Through composition, production, writing, philosophy and technology Primus Luta explores the many facets of his chosen muse – music.   Brought up in the recording studios of New York City, Primus learned the ins and outs of music production hands on, at a time when studio technology was beginning to shift; the analog tools he was trained on were quickly replaced by their digital counterparts.  Since then Primus has maintained an interest in the ways that technology affects not only how we hear music, but how it is produced.

Primus is the leading voice on the art and history of sampling.  His work in the field has led to the creation of the first system for notating sample performance.  Primus’ expertise extends into computer music, as the first authorized trainer of the modular software environment Plogue Bidule.  As the developers of the software have noted his work is amongst the first to “build a complete instrument within Bidule.”  One of the highlights is Primus’ 4|5 ccls which turned the cycle of 4ths and 5ths popularized by John Coletrane into a performance controller.

In addition to his creative work Primus is a documenter and historian for the global Beat Generation scene.  In 2009 he created a mix, entitled Beat Construction, which traced the history of instrumental music around the beat from 1979 to 2000.  He followed this up in 2010 with a series of mixes entitled The Vanguard tracing the work of the Beat Generation in the latter half of the 2000’s.  Today Primus presents a monthly podcast on the UK site Rhythm Incursions, curating a monthly mix of the latest music from the various genres and sub-genres under the BeatGen umbrella.

Primus contributes his writing to the leading website for digital music production, Create Digital Music covering topics ranging from modular audio environments to live performance of electronic music to the history of the digital revolution in music technology.  All of Primus’ endeavors work toward his personal mission to ensure the history of the intersection of music and technology is documented in the cannon of western musical theory, inclusive of all of those who have participated in its growth and development.

In theory, the ruling in the case Bridgeport Inc. vs Dimension Films should have opened up discussion on the subject of sampling as it relates to sound recordings.  The ruling itself states the need for this discussion to determine a “bright line test” by which future issues around the sampling of copyrighted sound recordings may be solved.  In practice however, the ruling itself has become the bright line test.

The case dealt with the Funkadelic song “Get Off Your Ass And Jam”.

The opening riff of the song was sampled for the NWA song “100 Miles and Running” (you can hear it first in the background around the 0:40 mark).

On musical grounds the district court found the amount of music used in the sample was not significant enough to represent an infringement upon the copyrights of the composition.

“After listening to the copied segment, the sample, and both songs, the district court found that no reasonable juror, even one familiar with the works of George Clinton, would recognize the source of the sample without having been told of its source.”

Now as both a P-Funk and NWA fan I have to admit, this isn’t true.  Any P-Funk fan that has heard Let’s Take it to The Stage, knows exactly where that riff is from.  What can be said is that the riff itself is not representative of the composition.  It is not a melody, rhythm or harmony which can be associated with the song, but rather an intro that appears nowhere else in the song.

A similar hypothetical was brought up by Hank Shocklee at the recent Replay Symposium on Sound Sampling.  He used the introduction to Prince’s “When Doves Cry” as his example.  Because of the popularity of the song as a single (compared to the P-Funk album cut), when Shocklee raised this example, everyone assumed it represented an infringement.  Here with the P-Funk case though, it is clearly exemplified that the sampling of an opening riff does not represent inherently represent an infringement on the musical composition.

However, the appealate court reversed this decision saying the de minimis issue was irrelevant to the prosecutions claims of infringement on the sound recording.

“No substantial similarity or de minimis inquiry should be undertaken at all when the defendant has not disputed that it digitally sampled a copyrighted sound recording.”

A line is draw here which distinguishes the sound recording from the composition in a way reflective of the outdated laws, though it is the interpretation of those laws without taking modern context into account that causes the most trouble.  The declaration that no inquiry shall be made when a sound recording is sampled, implies that the sound recording is beyond the realm of art.  Instead it is treated solely as intellectual property which, whole and piecemeal, cannot be used by an artist without prior permission.  The problem is that the sound recording is a work of art and the sounds within it, if utilized creatively, should, like their compositional counterparts, be evaluated under fair use before an infringement is declared.

De minimis states that if the portion of a the work used is small enough to be considered insignificant, it does not represent an infringement.  In sampling cases, de minimis is the first line of defense if one can show the sample does not represent a significant part or contain the ‘heart’ of the original work.  Where de minimis is not met, three additional factors can be taken into account for evaluation.  Among those additional factors is the transformative nature of the new work.  When evaluated objectively, both de minimis and the transformative nature of the new work would protect a substantial number of sample uses from infringement claims.

What is important about these two factors is that their evaluation requires taking the musical context of the sample into consideration.  While it isn’t specifically stated, these evaluations act as nods to the artistic process which is built upon the concept of borrowed themes.  Since time immemorial, artists have used the inspiration from other artistic works to create their own original works.  This is a part of the underlying conversation which happens in art.  Copyrights are meant to protect artists from plagiarism and piracy, not exclude copyrighted works from the artistic conversation.  Unfortunately, the Bridgeport Inc. vs. Dimension Films ruling did just this.

