Carl Stone: Intellectual Property, Artistic License and Free Access to Information in the Age of Sample-Based Music and the Internet
FRANK J. OTERI:Okay. I want to turn this upside-down. Let’s say it’s next summer and all the big summer hip-hop hits come out. There’s a new Eminem record, and new Snoop Doggy Dog record…I think he’s just calling himself Snoop Dogg these days…or Dr. Dre, who is totally anti-Napster, you know, one of these guys who basically makes music created from samples of other peoples’ music. What happens if one of these guys samples Mom’s? You know, an additional rhythm tracks gets thrown behind it, there’s a rap over it, and it becomes a hit record. They just takes a little hunk of your piece and they don’t ask your permission. The record goes platinum and they make millions of dollars. What do you do?
CARL STONE:As a practical matter, or what’s my moral…
FRANK J. OTERI:What’s your moral position, what do you do? It may not be the same answer.
CARL STONE:I thought about this only to the extent that some people from time to time have talked to me about sampling my music. I figured it would be certainly hypocritical if I refused anyone the right to sample my music. Even though, I must say, I don’t sample contemporary music or electronic music or any materials that are already developed or processed. What I’m looking for is something that is clear as to what the source is, that is sort of anti-electronic, and making it electronic. But if someone were to come along, like some people I know, or even composers out of the blue and asked to sample something, I cannot say no. It’s never ever come to the point where such sampling has turned into a hit record, and so I’ve never had a sort of moral versus financial dilemma on my hands. So I don’t know. I haven’t really thought about that. I think that probably that if Dr. Dre has the resources to clear any samples he wants, not only does he have the staff to handle the paper work but also has the money. Composers who work out of their basement or in their bedroom studio can’t go up against the big labels- when we want to sample a major artist, it’s almost impossible to go up against a legal machine, and anyway, the easiest thing for the big label is just to say “no”. Because as far as they are concerned, there’s no money at stake when a composer sells, if lucky, 5000 copies of a CD. For a big label, the financial upside is so inconsequential and the paperwork is so involved, they say no.
CARL STONE:Although he didn’t actually get into that much trouble over the music, he got into trouble the same way that Negativland got into trouble: both because of the cover art. The Plunderphonics album cover was a kind of PhotoShop edition featuring the head of Michael Jackson on the body of a Playboy model, and that’s what caused all the fuss. And in the case of the Negativland release it was the fact that the cover had a big bold U2 on the cover. I don’t even think it had the word Negativland on the cover.
FRANK J. OTERI:Negativland actually appeared in small letters on the bottom, and the argument by U2′s record company, Island Records, was that people would think it was a U2 record named Negativland because no one’s ever heard of Negativland.
CARL STONE:I think it’s ironic that in both cases it really wasn’t the music that caused all the excitement, even though when the lawyers went deeper into the whole thing, they found the music too had it’s own tangled rights problems. It wasn’t the music. The music was way too far under people’s radar.
FRANK J. OTERI:Right. It’s funny, I don’t know if you know but there was this incredible lawsuit back in the 1930s with a song called “And the Angels Sing” which was a pop song that Benny Goodman had recorded, and Ziggy Elman, his trumpet player allegedly had written it. Abe Schwartz, one of the leading Klezmer players in America in the 1910s and 20s, recorded a tune he claimed was identical, 20 years earlier. To me, listening to them back to back, the two songs sound very similar. In Goodman’s version, it is a little slowed down and it’s stripped of all the typical Klezmer inflections, but it’s basically the same tune. But the judge couldn’t hear it and threw the case out of court.
FRANK J. OTERI:Oh right, “He’s So Fine.”
CARL STONE:Right, “He’s So Fine” versus “My Sweet Lord.” Look, there aren’t that many chords in American pop vocabulary and there are only so many combinations and permutations, eventually, you’re going to run out of variations.
FRANK J. OTERI:Well the thing that I found so funny about the whole “My Sweet Lord” thing is that nobody ever said that it was produced by Phil Spector, and “She’s So Fine” was produced for a girl group called the The Chiffons by a man who in the early 60s was Phil Spector’s chief rival George “Shadow” Morton. Now, you know Phil Spector knew that original song.
FRANK J. OTERI:Poor George. But to get back to the issue of someone sampling your music, on a moral level you wouldn’t have a problem with it.
CARL STONE:On a moral level, no, no.
FRANK J. OTERI:But on a financial level, it would be nice to get something…
CARL STONE:Well, I would say that just as I would be willing to go to anyone and say look, I can’t pay you $10,000 up front, but I’m using this material, it’s a small section of your recording, but it’s a kind of important basis for my piece, so why don’t we work out some formula to figure sharing the royalties. That’s what I’ve done in the past. And that’s what I would want people to do with me. And just let it go at that. That’s kind of my position.