October 1, 2014
‘Mashed Up: Music, Technology, and the Rise of Configurable Culture’
Posted on Aug 27, 2010
Other DJs made a slightly different, but analogous argument: individuals aren’t geniuses, but their works or ideas can be. As DJ Paul V told me, “An idea can be genius, or someone’s passion about it can be genius, but that doesn’t make them a genius.” Similarly, DJ Drama, the Atlanta-based hip-hop and mixtape producer, told me that The Grey Album (a celebrated mash-up from 2004) was “an ingenious work,” but that the DJ who made it, Danger Mouse, doesn’t necessarily qualify as a genius. V/VM mashed up the concept of “genius moments” with the concept of “genius works,” telling me that “maybe some works are works of genius. But I don’t think anybody’s body of work is genius.”
If DJs on the whole seem uncomfortable with the concept of genius, music industry executives are more willing to use the term – both positively and negatively. When I asked Hosh Gureli of Sony/BMG whether there are any geniuses of sample-based music, he responded:
Hosh: I really think you have to give Puffy (Combs) his due, because he really brought sampling to a whole new height with the “I’ll Be Missing You” tribute to Biggie (Smalls). He did that without even getting permission (from Sting, whose composition he sampled), and he used so much of the record, but he got permission and they even performed it together. That was a groundbreaking record.
Aram: So that was genius?
Hosh: Yes. Biggie did that with a lot of records too.
The fact that Gureli cites Combs as a genius of sampling is significant for a number of reasons. Most obviously, Combs is one of hip-hop’s most successful recording artists, and in music industry parlance, “genius” has often been used interchangeably with “consistently profitable.” But Gureli clearly means more than this; for him, the genius of Combs seems to reside in the magnitude and brazenness of the rapper/producer’s sampling relationship to his source materials. Ironically, these are the very qualities that make Combs almost universally reviled among the DJs I interviewed. As Osymyso told me, “I’ll Be Missing You” “isn’t in any way a new song. You’d say, ‘that is someone rapping over the Police.’ It’s a very difficult thing to define, but the Puff Daddy stuff is soulless. It’s just not clever.”
DJs, Artistry and Copyright
Copyright law has always been full of ambiguities, inconsistencies and contradictions, but with their ham-fisted treatment of sampling over the past two decades, our courts and legislators have perhaps reached a new low. The only pattern to emerge from the confusing morass has been a steadfast rejection of sampling as a creative act.
As music attorney Gary Adelman, who formerly ran a techno music label called Liquid Sky, explained to me, purely sample-based works such as techno songs and mash-ups have historically been denied copyright, and therefore legal recognition of authorship:
Gary: Under the copyright law of 1976, he who creates owns. That’s the basic premise of copyright law. Copyright is an expression. And if you create it, you own it. When a copyright is generated, the author or the creator is the owner.
Aram: So is there an example of the Court assigning a new copyright to a sample-based work?
Gary: No. Not that I’m aware of.
USC law professor Jennifer Urban told me that copyright protection could theoretically be applied not just to sample-based music, but to the entire range of gray area between musical production and consumption. This is because a special subclass of copyright exists for the creative selection and arrangement of preexisting materials.
Aram: Is a person who creates an iPod playlist an artist or not?
Jennifer: Sure. If it’s a creative selection and arrangement. Yeah.
Aram: From a legal standpoint?
Jennifer: Yeah. I mean, I’ve never heard of anybody trying to enforce a copyright on a playlist, but I know of lots of books that are made up of chapters by lots of other people, right? And the book is held to be separately copyrightable as a compilation.
Copyright Attorney Bob Clarida made a similar observation, telling me that in a recent case, Caffey v. Cook, “the Court held that the selection and arrangement of songs in a musical revue was protectable, even though the plaintiff had no copyright in the songs. So I think it’s not a stretch to say that selection and arrangement of samples within a hip-hop track should be protectable.” If we recall that, for DJ Earworm, skill in producing mash-ups is defined in part by “knowing how to choose” and “knowing how to arrange” source materials, the “selection and arrangement” argument for sampling as a creative act starts to make a lot of sense.