The question all of this raises is what separates the sound recording from the musical composition?  The obvious answer is that the musical composition are the musical elements of the song, while the sound recording is a captured performance of those elements.  The problem is that the sound recording can no longer be seen as part of the artistic conversation.  Where one can use two chords from the composition without it being considered an infringement, using the same two chords from the sound recording would be.

To some a solution to this would be to simply replay the chords from the composition.  What this doesn’t take into consideration however, is that it is not necessarily the chords, but many times the actual sound that they produce in the context of the sound recording that inspires the sample use.  This hints at the ultimate failing of the ruling to take into consideration the artistic nature of the sound recording itself.  It is not just a static piece of property, but rather an artistic statement, much like the composition, worthy of being a part of the larger artistic conversation.

To be clear, there are two types of sampling, appropriative sampling in which the sampling artist is appropriating the musical context from the original work, and transformative sampling which attempts to transform the sample into an original musical context.  As far as appropriative sampling is concerned, if the musical context has not changed from the original to the new work, it seems fair for the sampled artist to make some determinations about the use.  With transformative sampling however the sampling artist should not be hindered creatively by the possibility of fees or lawsuits.  Distinguishing between appropriative and transformative sampling for a sound recording, like the composition, boils down to analyzing the musical context.

Originality in composition is evaluated by melody, rhythm and harmony.  Where a sound recording is of the composition, these elements should be self evident in the recording as well.  There are added factors that go into the recording which are not inherent in the composition itself.  First are the individual performances of the musicians.  These can strictly adhere to what is written in the composition, but they can also embelish upon the written work, extending into the realms of improvisation.

Then there are the sonic characteristics of the recording itself.  While in previous eras this may have been seen as merely the technical side of things, today it is very much recognized as a part of the art.  The reverb on the keys, mic placement on the drums, ground noise in the amplifier – all play into the sound of a recording, and often it is this sound, and the sample producers ability to transform it, that is the inspiration, as much, if not more than the actual composition.  This is why simply playing the composition over is not the same as utilizing a sample.  When you play it over you are covering the composition, but when you sample you are composing with the sound.

Some of the techniques employed by transformative sample producers highlight this.  One of the classic sounds of sample productions from the 1990’s is the filtered S950 (Akai model sampler) bassline, which required musical content other than just the bass to produce the optimum results. The end result is still a bassline, but filtering out those other instruments produces a layer of harmonics that couldn’t be accomplished with a solo bass.  So in listening to a record the producer does not just listen to how it sounds but how it could sound when they transform it, in this case via filtering. A similar example is reversing a sample.  It is not the reversing the notes in the composition that the producer is going for, but rather the sound of the audio being played backwards.

If you take either of those approaches and combine them with techniques such as the chop or “16 Levels” (popularized in the Akai MPC series), it becomes obvious that the sample is being used as a sound to be played. With the chop small notes or phrases are sampled and then played as an instrument into a completely new context.  With 16 Levels, a single sample is spread out chromatically (or non-chromatically) across 16 pads where the sound of that sample at various pitches can be performed into a new arrangement.

A sample does not have to be so literally altered to qualify as transformative.  Returning to the earlier example, the P-Funk sample in “100 Miles and Running” has not been changed much sonically.  However the context for its use has changed quite significantly.  The first thing is only a portion of the introduction is used and that small portion edited into a loop.  More importantly though, the riff does not introduce the song, but rather plays a supportive role as a background layer.  It doesn’t jump out at you and if you aren’t listening for it you might miss it.  Contextually it plays a different role in the sampled work than it did in the original.  A similar example can be found in my Come Clean installation, investigating the sample used in the Jeru the Damaja and DJ Premier classic.

All of this supports the notion that there is a sound design aspect to transformative sampling which by its nature, is not about the art that is the composition, but the art in the sound recording.  Where the sound recording is appreciated as art on par with the musical composition, and not just regarded as property, the same evaluations made for the composition can be made for the sound recording.  Is the sampled sound a significant portion or the ‘heart’ of the original composition?  Is the sample use transformative?  The musical context from the composition can be evaluated based on harmony, melody and rhythm.  A fourth criteria a good friend refers to as ‘the sonic texture’ can be added as modern technology is more than equipped to evaluate.

Treating the sound recording as art includes it in the overall artistic conversation, and changes the perception of those who use pieces of those sound recordings for the creation of their own work, from being thieves to being participants in the conversation.  The possibilities this opens up artistically is literally limitless, even if there were laws put into place which imposed some limits on it.  The point here is not that there should not be laws, but rather that the laws should be based on artistic grounds not solely proprietary ones.