Travel back 16 years to 1999 when one of the most influential figures in the American hip-hop scene released The Aftermath, a groundbreaking album that sold over 6.6 million units in four years. Number 23 on Billboard’s Hot 100 at the time, “The Next Episode” featured on Andrew ‘Dr. Dre’ Young’s album sunk itself so deep into the heart of hip-hop that more than a decade later it remains one of the producer’s most iconic sounds. But the discernible first nine seconds of the track that thousands accredit to Dr. Dre actually stem back three decades prior to the release of Dre’s album. Sampled from David McCallum’s 1967 track, “The Edge,” Dre’s piece rejuvenates the Scottish musician’s work by creatively construing it into the new record. This authentic compilation by Dre has since been resampled in at least 39 other tracks, including Kanye West’s “Power” and High City’s “What Would You Do?.”The art of sampling for producers like Dr. Dre, who built a dynasty atop which producers throughout the decades have followed, serves as a method by which producers cultivate a realm of musical preservation while embedding their own creativity into the original track’s legacy. But what exactly defines the legal constructs of sampling? Take, for example, Dr. Dre’s “The Next Episode” and “Let’s Get High” from the same legendary album. Why has one continuously been renowned while the other resulted in a 1.5 million dollar lawsuit against the producer?
Sampling? What is Sampling?
In “Sampling Ethics,” writer and lecturer Joseph Schloss debates the ethicality of sampling, particularly focusing on concepts of “biting,” “flipping,” and “parodying”. Because of the widespread nature of sampling within the hip-hop industry, the ethical basis of an artist’s originality lies within his or her creative nature—to what degree is the new track an artistically modified supplement of the original? Producer DJ Kool Akiem believes that biting, the appropriation of other hip-hop artists’ tracks, is a root of social repercussion in the music industry. As referenced by Schloss, Akiem provides an example of biting in production, stating:
“I’m not gonna take two elements of something that somebody else took. Like, if somebody samples this James Brown piece and then they put the “Substitution” [drunk break] on top of that? I won’t do that. To me, that’s biting.”
Although resampling a recently sampled segment is usually a taboo, exceptions to the inherent rule of thumb include parodying or flipping, the alteration of material in one manner or another. Still, coincidental sampling—when one producer creates a track similar to that of another producer around the same time—obscures the thin line between pure coincidence and biting. As Schloss notes, “[A producer] must always be prepared to defend one’s creativity, and this requires standards.” Unlike other genres of music, where originality stems from creating a completely authentic piece, hip-hop garners much of its substance from previously produced tracks, thus relying on a completely different set of standards, namely the no “biting” rule (Schloss 2004, 107).
Originality and Sampling
Schloss argues that music sampling, the act of integrating one sound recording into another, remains a distinguishable characteristic of hip-hop and a mark of purism (Schloss 2014, 64). For instance, Dr. Dre has sampled over 825 tracks while DJ Premier exceeds 1,450.
Though traditional scholars may condone the lack of live instrumentation in hip-hop, for producers of the genre, the aesthetic pleasure of sampling originates from the fusion of samples rather than the roots of the sound. Sampling, thereby, acts as an artistic enhancement to the quality of the track. In contrast to common preconceptions, live instrumentation actually deteriorates the sound authenticity to producers like Jack One, who notes, “[Live music] just doesn’t sound authentic…There’s something about the way the old records sound when they’re put together right. You can’t really recapture ’em when you play [live].”
In fact, as indicated in Michael P. Jeffries’ essay “Hip-hop authenticity in black and white,” music audiences tend to focus their attention initially to the beat of a track and then to the accompanying vocals. However, in identifying a favorable beat, listeners lean towards specific musicians rather than the objective formalities of meter, harmony, etc. Note that when members of an audience analyze specific aspects of the piece, they observe the artist’s lyrical quality and not the track’s tonal sounds (Jeffries 2011, 121).
Case Study of Kanye West’s “Gold Digger”: This iconic song (top), which has been featured in thousands of Spotify playlists, is sampled from Ray Charles’ “I Got A Woman” (middle), which is in turn sampled from The Southern Tones’ “It Must Be Jesus” (bottom). Sample-ception? I think so.
But is the barrier between sampling and live instrumentation so stringent for all producers? The Wu-Tang Clan’s the RZA, unlike many other hip-hop producers, utilizes both methods of production in his work. In an interview with MTV’s Mixtape Daily, RZA recalls an incident which inspired him to delve into the technical aspects of music. He especially articulates the importance of differentiating between music generally and hip-hop specifically by balancing sampled and sample-free tracks. He expresses in the interview, “It’s unfair sometimes for us to have success on things when we haven’t paid our dues. So even though I paid my dues to hip-hop, I hadn’t paid my dues to music, and so I went and started studying [music] theory.” RZA, who has a history of dealing with sampling infringement lawsuits, conceives of hip-hop as a territory ideally crafted of original and sampled sounds.
