Steal this Article - Cheating Week on BTR


I had this idea the other day to start up a record shop called “Samples N Things,” where I would sell obscure records and CDs and make note on each one recommending key moments to snatch loops and snippets. Then I’d market the place to young music producers who wanted to “dig in the crates” and “find old vinyl” so they could create a unique sound out of music that couldn’t make the record label grade back when that sort of thing mattered. The place would also have books on DIY music, DAW production manuals, and occasional guest spots from notable producers in hip-hop, post-dubstep, and Panda Bear imitators who could talk at length about their nostalgic visions of childhood and how it informs their artistic purposes. Those with traditional music backgrounds would scoff at the store as a cheater’s paradise, a place where non-musicians go to feel like they’re apart of something larger than passive consumerism.

Frederic Jameson, a prominent scholar of postmodernism and its badgering discontents, says in his essay “Postmodernism and Consumer Society” that “pastiche is blank parody, parody that has lost its sense of humor.” He wrote this in 1991, the year that hip-hop took American music hostage and didn’t await a response until about 10 years later when companies realized there was serious money in the art form. He was looking at a lot of contemporary music at the time, but he was prescient in his ability to foresee a music monoculture in America where people were unable to describe what genre of music was playing on the radio. What is Lady Gaga? What is Black Eyed Peas, Bon Iver, all these acts who speak to those who’ve been through the ropes of rock through hip-hop and come out wondering what’s next? You’ve heard it: I listen to…everything, I guess – except country. There’s a reason for that last part which I can’t explain in print without eventually calling for another American civil war, but the end-piece of pop music is in the humorless art of pastiche.

Pop musicologist Simon Frith often talks about the “postmodern condition” extending into the pop music world through his notion that “by the end of the 1970s there was no music a rock musician (however young) could make that did not refer back, primarily, to previous rock readings; the music was about itself now, whether it liked it or not.”[i] If Frith is right and the cycle is complete, we may settle in to the center now and begin plucking from the circumference, measuring radii and attaching sub-meanings through confluence and other fraught attempts at subjectivism that force listeners to search for pieces from the past. DJ Shadow’s Entroducing contains an entire library of music parcels that, in a way, introduced past genres, styles, and vintage sounds as the language of contemporary pop music.

By nature, pastiche collects (consciously or subconsciously) the items that most affected its author in a sort of homage to those very items, a ‘thank you’ for allowing the author to absorb those messages. Parody, on the other hand, pokes fun at an author’s work by reimagining some qualitatively significant part of it in a humorous or scathing way.

Legally speaking, postmodernism has little protection in US courts, especially when artists are commercializing recycled samples without proper licensing agreements. American copyright law in music usually comes down to a de minimis ruling, where the judge, accompanied by an expert musicologist (who is hired to translate between music and language), determines whether or not the borrowed content in question is qualitatively significant enough to infringe. For example, Sleigh Bell’s “Rill Rill” sampled the Funkadelic song from Maggot Brain, “Can You Get to That,” but because it was licensed and credited, they did not have to go to court. Following the old copyright adage, “it is better to license than to litigate,” Sleigh Bells realized the sample was too distinctive a phrase from Funkadelic’s catalogue to risk the extensive legal fees. Plus, they got it on Gossip Girl, which must have paid those licensing bills right quick. People complain of the laziness of this tactic of sampling, but in reality, a sampled sound from a record is just as viable as a sampled sound from a synthesizer, it just happens to have been copy protected.

In the 1994 landmark copyright case Campbell v. Acuff-Rose Music, Inc. 2 Live Crew was sued for releasing a parody of Roy Orbison’s “Oh, Pretty Woman” after being denied legal permission by Acuff-Rose. Justice Souter concluded that 2 Live Crew’s version was distinctive and clever enough to pass as parody, stating that the end of the song “can be taken as a comment on the naivete of the original of an earlier day, as a rejection of its sentiment that ignores the ugliness of street life and the debasement that it signifies.”[ii] Sure, maybe Luke Skywalker wasn’t consciously thinking about his aims in such an intellectualized manner – who knows – but the effect of the parody remains the same. If pastiche is humorless parody as Jameson says, then parody can be considered pastiche with a political or intentional goal. Utility is given to parody, making it much easier for courts, markets and their consumers to comprehend, while pastiche’s unconscious fiddling with the past is a play too close to the chest of its author for these institutions to wrap their language around.

