This article was originally published on THUMP Canada.
In May 2016, Germany's highest court ruled in favor of an artist who sampled percussion from Kraftwerk's 1977 song "Metal On Metal," declaring the impact on the krautrock band did not outweigh "artistic freedom." The same week, a United States judge ruled that the two second "horn hit" sampled in Madonna's "Vogue" qualified as "de minimis," and therefore was too short to be considered of any consequence. These decisions contradicted the precedent set by two major lawsuits in the US regarding copyright law, 1991's Grand Upright Music, Ltd. v. Warner Bros. Records Inc. and 2005's Bridgeport Music, Inc. v. Dimension Films. In their likening of sampling to flat-out theft, neither case did much to advance how copyright is understood or policed. Although we still don't have fair and equitable sampling laws for songwriters or rights-holders, both of the former verdicts were hailed as steps in the right direction, recognizing nuances of the art and practice that have historically been ignored.
Nearly 30 years ago, Toronto composer John Oswald anticipated these questions around authorship, originality, and copyright that we're still grappling with today, with his controversial work Plunderphonic. "Plunderphonics" is the term he created in a 1985 essay on the subject to describe his technique of sampling or "electro-quoting." The accompanying album of the same title is comprised of songs made entirely of such electro-quotes, which he distributed for free like a Canadian avant-garde precursor to Girl Talk. Despite ensuring his sample sources were properly credited, Oswald's project drew the attention of the recording industry and their lawyers, who served him with numerous cease-and-desist letters. The threat of legal action was very real, as sampling had yet to be tested in court, but the threat his work posed to copyright was even greater, affirming just how integral sampling would become in songwriting practice.
"It seemed like a risk. It seemed like a risk worth taking," Oswald tells THUMP over coffee in a Toronto bakery. His introduction to sampling started early at the age of nine, when his parents got him a reel-to-reel player, but it was his time at Vancouver's Simon Fraser University during the 1970s that showed him the possibilities and ethics of the art form. There, he worked with the research group World Soundscape Project, led by R. Murray Schafer, as they listened to and recorded sounds from their surroundings, like church bells or foghorns, to use in their compositions. Oswald says he appreciated the fact that Schafer and his team wouldn't disguise their source material, and that the point of using found sounds in their compositions was that they would be recognizable to the listener.
Things got messier when his source-material shifted from fog horns to pop songs, though he would argue that the latter was just another kind of surrounding. In his 1985 essay, "Plunderphonics, or Audio Piracy as a Compositional Prerogative," he argued that copyright law prevents the act of quotation in music. "Musical language has an extensive repertoire of punctuation devices but nothing equivalent to literature's " " quotation marks," he wrote. "Without a quotation system, well-intended correspondences cannot be distinguished from plagiarism and fraud." He cited the long history of the tape recorder being used as an instrument in musique concrète as an example of already established practices of quotation in music culture that didn't raise any copyright red flags. Technological advances like digital samplers and cassette tapes were making it easier and easier for creators to sample or quote, while copyright law was working to contravene the practice.
Three years later, Oswald decided to self-release a four-song vinyl EP of his plunderphonic material, which featured transformations of Dolly Parton, Igor Stravinsky, Count Basie, and Elvis Presley. He gave copies of the EP to radio stations, libraries, and anyone who asked, following up the project with a full-length CD of 25 compositions in 1989. Again he chose to give proper credit to his source material, and offered the album to whoever wasn't turned off by the artwork, an image of Michael Jackson's head pasted on the body of a naked white woman. Oswald describes his reconfiguration of the American singer's chart-topping hit "Bad," dubbed "Dab," as one of the most complicated pieces on the record. It starts off sounding familiar enough with Jackson's original memorable bassline hook guiding the song, but the phasing technique the composer used to edit the original starts to rear its head, and that hook hiccups as the pop star's voice becomes a spectral version of itself.
It's unclear whether it was the provocative cover or the music that got the attention of the Canadian Recording Industry Association, but after releasing Plunderphonic in November 1989, Oswald was served with a cease-and-desist letter a month later on Christmas Eve. He recalls getting several phone prior calls from CRIA president Brian Robertson, who had a lot of questions for him, but was cagey about why he was so curious. (THUMP reached out to Music Canada but they declined to comment. Robertson retired as president in 2009, shortly before the CRIA rebranded as Music Canada.)
