This paper looks at sampling specifically in the hip-hop music, exploring the co-

existence of cultural and industry practices. The history of the genre helps us to

understand to some extent how DJ-driven musical style evolved into using samples as

sonic (sometimes also political or cultural) references to other music. The copyright

laws that address sampling are interpreted through the discourse and understanding of

what is actually happening in the act of sampling; referencing to, or copying someone

else’s creativity. For financial reasons the opinion on the legal platform is the latter

(McLeod 2004). The question that I look into is how does the copyright law impact

on the practices of hip-hop through sampling?

This paper is mainly based on the articles Sampling Ethics by Joseph Schloss (2004),

This Is A Sampling Sport’: Digital Sampling, Rap Music and the Law in Cultural

Production by Thomas Schumacher (1995), “’Don’t Have No To DJ No More’:

Sampling and the ‘Autonomous’ Creator ”in The Construction of Authorship by

David Sanjek (1994) as well as Kembrew McLeod’s How Copyright Law Changed

Hip-hop: An Interview with Public Enemy’s Chuck D and Hank Shocklee (2004).

Some interviews were also conducted by hip-hop artists and producers in order to

explore how does the theory match the actual practice in South Africa and elsewhere.

These interviews are offered as real life case studies of individual practitioners, and

this paper does not offer evidence for or against these reflecting the dominant

practices nationally or internationally.

What are these samples?

The discourse of sampling is determined by its perspective. Legally speaking

copyright law regulates this practice and this perspective is driven by economics.

Copyright laws are property laws (Schumacher 1995: 253) and therefore “political
and economic, not moral matter” (Frith 1987: 73). In practice, sampling is part of

creative process and not a legal one (interview with Damian Stephens 2009) so it is

not as easy to regulate by law. Samples can be also interpreted as musical quotations

that should be treated in a same way as with literature by crediting all sources (Sanjek

1994: 358). Sometimes sampling is not only a question of sounds, but the artists

sampling can also want to tap into the political or other contexts of the original song

as well. Examples of such songs may be for instance Zuluboy’s song Nomalanga

which samples Caiphus Semenya’s struggle song and This Is London by Akala

sampling London Calling by the Clash. Akala himself says that most importantly the

sampling was about sound, but that it took other things into consideration as well

(interview with Akala 2009). For economic reasons the most powerful interpretation

is the one favoured by copyright lawyers and the by and large corporate right owners

(McLeod 2004).

For the purposes of this paper I have divided hip-hop roughly into two extreme ends

of the spectrum: industry and culture as illustrated in the table 1.

These two different aspects are not mutually exclusive or even very common

occurrences in their purest form as they are here presented, but they are, as said, the

extreme ends of the spectrum leaving most things as shades of grey somewhere in the

middle. Most hip-hop practitioners are not famous or even living out of the art form,

but use it for other means such as expression. Like football has many more kids

playing in the parks than David Beckhams, so does the hip-hop culture have more

non-profit making or nominal income (regardless of trying to earn more) practitioners

than super stars that often get referred to in the sampling debates. Viewing sampling

purely economically tends to overlook the fact that mostly hip-hop is driven by

something else. Most of the established artists have a strong presence of both culture

and industry in their function. It also is important to remember that as hip-hop and rap

as a genre has been initially defined in the United States, much of the discourse reflect

that, rather than its now global reach and usage as a platform for people to express

their own culture through it, or it, through their own culture. When Schloss (2004)

talks about the ethics of sampling based on the cultural values of hip-hop (instead of

the copyright law), the focus is on North American hip-hop and of a certain era.

Today world wide these unwritten ethical codes, regardless of Schloss writing them

down, may be little known or given thought to outside of the ‘old school’. Five out of

six rules that Schloss has recorded could be seen as something that limits the

creativity (vinyl as the only source of samples, not sampling from other hip-hop

records, not sampling from records you respect, not sampling from compilations or re-

issues, only sampling one part of a record) and only one tries to encourage the

diversity of sounds (not using the same sample someone has already used unless it has

been changed significantly). Rules like these could have been expected to be known

and understood in the streets of New York when vinyl was more available, but it

would appear rather elitist to judge the youth world wide for using what they can.
Also, trying to interpret other cultures through a narrow window of one’s own does

not offer much real clarity. The discourse around sampling, just like with many

intellectual property matters, suffers from many confusions of the extreme opinions

(Lessig 2004: 212) and therefore both the corporate industry and the cultural purist

end up doing more harm than good to the general understanding around the sampling

as consisted of its creative practice and economics. The history of sampling explains,

although does not justify, to some extent why sampling is still such a problematic

concept for the music industry although these days the general practice is that the

songs that have any significant financial returns have only cleared samples. This

means royalties to the right owner, introducing old artists to new markets and

reintroducing the original artists to the old audiences. It is that history we are

exploring next.

