this is kind of an interesting debate if you step away from it. and i don't
want to start a majors vs. indies war here, but i am interested to look at
this conflict AS AN INDIVIDUAL CASE (please keep this in mind as you read
the below; we're not writing constitutional law here and any fear of
setting an unhealthy legal precedent is not necessarily important...)...its
very easy to look at what the jedis did with the bongo band sample and what
the prodigy in turn did with the "bongolia" sample only from the standpoint
of international copyright law, in which case one would be forced to rule
that both groups are equally culpable for having profited from copyrighted
material without clearance and/or compensation. however, given the history
of sample-based music and the fact that some of the most significant
advances in western musical culture of the last twenty years have in many
respects been made possible by unfettered copyright infringement (early
hip-hop, house, and techno; the circulation of mixtapes; "public
performance" via pirate radio, raves, clubs; etc.), i don't think limiting
ones scope to that degree of simplicity makes a whole lot of sense.
is there another way to look at it? i think so. for one, one of the key
unwritten ethical subtexts of developing and/or experimental/underground
cultures is that its ok to borrow, quote, or sample one another as long as
no one's profiting any more from it than anyone else. as soon as that
degree of economic equanimity is compromised, that's when you start seeing
lawsuits appear. (this is, of course, not without exception, and the
criteria for judgement may vary from example to example; for instance,
american jazz artists in the '40s and '50s often used an artist's
credibility and integrity--often indicated by chemical dependence or
economic destitution, but not always--as a barometer for acceptability for
playing/recording/quoting from their tunes.) a recent example brings, i
think, many of the issues involved here into relief: robin rimbaud, aka
scanner, filed a lawsuit a while back holding up release of bjork's _post_
because it used a sample for which he was neither credited nor paid. now,
scanner has been sampled by other electronic musicians in the past (and he
has sampled others); only when a sample of his music appeared on a major
release did he take legal action. what i think this (and other examples
like it) suggests is that what is being protested by such lawsuits is not
necessarily the uncompensated or even uncredited use of copyrighted
material (if that were the case he would sue anyone and everyone who
sampled him), but the breaking of that unspoken agreement that, all else
being equal, the free circulation of influence and ideas (extending,
obviously, to outright sampling, since that is one way influence in
sample-based music is registered) is beneficial to the vitality and
development of the art.
so what's different in this case? none of the above should be read to
suggest that the jedis, as independent artists, are thereby good, and the
prodigy, as major label artists, are thereby bad (for example, i personally
think they're both lame). the point, rather, (at least as it appears to me)
is that the prodigy have courted pop stardom in ways that, at least as far
as the jedis are concerned (you may disagree) nullify the unspoken contract
of equanimity described above; that by choosing to play by a different set
of rules (those delineated by large marketing budgets, tons of press, music
videos, heaps of cocain, profit margins for pencil pushers, etc.) the
prodigy's access to the previous set of rules will, at least as far as its
within the jedis ability, not be allowed...long ago, george clinton
proposed a merit-based royalty payment system for sample usage (i.e. one
based on unit sales rather than a set fee or royalty scale), and i think
his proposal speaks directly to this dynamic.
i'd be interested to hear some opinions of artists on this issue,
particularly ones who have been sampled...(ken downie? how 'bout that
archive sample? any thoughts?)
sc