The first cease-and-desist sent by Toronto-based law firm Cassels, Brock & Blackwell, ordered that he track down every copy of the CD he'd distributed, an impossible task given his DIY methods. After retaining a lawyer, Oswald negotiated a settlement that involved handing over all of remaining copies in his possession to the CRIA to be destroyed, and "other stipulations that were trying to protect people that already had copies of the record." Ironically, Jackson had his own legal trouble two years later, after sampling the Cleveland Orchestra on Dangerous track "Will You Be There," without proper credit or licensing. The suit was settled out of court for an unknown sum and the orchestra was credited in subsequent issues of the album. Needless to say, Jackson and his parent company Sony were not asked to destroy all remaining copies of the infringing record.
The stark difference between how the pop star's case was dealt with, and the threats brought against Oswald, is indicative of an industry wide attitude that Toronto-based lawyer Reuven Ashtar points out is the reason why copyright laws are still trapped in the 1970s. In a widely-cited paper from 2009, explaining why both the Grand Upright and Bridgeport decisions are restrictive to sampling practice, Ashtar argues there's a pervading trend of copyright owners pushing to settle cases out of court to avoid "the introduction of transformative findings." Had Jackson and Sony not settled out of court with the Cleveland Orchestra, the judge's likely decision in favour of the latter would have influenced future sampling-related cases as a new precedent, transforming the way copyright laws are enforced. Whereas settlements have no effect on the outcome of future cases or court decisions.
Major label artists who have benefitted from sampling in their own music have zero incentive to protect sampling practice and actually profit from its uneven enforcement, using it like an "anti-competitive ploy."
Further, Ashtar notes that major label artists who have benefitted from sampling in their own music have zero incentive to protect sampling practice and actually profit from its uneven enforcement, using it like an "anti-competitive ploy." In short, these bigger artists and labels are purposely skewing the law in their favour, hindering legislation's growth and development toward fair use, and letting the two most anachronistic court rulings on sampling stand as absolute.
Outside the courtroom, major labels have less control. In an email exchange, Ashtar drew attention to a 2013 Oklahoma State University study that used Girl Talk's album All Day as a data set to analyze the economic impact his recording had on the material he sampled. By looking at the economic performance of the 400 records the Pittsburgh DJ sampled before and after he sampled them, author W. Michael Schuster II was able to reason that the practice brought more attention to its source material. This undermined the age-old argument that sampling was economically detrimental, the pervading logic that informed the decision to have the records Oswald was distributing freely, destroyed.
One doesn't have to look far to see the study's conclusion in practice. The website WhoSampled indexes not only samples, but remixes and interpolations, while the community of volunteers behind Wikimedia also work to source samples in any given recording, as well as list any personnel who played on, produced or contributed to a work. These nuances of authorship are still a long way away from being reflected in copyright legislation. Ashtar is optimistic that the Kraftwerk and Madonna decisions are steps in the right direction and hopes they mean "a dawning of understanding that we need a more nuanced understanding that artistic and cultural outputs depend on history," but points to the current "split" in the US courts on decisions like these as a roadblock. "So the Supreme Court will need to step in at some point to definitively settle things," he says.
While the legal affair put an end to Oswald's DIY self-distributing days, it didn't spell the end for Plunderphonic or the technique at its centre. Though the masters were destroyed, the album became a treasured underground classic, as fans dubbed tapes and copied CDs of their own from the 700-some-odd copies that managed to escape the CRIA. In 2001, the album was re-released in a boxed set format with different album art by American label Seeland, which is run by Negativland, a band well-known for inviting the kind of legal troubles Oswald did his best to avoid.
Not that the Canadian composer hasn't tempted fate once or twice since. Four years after his run in with the CRIA, he was commissioned by American composer John Zorn to make another plunderphonic record, entitled Plexure. The source material is an astonishing 5,000 tape samples taken from familiar pop songs released in the "compact disk era," which pass by in a matter of seconds, resulting in a sound that's not unlike fiddling with a radio dial. The CRIA did not come knocking again.
Throughout the 90s he continued his work, commissioned by Elektra Records to plunder their back catalog for Rubáiyát, and by the Grateful Dead for Grayfolded, where he "folded" 100 live performances of their song "Dark Star" into one gorgeous, 109-minute-long opus. More recently, in addition to his live improvised work on the saxophone, Oswald has composed works for the BBC, Kronos Quartet, and the Ensemble Modern of Frankfurt, all featuring his playful urge to turn the familiar into building blocks for something wholly new.
Plunderphonic was a bold statement, a line in the sand that was really a fissure, exposing just how vast the distance between our cultural appreciation for sampling and copyright laws really was. Through the record's destruction was a kind of defeat, it has continued to live on, in part because people continue to practice what Oswald preached. By provoking major labels into action through sampling their works with credit, but not permission, Plunderphonic became a proof-of-concept and a metaphor for why sampling and quotation in art is so important: his music had to be stolen, copied and redistributed in order to survive.
Michael Rancic is on Twitter.