Roots of sampling and a short history of hip-hop

Sampling basically comes from the fact that rap music is not music. It's
rap over music.
(Chuck D of Public Enemy in McLeod 2004)

The early sampling was a manual procedure consisted of live mixing of various songs

by the DJ:s in the context of Jamaican mobile discotheques. Different effects such as

reverb, echo and emphasising the bass started to be applied on tracks a little later and

this became called dub (Sanjek 1994: 346-7). This activity of different people creating

different, and potentially endless amounts of versions supports Foucault’s (1977) idea

of the flaws of single author-function; no one really has the last say (Sanjek 1994:

347). When one looks into these roots of hip-hop it seems evident that its influence

was the practice of DJ:ing rather than musicianship as it was traditionally known, and

therefore sampling; interpreting someone else’s creativity by re-using sound elements,

seems like a natural part of the genre.

During the course of the seventies this style of Jamaican DJ culture moved to New

York and created its own scene that later on became the hip-hop culture. The vocal

performance of rapping was initially to support the DJ and hype the audience up but

with time in New York it became an art, probably building on the poetry culture, on

its own right. On top of DJ Kool Herc, who gets to be credited as the originator of the

culture in United States, other DJ:s such as Afrika Bambaata and Grandmaster Flash

were developing live mixing techniques of looping break beats (Sanjek 1994: 347)

and using other elements of songs in a way that they were not necessarily even

recognisable.

MIDI technology, created in the early eighties, allowed the manual real time mixing

culture to become pre-recorded. Although initial technology was far from current

equipment, it was the early version of sampling as many understand it now (Sanjek

1994: 348).

Another confusion in the discourse of sampling is its simplification. Especially the

ones not very familiar with hip-hop tend to refer to only the most obvious samples

that do not particularly emphasise creativity. However, according to Sanjek (1994:

348-51), there are four main ways to use samples.

Samples used in the songs can be very recognisable and songs using even the original

hooks with modified lyrics (Sanjek 1994: 349). An example of this could be much of

the music produced by Sean Combs (also known as Puff Daddy or P. Diddy). Best

known as practiced by the group Public Enemy on their earlier records, sampling can

also be a sound collage where different, often very small elements, are put together to

create a sound from which the original samples are difficult to tell apart without a vast
musical knowledge and a trained ear. Sampling can also consist of mixing many

recognisable songs together and remixing (Sanjek 1994: 349-50).

Initially the recording industry allowed the sample usage relatively freely in the hip-

hop culture. Hank Shocklee, the leading member of Bomb Squad production team,

which produced the early Public Enemy records, remembers:

The only time copyright was an issue was if you actually took the entire
rhythm of a song, as in looping, which a lot of people are doing today.
You're going to take a track, loop the entire thing, and then that becomes
the basic track for the song. They just paperclip a backbeat to it. But we
were taking a horn hit here, a guitar riff there, we might take a little
speech, a kicking snare from somewhere else. It was all bits and pieces.

(McLeod 2004)

It was when record companies started to notice that hip-hop is able to create

significant money that they started going after the copyrights in a way that made the

sound collages so difficult and expensive to clear that it practically speaking ended

the practice on a commercial level (McLeod 2004). As one of the key foundations

behind the idea of copyright is encouraging creativity (Davies 2002) which was

already questioned by Haupt (2008: 77) due to the corporate ownership of many of

these rights, it also is questionable specifically with sampling as one could argue

sound collage sampling being more of a creative process than just using one obvious

sample, but according to Chuck D, lawyers do not differentiate between the craftiness

of a collage or blatant sample (McLeod 2004). Schumacher’s argument (1995: 264)

“sampled recordings are not granted an author-function the way that supposedly

individually created recordings are”, suggests that maybe it is the very nature of being

sampled and lacking the originality, that makes it less important what kind of

sampling is creative or is any. Hip-hop and its sampling practice does not fit well in

the idea of copyright and one origin of text or single author-function as Michel
Foucault (1977) explained it. Copyright also traditionally has applied more to lyrics

and melodies than the rhythmic elements which are often more important in hip-hop

music (Sanjek 1994: 353). The often corporate ownership of the rights also means that

the original creators of the music that has been the most sampled, the African

American musicians do not own the rights to their compositions as those rights were

underhandedly acquired by the record companies (Haupt 2008: 78).

Clearing samples and mixtape culture

Legally speaking songs that use samples must get permission to use the copyright

protected elements. This practice is referred to as clearing samples and it is a

relatively long process taking up to one month in South Africa (Uyatsaka 2009: 14).

In the process of clearing the sample the owner of the rights for the song and the

recording state their terms, and a contract that can made then determines how the

royalties get divided (Sanjek 1994: 354). The MOBO Award winning artist Kingslee

Daley, better known as Akala says that clearing as a concept is not problematic but on

a practical level the process could be simplified for everyone’s benefit (interview with

Akala 2009). In South Africa the CEO of Pioneer Unit label and a producer Damian

Stephens says:

I have never even tried [to clear samples]. It just seems like too big a
hassle considering how few units we sell. Our philosophy is that if
anything starts to sell in big enough numbers to warrant it, we'll contact
the owner of the sample and let them know that we used their music,
and can we work something out… …If a rights-owner wants to sue us…
…rather than come to the table and see what we can do together, that's
an occupational hazard and risk we accept up front.

