Sample My Privates: The Politics of New Media and Copyright Law

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The November 1998 issue of Electronic Musician carries an article on digital sampling entitled "Art or Theft?" It rehearses for its readers the standard controversies on sampling.
Joel Schalit and Jonathan Sterne

Issue #41, December 1998

The November 1998 issue of Electronic Musician carries within it an article on digital sampling entitled "Art or Theft?" It rehearses for its readers the standard controversies on sampling: whether it's a creative act to take and modify a sample of music originally made by someone else, whether and how artists should be compensated if their music is sampled, what constitutes fair use, and so forth. The magazine closes with an admonition to its readers in a section entitled "Caveat Emptor" -- buyer beware: "As it stands now, 'audio quotation' is still considered [copyright] infringement. 'If you take it, you've got to pay for it.'"

What's most interesting about the article is not the conclusion its author reaches - after all, Electronic Musician is one of the preeminent pro and semipro audio magazines - but that it has to make the point at all. Sampling and audio montage have been around for decades, though digital sampling, was not widely available until the mid 1980s. Hip Hop was of course already well established at the time and offered a popular musical vernacular for the technology. The question is, given the time and distance, why is it some things are taken for granted to be intellectual property and other categories of intellectual property are more recipes for struggle than clear guidelines for artists?

We believe the answer to this question demonstrates a fundamental flaw in the concept of intellectual property and its attendant notion of copyright violation. Put simply, intellectual property is only a valid category after the fact, after a certain set of practices are defined as theft. This is because the very notion of intellectual property requires a stable conception of content and media; without such a stable concept, intellectual property becomes an empty category. New communications technologies often wreak havoc with conceptions of copyright until the medium in question has a well-defined industrial and content structure. This can sometimes take years, and as is clear with the sampling example above, even a well defined industry sometimes has to grapple with a new technology.

To make this kind of claim shades awfully close to technological determinism, but in fact the problem is not one of machines having preordained effects in the social world but of the sociology of invention itself. At their earliest stages of development, communication technologies are rarely designed and developed with a clear sense of content in mind, much less a clear sense of intellectual property. New technologies are thus often taken as a challenge to the existing media industry; the existing structure has to "bring the new technology in line" or transform themselves to work with it. How and on what terms this process takes place is largely determined by how the new technology is made into an industrial and economic problem.

Digital sampling is a perfect example of the conditional nature of this process, but the politics and ethics of digital sampling are not nearly so clear cut as they seem. In 1984, Jean Michel Jarre -- whose music usually lay somewhere between New Age and pop classical -- produced an avant-garde album entitled Zoolook featuring samples culled from a wide range of ethnographic recordings and musical collaborations with such notables as Laurie Anderson, Adrian Belew and Marcus Miller. Jarre's album is careful to credit the companies who owned rights to the performances by Anderson, Belew, and Miller; it makes no mention of whose voices are being sampled or who owns those recordings, though an ethnologist is credited alongside the usual tape operators. (The album sounds like you'd expect it to sound -- as if it had been made by someone who just got his hands on a digital sampler for the first time.) The said and the unsaid on the record sleeve reflect a clear logic of cultural and intellectual property. The categories of creative production and ownership are clearly separated: the collaborators appear as property of their holding companies; the samples appear as common property. Here, the samples are not a "problem" in the same way that musical performances are because the recordings from which they are not the property of any record company -- they exist outside the industry. In contrast, a moderately successful (by major label standards) CD by A Tribe Called Quest from 1993, Midnight Marauders, contains a list of sample credits as extensive as the album credits. Of course, there are historical differences worth noting: in addition to the legal wrangling during this period, technology evolved and become cheaper, and sampling had become much more musically widespread.

Still, the difference between the two recordings illustrates a major theoretical problem with intellectual property. It is merely a concept of the concept: intellectual property and copyright describe ideas commodified, made exchangeable. Though the rights of cultural producers are often spoken of in the same breath as intellectual property rights, the two problems are completely distinct. As a result, the politics and law of copyright and intellectual property are not designed to protect cultural producers -- whether they be single artists or groups -- but rather whoever owns the work in question. In fact, cultural production is a non-issue for copyright; ownership is the only pertinent question. What separates the two examples above are not rigid categories, or even categories with a clearly thought out ethical basis, but rather ad hoc conceptions of what constitutes intellectual property based on a combination of industrial conventions and convenience.