Mashed Up: Music, Technology, and the Rise of Configurable Culture
By Aram Sinnreich
University of Massachusetts Press, 240 pages
Even if the Court were to agree, and grant copyright protection (and, therefore, Artist-with-a-capital-A status) to DJs on this basis, they would still enjoy an inferior level of protection (and therefore inferior status) to traditional composers and instrumental performers. This is because, as Clarida explained to me, copyrights granted on the basis of selection and arrangement enjoy the “thinnest” possible copyright protection: “you basically have only a protection against, you know, actual literal copying of your selection and arrangement.” In other words, even a trivial change in the placement of a single sample within a work (e.g. swapping samples 100 and 101 in Osymyso’s epic mash-up “Intro Inspection”) would theoretically be enough to destroy copyright protection.
“Some Kid in His Bedroom”
One of the most interesting things to come out of my discussions with musicians and executives about the borderline separating artist from audience was the frequency with which interviewees resorted to a single rhetorical device to justify their arguments. This device centered around a fictitious straw man, generally referred to as “some kid,” and usually located either in his bedroom or in his basement. Whatever credits, qualifications, or accolades were being extended to a given DJ or his work, they were simultaneously denied to “some kid” on the basis of his amateurism, inexperience, or isolation.
The prevalence of the “some kid” argument was especially high among music industry executives. For instance, DJ Paul V (who straddles the professional fence, as both a radio DJ and a mash-up producer), in extolling the virtues of Go Home Productions, argued that GHP warrants being called a “musician” because “he knows how to play an instrument” in addition to simply DJing. This affects the quality of GHP’s sample-based work, he told me, because “I think a musician’s head obviously has a different approach because they create music themselves. So that has to have an effect on how you hear things and how you approach things. As opposed to some kid in his bedroom, who doesn’t play an instrument.”
Similarly, Pete Ganbarg, an EVP at Atlantic Records, told me that “the kid who is making a play list on his iPod is not necessarily a musician. I think that you’ve got the great DJ minds of this generation. They’re artists in their own right for sure.” Hosh Gureli of Sony/BMG used this argument as well, telling me that “someone in the basement putting two beats together, they could love it and to them it’s art. But to the majority it might not be art.”
Although the “some kid” trope was most prevalent among industry executives, many DJs used it as well. During an interview with DJ Adrian and Bootie co-founder Mysterious D, the use of the term actually led to a lengthy discussion between the two of them about its meaning and significance, which bears repeating here in full:
Mysterious D: Mash-ups are so easy to make with software. You’ve got a kid in his room plopping an a cappella of any song over an instrumental of any song and it’s a mash-up. But he’s not an artist.
Aram: Why not?
Mysterious D: Because he’s not really using it for an artistic form. He’s just fucking around with software basically. Kind of like somebody who likes three chords on their guitar. Do you call them a musician or are they not a musician? It’s hard to say. You might call them a musician technically. But if you described to your friends, “This guy’s a musician, but he only knew three chords and can’t play anything else and doesn’t choose to,” I mean, then are you missing, you know –
DJ Adrian: But couldn’t you say, couldn’t you make a judgment call that was like, “Sure he’s an artist but he’s a bad artist.” Just the same way you would say, “Yeah, he’s a musician but just not a very good one.”
Mysterious D: Good point. So I use that because that’s what the media tells everybody. That’s not how we see it all, to be honest. I’m just used to using that because I’m gonna go with what most people believe. They call them “bedroom producers” and so on and so forth.
DJ Adrian: “Bedroom remixers.”
Mysterious D: But we happen to know that a lot of the people that are involved in it are either already doing (professional) remix work, they’re DJs for X amount of years and a lot of them are ex-band members. So it’s not just some kid in his bedroom. So I use that as cliché. Although there are that. There are kids –
DJ Adrian: And they’re amazing.
Mysterious D: So, and I refuse to call that “less than,” even though it gets implied as that in the media. And it gets implied as if, “It’s a kid in his bedroom – it couldn’t possibly be as good.” Again, going back to the D.I.Y. aesthetic of punk rock, which is why we think it’s okay. Yeah, you’re right, he didn’t know how to play his instrument, and he still made some sort of brilliant world-changing music. So that kid in his bedroom isn’t that big of a deal. I think that could actually be brilliant. It’s not a negative or not a cutback.
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