(interview with Damian Stephens 2009)

This raises questions of the reasons behind the copyright laws regulating sampling

and should they be revisited based on the economical impact of the sample used to the
song. Most practitioners of hip-hop are not making money in any significant way, and

therefore regardless of what the law says continue expressing themselves creatively as

they wish. While the mainstream of rap has been taken over by corporations, it

appears that the rebelliousness of the counter culture lives somewhere deeper within

the hip-hop. Another example of ignoring the copyright laws, even by more

established artists who gain financially from the music business is the mixtape

culture.

Releasing mixtapes before albums is a relatively common practice amongst hip-hop

artists. They are generally seen rather as a marketing tool for the commercial release

than a direct profit making venture themselves. Mixtapes are mainly sold on the

streets and concerts or in a small scale in record shops. With Internet they can also be

made available as downloads which at times are free. The mixtapes as they are

released by the lyricists and rappers (not DJ:s or producers) are highlighting their

lyrical skills and therefore the musical backgrounds often get taken from other artists

without clearing them. This practice goes quite clearly against the copyright laws, but

Akala explains that

… there's been an unwritten rule that it's ok to jump on other people's

tracks and freestyle without clearing them provided that on a
commercial level it really is a mixtape that is sold on the streets and not
something that is sold in record stores or commercially exploited in any
meaningful way. Originally record companies… …wanted to enforce
their copyright but they quickly realized that these mixtapes had an
underground credibility that helped their artists get exposure and often
reignited interest in the original tracks and that if everyone sort of
agreed to let this slide then every company's artists could benefit.

(Interview with Kingslee Daley aka Akala 2009)

The problem with unwritten rules is, of course, that someone, for instance from a

record company could quite easily sue as there is no official agreements in place and a
rule such as this, even from the industry point of view could use being written down

to allow the grassroots practitioners and the youth of hip-hop to train their skills

without being demonised as one day they may be the cash cows of the recording

industry. As things stand, the industry does not appear to have anything to lose in the

situation based on the practices of people already being as they are.

Conclusion

A hip-hop sample can be seen as a text or a commodity depending on one’s

perspective and placement in the culture and/or industry. The commodity, the

economic driven interpretation tends to win on the legal platform (McLeod 2004), but

as hip-hop is not just the songs on charts and radio, the common practices of many of

the practitioners around the world do not respect the copyright laws. These

practitioners often do not make any significant income out of their craft and therefore

the occasional fury of the copyright owners seems, if not unjustified, at least a bit

exaggerated. Creative process and global cultural practices are not very easy to

regulate.

Hip-hop has its roots on DJ culture and therefore using other songs as a part of it

seems natural. This kind of building on others work resonates Foucault’s (1977) idea

of authorship that does not have to be tied into single author-function.

The process of clearing samples is described as a difficult one and it potentially

discourages people with lower sales to follow the procedure even if they would not

have anything against the clearing as a concept. The copyright law in this regard is

difficult to follow and leaves many practitioners of hip-hop under a threat of a law sue
from a corporate music industry. The polarisation of culture and industry does a

disservice to both.

Sources:

Davies, G. (2002) Copyright and the Public Interest. London: Sweet & Maxwell.

Foucault, M. (1977) Language, Counter-Memory, Practice: Selected Essays (Trans.

Donald F. Bouchard and Sherry Simon). Donald Bouchard (ed.). Oxford: Basil
Blackwell.

Frith, S. (1987) “Copyright and the music business”. Popular Music 7(I): 57-75.

Haupt, A. (2008) Stealing Empire: P2P, intellectual property and hip-hop subversion.
Cape Town: HSRC Press.

Lessig, L. (2004) Free Culture: how big media uses technology and law to lock down
culture and control creativity. New York: The Penguin Press.

McLeod, K. (2004) “How Copyright Law Changed Hip Hop: An Interview with
Public Enemy’s Chuck D and Hank Shocklee”. Stay Free! 20.
Internet Source: http://www.stayfreemagazine.org/archives/20/public_enemy.html

Sanjek, D. On the Author Effect: Recovering Collectivity. The Construction of

Authorship: Textual Appropriation in Law and Literature. Martha Woodmansee and
Peter Jaszi (eds.). Duke University Press: Durham and London, 1994.

Schloss, J.G. (2004) Making Beats: The Art of Sample-Based Hip-Hop. Wesleyan
University Press: Middletown.

Schumacher, T.G. (1995) “This Is A Sampling Sport’: Digital Sampling, Rap Music
and the Law in Cultural Production”. Media, Culture and Society 17.2 (April 1995):
253-273.

Uyatsaka, M. (2009) “How to clear a sample”. Hype Feb/Mar 2009.

Copies of the interviews with Kingslee Daley and Damien Stephens are available on
request.