The politics of intellectual property are thus the politics of classification. Recordings and performances are divided into categories of the ownable and the non-ownable. But it's also a matter of classifying practices, which differs from country to county and culture to culture regardless of the kinds of technological distinctions which underlies definitions of intellectual property rights . In the case of cassette recording in India we can actually see how identical practices get reclassified as theft as a music industry appropriates a new technology.

Peter Manuel's case study of the proliferation of cheap cassette technology in North India demonstrates how the fluidity of property concepts, and their disarticulation from the rights of cultural producers. Simple duplication can become piracy because the definition of piracy is itself fluid. In the late 1970s, cassette players appeared in noticeable numbers throughout the country, many of them being Japanese "two-in-ones" (radio and cassette player) brought in the tens of thousands by guest workers returning from the Gulf states. By 1979, the Gramophone Company of India (GCI, a subsidiary of the transnational Electrical and Musical Instruments, EMI) began issuing some cassettes and offering duplication services to other companies. Also in 1978, the Indian government liberalized the economy, effectively allowing a much greater degree of import and export trade, and producing a gigantic and burgeoning middle class -- equal in size to the entire population of France -- that quickly took an interest in new kinds of luxury consumer goods. Thus, the new economic policies also aided the spread of cassettes.

Cassettes are incredibly cheap to produce and reproduce, easily distributed and transported, and the playback mechanism is similarly portable. This led to a massive decentralization of the Indian music industry, previously dominated by GCI -- and by extension, the Indian Film Industry. Two cassette decks, and a supply of tape, spools and cases could put you in business as a duplication house. By the mid 1980s, cassette reproduced in this fashion accounted for the vast majority of the music sold in India. But this was not simply piracy, or illegal copying encroaching on legal industry. On the contrary, GCI, used to an effective monopoly, simply couldn't make cassettes fast enough to meet new demand.

metamor Furthermore, due to sloppy archiving and a massive warehouse fire, they were unable to re-release the majority of their catalogue -- some recordings remaining very popular or are resurging in popularity with the new medium. It should be clear that piracy is something of a complicated issue in these developments. Companies like T-Series, which started out as essentially pirate operations, eventually grew large enough to rival GCI and wind up pooling production resources with them on several occasions to meet high demand for certain recordings. Far from eroding the Indian recording industry, piracy made the contours of that industry. Where property rights are an issue, they are not an issue in relation to the rights of cultural producers. Most of the musicians on these recordings were paid a flat fee for making the recording and did not share in profits from sales. So even a position completely sympathetic with the needs of cultural producers does not automatically lead one to decry pirating. Today, companies like T-Series are seeking legal remedies against so-called pirate duplication houses only because they have gained enough industrial leverage to attempt to protect their own economic interests.

In North America however, the same politics of classification and ownership express themselves in an entirely different manner. Whereas in India an entire recording industry was allowed to grow up around the introduction of cassette reproduction technologies which were initially contingent upon the violation of intellectual property rights, during the 1990s, digital sampling technologies helped spur the birth of self-consciously "new" musical genres, such as collage rock, within a predefined cultural-industrial context. Such musical movements are worthy of consideration because they articulate the kinds of artistic ideologies which emerge from new industrial situations in which musical reproduction technologies are so thoroughly over-sold that musicians begin to aestheticize the means by which they are told music ought to be reproduced.

This becomes significant not because it marks a distinction of supposed cultural advancement between the development of Western over Eastern musical reproduction practices. Rather, copyright violation-based music demonstrates how market regulations defining intellectual property rights remain paramount despite their problematization by the introduction of new audio reproduction technologies which push the envelope of traditional definitions of cultural property ownership. An excellent example is the situation leftist audio collagists Negativland found themselves in August 1998. Primarily known for their advocacy of blatant copyright infringement, Negativland's The Weatherman's Stupid Come Out Line CD was initially prevented from being produced by the album's pressing plant due to new regulations defining musical piracy issued by industry watchdog group the Recording Industry Association of America.

According to the RIAA's regulations, any form of uncredited samples contained within a produced recording potentially constitutes a form of musical piracy in the same manner that a bootlegged CD constitutes a pirated recording. While originally intended to be a means by which to clamp down on digitally reproduced compact disc bootlegs created by newer and cheaper disc copying equipment, the wording in the RIAA's non-binding regulations were broad enough to be interpreted as legitimately applicable to undocumented samples as well. RIAA chairperson Hilary Rosen explained that the rationale for defining copyright transgression in this inclusive manner is because far too many techno, hip hop and dance acts were creating new songs by simply stringing together blatant samples of published works without alteration.

