Here's a paper I recently wrote about Biz Markie

The way in which a piece of information technology, such as a computer, works, limits, and opens new possibilities in the way we makes sense of our culture; is by no means neutral. There are glaring philosophical and political issues, which are at stakes as a result of copyright use in an age of reproductive technologies.

Musicologist John Shepherd once proposed that music could be analyzed with the use of semiotics as a form of communication, which for purposes of abbreviation can be designated as 'text' [Shepherd, 1991]. You could regard a modern electronic music track as a text, which is created on a sequencing device. Using a program like Cubase or ACID Pro is equivalent to writing text with Microsoft Word. The sequenced results can be likened to a montage of other texts. This occurs because other texts within a particular piece are a source of “inspiration”, leaving traces in the structures of the new text. Since a text is written in a particular tradition of communication, it follows that no text can be entirely original as a text always refers to other texts, otherwise it could not be understood. The use of a sampler has made this intertextuality more apparent since a song can be created from the sequencing of snippets of a sound as well as from recognizable fragments from other recordings. This practice has led to accusations of theft. [Lawrence, 2009]

The kind of definition of an origin of meaning and therefore of authorship may indicate some of the problems concerning the definition of copyright. Cultural critics such as Michel Foucault have an interest in the empowerment of an audience and ultimately the masses. Modern electronic music is a good example of the kind of music that could achieve this. On the other hand, current copyright law is informed by an ideology that ultimately keeps hierarchical structures, which are based on ownership, intact. Institutions which traditionally capitalize on musical products such as record companies and publishing houses, have an interest in the current status of copyright law which protect the rights of ownership or intellectual property by institutions and of individuals. The “moral right” of the individual author was first recognized in the U.K. with the Copyright Designs and Patents Act of 1988. However, the right of this type of author is a rather fragile one and seems to be defined in terms of capital power rather than in terms of origin or “authenticity” [S. Jones, 1999]. Even so, with the widening and shifting of the definition of the author, one may doubt the practicality of the implementation of current copyright law under the Orphan Act. Either more needs to be included, which may ultimately stifle creativity, or otherwise concepts such as plagiarism need to be reconsidered [“Matt”, 2009].

In regards to music there are essentially two types of copyright: the copyright of the sound recording, which is usually owned by the record company, and the copyright of the composition that is owned by the composer and writer but often shared with a publisher. Compositions are usually defined in terms of notation in the tradition of Western European classical music, even though one does not need to register the copyright with physical notation sheet paper. [Wardzinski, 2009] Musical forms which are based on a genre that stresses textures and rhythms, or what can be referred to as a “groove” or “beats” do not have the same level of copyright protection as those that are based on genres, which stress lyrics and melody. A lot of music produced under the umbrella name of “club music” can be described as “groove based.” This means that the genre is financially vulnerable. Important parts of these tracks are unprotected while being endangered by lawsuits concerning the use of samples [Lawrence, 2009]. In addition, copyright law is biased towards those who can afford to file lawsuits rather than those who may need more protection. Ironically, copyright law has economically affected composers more favorably than performers and therefore recording studio technologies over performing technologies. By not fully recognizing the creative performing qualities of the use of affordable studio technologies such as samplers or the use of record deck, an entire section of artistic endeavor is ignored and perhaps even endangered. Perhaps if users of these technologies had a greater access to capital investment, entirely “new” and “original” works could be created, using “real” instruments and “real” performers. Yet, although DJ and hip-hop culture may have their roots in economic resourcefulness, they have resulted in the creation of culturally valid texts, within the context of a popular cultural tradition. It seems clear that developments in digital technology, as well as in the production and consumption of music are outdating copyright law at a fast pace. [Ahern, 2009]

Less than twenty years ago, copyright law had no specific provisions to deal with the act of sampling. In 1991, a case concerning the use of sampling technologies in hip-hop is what set the mood for future proceedings. A precedent was set on the use or rather “misuse” of samplers, when Gilbert O’Sullivan took Biz Markie to court in New York [Baran, 2002]. Biz Markie, a rap artist and therefore steeped in DJ culture of hip-hop, had “lifted” eight bars of the introduction of the song Alone Again (Naturally), by Gilbert O’Sullivan (MAM, 1972). Using this riff as the basis for his song, he also used some of the lyrics (a samples of three words) and adapted the title, calling it Alone Again. Biz Markie’s argument was that he had meant it to be a “parody”. In other words, this is a type of comment on another text, which is quite legitimate within the limits of current copyright law. Nevertheless, the label of the artist, Cold Chillin’, as a subsidiary of Warner Bros., should have had the legal expertise to recognize the dangers should a substantial part of a song be used without copy clearance in advance. The case appeared when 250,000 copies of the album I need a haircut, which contained the song, were already available on the market. Since the song was not a “straight” cover, Gilbert O’ Sullivan did not give his consent. As a result, Judge Kevin Duffy, Federal Judge of the United States Court for the Southern district of New York, who, it is alleged, has no experience in these kind of cases, ruled that Biz Markie’s album should be taken off the shelves by the following Monday. The case ended in an out of court settlement although a criminal prosecution was considered [Schumacher, 1995]. In Britain the Copyright Designs and Patents Act of 1988 section 107, which is a section used to tackle piracy, could also be used to put sampling under criminal proceedings. Since 1956 in Britain the copyright owner has to give permission in advance for the use of a substantial part of a work.
This case had set the mood in the US for a precedent on what can be considered to be a “substantial part”; the criminal offence of “theft” is now defined as the use of a sample of a part of a song as the basis of a “new” piece of work, whilst adapting the title and the lyrics for one’s own purposes. Although producers are more careful now in clearing the material they use, often the beginning and the underground artists have not got the capital or the knowledge to do so. [Wardzinsky, 2009] In addition, there seems to be unwillingness amongst club producers to give into the whims or the major record industry:

There’s always an anti-sampling feeling going through the record
industry and it’s not the artists but the record companies and
publishing houses. Even if the original artists say (sic) go
ahead use my record, their record company can just turn
around and say no or charge you ridiculous amounts of money
for it. It’s ridiculous because there’s 10,000 reasons why you
should be allowed to sample and only about two why you
shouldn’t. [Ahern, 2009]

From an artistic point of view, Foucault’s taunting question: “What difference does it make who is speaking?” [Foucault, 1984], makes sense when one accepts culture as a common good. However, in the context of a capitalist political economy of music, copyright of ideas is given a higher priority. The difference in who is speaking is determined by who has the money, knowledge and willingness to assert the exploitation of a cultural product.
As the concept such as the author is redefined, so is the issue of authenticity. The authentic is tied to ideas of original of a work of art as a fixed point, a “presence in time and place” [Benjamin, 2005]. In Foucault’s notion of the author, coherence is found within the realm of a discourse, its procedures legitimizing only certain acts of “Truth” and therefore authenticity. However, in being aware of these procedures, one has to doubt forever an absolutely true reference point to which the notion of authenticity has been tied. As Foucault points out: “The political question, to sum up, is not error, illusion, alienated consciousness or ideology; it is truth itself.” [Foucault, 1988]

Therefore, it would only be when an alternative discourse, as with this example DJ and hip-hop culture, becomes accepted amongst “mainstream” culture that it becomes possible to argue for a different type of copyright legislation as the Orphan Act.













Works Cited
Ahern http://www.1217Design.com, Sean C. "Interview with Sean Ahern, multimedia designer." Telephone interview. 02 Feb. 2009.
Baran, Madeleine. "Copyright and Music: A History Told in MP3's." Illegal-art.org :: a project of Stay Free! magazine. 2002. 31 Jan. 2009 .
Benjamin, Walter. "The Work of Art in the Age of Mechanical Reproduction." Marxists Internet Archive. Ed. Andy Blunden. Feb. 2005. 30 Jan. 2009 .
"Copyright, Designs and Patents Act 1988 (c. 48)." Office of Public Sector Information. 28 Jan. 2009 .
Foucault, Michel. Power/Knowledge : Selected Interviews and Other Writings, 1972-1977. New York: Pantheon, 1980. p. 133

Foucault, Michel. The Foucault Reader. Ed. Paul Rabinow. New York: Pantheon, 1984. p. 120

Lawrence gregaudio@gmail.com, Greg. "Interview with Greg Lawrence; professional Sound Engineer." Telephone interview. 1 Feb. 09.
Markie, Biz. "Alone Again." I Need a Haircut. By Biz Markie. MP3. Biz Markie, 1991.
"Matt" "Stop the U.S. Orphan Works Act." Webmaster-Source | Blogging Tips, Webmaster Resources, Tutorials, and More. 14 Jan. 2009. 01 Feb. 2009 .
"Matt" "Stop the U.S. Orphan Works Act." Webmaster-Source | Blogging Tips, Webmaster Resources, Tutorials, and More. 28 Jan. 2009 .
"Orphan Works." U.S. Copyright Office. 01 Feb. 2009 .
O'Sullivan, Gilbert. "Alone Again (Naturally)." Alone Again (Naturally). By Gilbert O'Sullivan. MP3. Gordon Mills, 1972.
Schumacher, Thomas G. "`This is a sampling sport':1 digital sampling, rap music and the law in cultural production -- Schumacher 17 (2): 253 --." Media, Culture & Society. 1995. Sage Journals Online. 31 Jan. 2009 .
"Seeing Sound, Hearing Image." M/C Journal. June 1999. 26 Jan. 2009 .
Shepherd, John. Music as Social Text. Oxford: Polity P, 1991.
Wardzinsky, Geoff. "Interview with Geoff Wardzinski, lawyer." Online interview. 31 Jan. 2009.