to what is by nature an extremely complex subject area by starting with a ‘nuts and bolts’ description of how music copyrights operate, the main stakeholders involved, and how the sample clearing system operates. Building on these foundations, Creative License then explores some of the most useful cases involving sampling and the legal rulings in the US courts, culminating in the Bridgeport ruling of 2005. This ruling effectively requires that all samples of existing, copyright-protected work must be cleared, whereas previous rulings allowed de minimis use of short samples. Bridgeport, it is argued, effectively terminates the type of digital sampling seen in the ‘Golden Age’ as a creative pursuit.
McLeod and DiCola convincingly argue that, in addition to the legal obstacles, ‘royalty stacking’, where the fees paid for legitimate use of authorised samples, would have seen these albums bankrupting the artist and/or their label. In this respect the threat of legal and economic penalties created a climate where artists such as Dr Dre, rather than release records featuring samples, would instead imitate samples on other instruments or disguise samples to the point that their origins become unrecognisable. A logical development of this argument is that the intervention copyright law encouraged a new type of creativity. While a more rigorous examination of this strand of the argument would have been welcome, it is perhaps not possible within the confines of this text.
The closing chapters of Creative License attempt to engage potential reforms that could be made in order to reduce the friction between sampling and copyright law. While its obvious imbalances make copyright an easy target for scathing criticism, it is far more of a challenge to present practical solutions that may result in a fairer, more balanced system for all stakeholders. McLeod and DiCola are bold enough to explore a set of modifications that might be made to the existing copyright system in order to allow it to accommodate digital sampling in a way that is mutually beneficial for both samplers and samples. However, these potential reforms to copyright have associated costs and difficulties that are insightfully critiqued by the authors. For example, a compulsory license system may reduce transaction costs and the influence of recalcitrant rights owners, but would also deny the originator any degree of control over the subsequent use of a work. Such examples illustrate the difficulty in achieving a more balanced copyright framework.
McLeod and DiCola concede that the potential reforms they describe are, in some ways, as unwieldy and problematic as the existing copyright system they seek to reform. Out of this admission emerges perhaps the most valuable enduring sentiment of this work, that is to say, that there is nothing natural about copyright. In doing so, Creative License offers the salient reminder that copyright is, after all, a construct designed by human hand and therefore can be subtly refined or fundamentally altered. Though this may seem a glaringly obvious observation, when one considers the historical tendency for copyright to inexorably expand in terms of scope and term, it is a very worthwhile conclusion for a very worthwhile text.
In short, these books – and Creative License in particular – present a refreshingly balanced and nuanced reading of how copyright law informs creative practice, and as such make a valuable contribution to this area of study.