Nevertheless, the majority of hip-hop generally strays from live instrumentation, contrary to other forms of music (i.e. classical, jazz), and thus shifts the musical viewpoint and engages its audiences and artists from a lateral landscape. Musical preference replaces musical technicality; producers desire sound how they want to hear it and not necessarily how it should sound. In essence, sampling holds an innate worth that transcends the need to focus on more traditionally technical creations of music (Schloss 2014, 67). Producers like The Neptunes’ Chad Hugo, who views sampling equipment as an instrument itself, even believe that the art of sampling instills a greater appreciation for live instrumentation. Hugo comments on the versatility of sampling in URB Magazine by noting, “When you sample, there are a million different ways you can manipulate one sound. There are only so many different ways you can play it with a live instrument.” Perhaps the true value of hip-hop originates not from what we hear but rather how we hear it and it is through the method of sampling that truly influences the “how.”
Cite It, Don’t Bite It
Sampling is a recursive process which can complicate retracing the original track. Take the example below of “I’m On One” (video on left), produced by DJ Khaled in 2011, that samples Drake’s “Trust Issues” and Treal Lee and Prince Rick’s “Throwed Off (Fuck Everybody).” After its release, DJ Khaled’s track was sampled in at least 22 other songs, including J. Cole’s “Power Trip” (video on right). As apparent, many distinct records feature non-distinct sounds.
I’M ON ONE – DJ Khaled: Sample appears at 1:26
POWER TRIP – J. Cole: Sample appears at 2:10
Hip-hop music has transitioned into a station of radical change, both in legal regards of sampling and socially (though the social impacts of hip-hop’s are not discussed in this researched piece). This maturation has consequently altered the music selection for the markets: whereas music audiences initially decided which music was “street legit” through their own personal purchases, the industry’s boardrooms now determine the music that will be sold to the public (Tate). Sampling could, however, be used to preserve “old” hip-hop with the process of reincorporating worn tracks as an escape means from the industry’s dictatorship.
But how can a producer avoid copyright and legally clear a sample? The first step, according to IndieHipHop.net, is to find the copyright owner, usually by searching the performing rights organizations’ websites, and then to obtain permission from both the copyright owner/publisher and the owner of the master recording. Normally, a cost will accompany the permission if granted.
Producers, however, did not always follow today’s steps to clearing a sample. When sampling increased in popularity in the 80’s into the beginning of the following decade, the legal basis of musical intellectual property remained a hazy arena in which producers and original ‘sound’ creators settled matters of copyright infringement without actually going to court (according to NPR). However, the 1991 case between Biz Markie and Gilbert O’Sullivan altered the ethical and legal basis of sampling. During this time, O’Sullivan accused Markie of copyright violation, claiming that Markie sampled portions of the 1972 single “Alone Again (Naturally)” without authorization. The case verdict finding Markie guilty significantly transformed the practice of creating sample-based recordings.
In more recent times, similar cases have continued to emerge, most notably in reference to works produced by American rapper and producer Timbaland. One case in particular arose in 2007 when audiences began to post videos accusing the producer of plagiarizing Finnish artist Janne Suni’s work, thus attracting mainstream attention. Facing lawsuits for allegedly violating intellectual property of Juni’s “Acid Jazz Evening” in his production of Nelly Furtado’s “Do It,” Timbaland went on air defending his work by distinguishing sampling and stealing. He affirmed that the sample in question was modeled from a video game, not Suni’s music. In the interview the producer also claimed, “Everybody samples from everyone everyday…I don’t know what’s public domain and what’s not,” and that he does not always have the time to research every track he uses. Though acquitted in the 2007 case and subsequent cases, Timbaland’s disregard for musical attribution continually concerns internet users like Diamanda, who publicly shamed Timbaland online for “biting” foreign artists’ works. As illustrated by this example, sampling and sampling ethics remain very enigmatic and perception-based fields wherein producers, even if ethically guilty of “biting,” may not always be legally guilty of intellectual theft.
Evolution and the Basics
The value and tradition of sampling remain an inherent aspect of hip-hop. From the N.W.A.’s piecing of previously produced tracks in its greatest hit “Straight Outta Compton” to J. Cole’s “G.O.M.D.” that models music from the early 90’s, producers throughout the decades–Marley Marl, J Dilla, Kanye West, Sounwave, 9th Wonder–have relied and continue to rely upon sampling for the production of the most groundbreaking music in the international hip-hop dominion. Dispute the ethics of sampling all you want, but one of two things remains certain–either great samples produce great music or great music dawns from well-construed samples.
Jeffries, M. P. 2011. “Hip-Hop Authenticity in Black and White” In Thug Life: Race, Gender, and the Meaning of Hip-Hop (pp. 117-123). Chicago: University of Chicago Press.
Schloss, J. G. 2014. “‘It just Doesn’t sound authentic’: Live instrumentation versus hip-hop purism” In Making beats: The Art of Sample-Based Hip-Hop (pp. 63-78). Middletown, Connecticut: Wesleyan University Press.
Schloss, J. G. 2004. “‘No biting’: One can’t sample material that has been Recently used by someone else” In That’s the Joint!: The Hip-Hop Studies Reader. (pp. 105-110), edited by Murray Forman & Mark Anthony Neal. New York: Routledge.
Tate, G. 2004. “Hip-hop Turns 30: Whatcha Celebratin’ For?” In That’s the Joint!: The Hip-Hop Studies Reader., edited by Murray Forman & Mark Anthony Neal. New York: Routledge.
*The “Relating Back” segments of this piece reference an online survey to which 76 students at Duke University, as well as other universities in the U.S., responded and which was conducted Nov. 12, 2015 until Nov. 14, 2015 by means of sharing a link to the Google Form on social media including Facebook and Twitter.