In order to prevent such forms of plagiarism from taking place the RIAA threatened to fine each and every disc manufacturer $100,000 per cited infraction. Over the course of the summer of 1998, several disc manufactures were caught reproducing bootlegged works, and successfully fined for abetting labels who had violated copyright law. But when it came to Negativland's Weatherman CD, the RIAA's enforcement policy got put into the kind of crisis that is built into a techno-cultural environment where art is put together by appropriation but restricted by private property relations. The infractions in question were two unlicensed Village People and Pink Floyd samples.

Negativland waged a vigorous and articulate media campaign on their own behalf, arguing that the RIAA's new piracy regulations inhibited their right to make a particular kind of art which relied on appropriating other artists' work. Citing everything from the right to freely express themselves, to the threat that such regulations posed to several musical genres which rely on digital sampling technologies, Negativland ended up prevailing in their dispute with the RIAA when the organization agreed to recognize the artistic legitimacy of the genre which the band claimed to be operating in: audio collage. In a letter written to the band by Hilary Rosen, the RIAA acknowledged its rules were potentially prohibitive of the right to make such art, for the first time driving an ideological wedge between private property rights covering intellectual ownership of cultural goods, and new musical reproduction technologies. Now, genres had rights too, though as Negativland's Mark Hosler explained, it would be hard to get an industry association like the RIAA to blatantly admit as much.

The significance of the RIAA's capitulation to Negativland lies not so much in what Negativland accomplished as much as what it maintains about traditional copyright law. In assigning the legitimacy of appropriation of private cultural property to a particular genre of music, the RIAA accorded a genre the same supposed rights possessed by that class of artists who have the capital to pay for the samples that they use, such as Janet Jackson sampling Joni Mitchell, The Beastie Boys employing Stravinsky, or Puff Daddy appropriating The Police. On the surface, this appears to be something of a victory. What it suggests is that artists of a lower economic standing can now, depending on their musical affiliation, have the same rights as artists who have the capital to pay for what they use. That's the point which Negativland wanted to make. But rewarding the right to appropriate to those artists who did not have it before does nothing to mitigate the structure of private artistic property relations because it continues to operate within a discourse of classification, of the ownable and the non-ownable. Not only that, but its also arbitrary, something of a token gesture which is dependent on the right of the cultural-industrial establishment to make radical exceptions.

That's why the RIAA chose to focus on the genre-specificity of Negativland's complaint. By restricting the concept of legal theft to highly individualized, subjective definitions of collage, the RIAA excludes the pervasiveness of appropriation as a compositional technique that is employed throughout the entirety of rock and roll. However, that's what you have to do when you create technologies of reproduction which come into conflict with their own content. Particularly at a time when methods of composition are parasitic upon the need to utilize other people's work as their source material. It comes as no accident that such official admissions of artistic tolerance arrive at a moment when technology has de-stabilized traditional understandings of what constitutes the content of private cultural property. When such crises exist, when art's substance appears to be in flux, the system of private property relations always gets challenged, in much the same manner that a startup record company in the Indian subcontinent has to violate traditional relations of intellectual property in order to be able reassert them later.

Just because an artist chooses to politicize their transgression of traditional private property relations doesn't necessarily mean that other acts of appropriation which don't regard themselves as revolutionary aren't equally political. In a one-dimensional way, they are. What unites them is how their respective breaking of ownership boundaries brings traditional forms of artistic content in line with new means of cultural reproduction. That's the only manner in which to reduce the possibility of theft, particularly when the technology which quietly encourages it only appears to do so because it needs to project an ideology of copyright violation in order to sell itself as a new way of reproducing commodities.

The problem is that like all ideologies, the thrill of being forced to learn new ways to produce goods always disguises how old what we're creating really is. The lesson to be learned is to not aestheticize new methods of production. Otherwise we lose sight of the fact that we might just be going through the ideological paroxysms that are symptomatic of the way systems of private property relations always recreate themselves.

Joel Schalit confesses that he transgresses private cultural property relations all the time as a member of garage collage artists Christal Methodists. Check out their brand new appropriation, Satanic Ritual Abuse, on Kolazhnikov. Otherwise Joel still maintains he's a doctoral student and associate editor of Punk Planet. Sample him at

Jonathan Sterne is finishing up a doctorate in Communications at the University of Illinois at Urbana-Champaign. In his free time he helps to organize a graduate employee union and plays heavy as shit bass in a band called Nastybake, who are proud to announce the completion of their first album. You can reach Jonathan at

Copyright © 1998 by Joel Schalit and Jonathan Sterne. All rights reserved.

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