As nineteenth century American Supreme Court Justice Joseph Story wrote about the 2 Live Crew case, to determine fair use the court must “look to the nature and objects of the selection made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or superseded the objects, of the original work.” [iii] There was doubtful a market intersection of 2 Live Crew fans and Roy Orbison fans, and it would be hard to prove it even if there were. Musicians rarely think about money while they’re recording (unless you’re Scott Storch), and the courts are pretty understanding of this.

In Waits v. Frito-Lay, Inc. in 1988, the food company that turns boredom into love handles used the Tom Waits song “Step Right Up” to sell SalsaRio Doritos because they thought the song (a parody of advertisements) adequately represented the attitude of Doritos chips. When Mr. Waits heard the commercial he said fuck-off, so Frito-Lay returned in kind by hiring an impersonator to record the track in his stead. Waits, an outspoken proponent of musicians not dealing with marketers no matter how dire the times, won $2,475,000 in damages, $2 million of which was awarded specifically for “voice appropriation,” a defense made famous by Bette Midler’s 1990 case against Ford Motors who tried the same trick. Frito-Lay may have been able to get away with fair use if they had written a parody to Tom Waits’ parody, but they found that blowing people’s toilets up with their product was better than blowing their minds with an ad that parodied itself by paying an impersonator to sing a song parodying a parody of a song sung by a musician parodying his position as a musician by impersonating a salesman. BOOM!

On the other side of the sampling highway is the political, subversive conception that occurred in the late 70s and 80s. Rap music’s origins were socially consequential and, compared to a lot of what is happening today in response to hip-hop, more artistically pure than the producers who can afford a high-class studio but still choose to rip off old records and add shitty 808s for a contrived vintage effect. The equipment used was what they had on hand, or what friends and family had, the inspiration was their environment, and the deliverance was decidedly subversive and definitely not “politically correct.” The ensuing politics of hip-hop were organic to the extent that the social consciousness era in rap from 1979 to about 1992 did not need political backing or non-profit sponsorships, as the communities embraced the messages as part and parcel to their experiences.  At first we had prescriptive rap (Public Enemy, et. al – and I don’t mean purple drank prescription rap) then when that failed, descriptive rap (NWA, et. al first person street narratives), and when that failed, the commercial rap took over and here we are with Kanye West playing one part Mitt Romney and one part Jackson Pollock. Through all these eras, the past has been a library and a tool of sounds, messages, and feelings that the more honest musicians use to navigate the present with the comforts of the past. Sampling as an instrument of recycling and bricolage, in my mind at least, is not cheating if it’s done correctly.

The pastiche culture has created a need to look in directions other than straight ahead, and like Hollywood film, music is recycling older genres, parsing through what worked and what didn’t, and reinventing old brands to draw in lost audiences while coaxing young listeners into the circuit of the renewable hip. It is a convoluted but reliable strategy to usher both new and old audiences into an infinite loop of common narratives and expressions where only the passage of time has command over how each sound is received.

That is the essence of postmodernism: the grand borrowing narrative of nomadic consumerism that itches always at the scab of the old to ensure we don’t ever have to be subject to the hindsight of a scar.

Theorists like Frederic Jameson have expounded on this extended point of no return in capitalism, wherein lies “the ultimate squaring of the circle, the triumph of instrumentalization over that “finality without an end” which is art itself, the steady conquest and colonization of the ultimate realm of non-practicality, of sheer play and anti-use, by the logic of the world of means and ends.”[iv] It is a resoundingly cynical Marxist approximation of our commodified lives, repelling any overly optimistic view on how we interact with our art and our world, but today it makes more sense than ever: people are “stealing” music online, and still the mainstream has not discussed the possibility of dissolving the exploitative markets surrounding music and creativity.

Here’s the law’s answer to our anxieties:

“We must take care to guard against two extremes equally prejudicial; the one, that men of ability, who have employed their time for the service of the community, may not be deprived of their just merits, and the reward of the ingenuity and labour; the other, that the world may not be deprived of improvements, nor the progress of the arts be retarded.”[v]

Lord Mansfield could not have said it better: let’s make sure that there can still be progress in this country, but let’s try our best not to make it retarded progress.

Written by: Jakob Schnaidt

[i] Mitchell, Tony

[ii] Rosen, Ronald S., Music and Copyright, Ronald S. Rosen Oxford University Press (Page 297)

[iii] Folsom v. Marsh, 9 F. Cas. 342 248 (C.C. Mass. 1841) (No. 4901). (Page 297)

[iv] Jameson, Frederic 132 Reification and Utopia

[v] Rosen, Ronald S., Music and Copyright, Lord Mansfield in Sayre v. Moore (page 13)