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What follows is a collection of essays about the biz, articulated through the legal and cultural legacies its inhabitants leave behind. Not "legal writing" or "music writing," per se (nor is this really a "blog"), posts draw from history and art, sociology and psychology, economics and evolution, and discuss music, law, and life writ large. Extensive footnotes at the end of each entry provide sources for assertions made and suggestions for furthering research.

Various people with varied motives, backgrounds, and abilities work together to give us the variety of sounds that shape the way we experience our world. This page is but one approach to understanding that process (and its result).


(If you're interested in contributing, email Loren to learn how.)


blogHeaderLoren Wells
The Drummer's Beat: A Noneconomic Look at Being Sampled
The situation is a no-win (for those who don't win, at least).
Why Stetsasonic's 1988 single, "All That Jazz," is rarely cited or discussed is a mystery. Its Wikipedia entry is uncannily sparse. Google searches return nothing but ring tones, lyrics, and (presumably illegal) "free mp3s." Perhaps the reference is just too obvious? That seems unlikely.


His all-time favorite sample: gavel patter.
Three years before the Southern District of New York skeptically heard Biz Markie's formal defense of unlicensed sampling (and rendered its famously biblical decree, "thou shalt not steal"), Stetsasonic addressed the virtues of the practice in song. "James Brown was old," they said, out of style until "Eric and Rakim came out with 'I Got Soul,' [bringing] back old [music] people could've forgot." Not thieves, they're artists, historians, and curators at once.

Modern legal scholars seem keen on Stetsasonic's arguments. Sampling recycles music in new ways, creating entirely new, innovative artistic works, and reintroducing outdated artists to new generations. Girl Talk and the flowering of hip-hop are universally cited as proof.

These arguments make sense, and they seem sound. But they're not. Sampled artists are rarely resurrected, despite the gospel's predictions. "All That Jazz," for example, was built on an obscure funk sample: Banbarra's 1975 record, "Shack Up." The song didn't bring them back, though Stetsasonic claimed it should. Banbarra were forgotten anyway.

In this, they are not alone. Like all bands, they're part of a greater story. Commentators spend so much time idealizing the culture of the underdog sampler (like Girl Talk), they've overlooked the culture of the underdog samplee (like Banbarra). This is that story, the untold story of the drummer's beat and Banbarra's forgotten brethren. Of which there are many.

The least (perhaps the most) we can do now, is talk about them. So that's exactly what I'll do.

The Drummer's Beat vs. Everyone.
"Dance to the Drummer's Beat" is not what you'd call a "hit record." Though it sold perhaps 100,000 copies when first released in 1978, today it's an obscurity. It has left no visible mark on music, culture, or history. But it certainly left an audible one.

"The Drummer's Beat" provided rhythmic samples for over forty tracks, beginning in the late 1980s, including those by UTFO, 2 Live Crew, N.W.A, DJ Jazzy Jeff & the Fresh Prince, Run-D.M.C., C+C Music Factory, Public Enemy, DJ Shadow, Fat Joe, the immutable Michael Jackson, and many more.

Herman Kelly, the song's creator, is currently broke, broken, and forgotten, living in Detroit.

Since at least 1991, Herman has kept alive an unprecedented legal effort, suing numerous publishers, labels, and artists (including the early '90s duo 2 Hyped Brothers and a Dog), for copyright infringement. Few musicians appear in court as often. But fewer have such dreadful track records.

See, Herman sucks at litigating.

Not a single case decided by a court of law has ended in his favor. It's entirely his own fault, too. Always appearing "pro se," he tends to ditch scheduled conferences. He presents incomplete legal accusations, and has a penchant for formality disasters; he once whited-out parts of a trial memo so he could use it again in another jurisdiction (look up "res judicata" if you need to). L.L. Cool J's "Mama Said Knock You Out" didn't sample Herman, though he sued L.L., claiming it did, in three nearly identical cases. On multiple occasions he sued defendants holding legitimate licenses.

So if Herman suffers from injustice, it's by his own hand. Legally speaking, that is.

Injustice comes in many forms, however.

The "trickle down" theory of fame.
When legal scholars and popular commentators speak of sampling, they do so in very specific manners and with specific implications, pushing Stetsasonic's argument by highlighting independent re-mixers with overflowing ingenuity but whose livelihoods are unjustly jeopardized by legal action, like SilviaO, Negativland, Dangermouse, most hip-hop pioneers, and, as always, Girl Talk.

Absurd music company litigation provides extra kindling, of course, like Universal suing the family of an eighteen-month old boy when they posted him dancing to Prince on YouTube, or Bridgeport Music, owner of many George Clinton-related compositions, flaying the industry with hundreds of complaints at once.

An overly litigious music industry is an off-putting thing, and in that way, the Banbarras and Herman Kellies of the world are no different than Bridgeport and Universal, seeking monetary compensation through (sometimes pointless) litigation.

(David Batiste and the Gladiators, a New Orleans funk band, sued P.M. Dawn. South African band Henry Ate, through their music publisher, sued Lil' John. Cymande, a 1970s British funk group, sued the Fugees. The Honey Drippers' publisher sued Run D.M.C. Smokey Johnson and Syl Johnson sued Silkk and Cypress Hill.)

A decent chunk of these suits are frivolous. But the plaintiffs' roster brings Stetsasonic's broken promises to mind. Samples were alleged to help those sampled, to "bring them back." Yet these artists are mostly known only to people who only know them mostly as samples. That's exactly the opposite of how "All That Jazz" said it would go down.

Should we be surprised? No.

Ancestor worship (or ancestor abuse).
Stetsasonic's claim that "sampling benefits the samples" is a nice theory, but a bit like Reaganomics. Drizzle some fame on samplers, and it "trickles down" to sampled masses below. That never works. Celebrity is hoarded by the upper echelon, and—as with Reaganomics—nothing of substance ever reaches the intended recipients.

Hip-hop historian Greg Tate calls sampling—perhaps the entire rap genre—a form of "ancestor worship." Colleagues agree, it's "a vehicle to recover, reclaim, and pay homage to earlier DJs, recording engineers, and African-American performers" (just like Stetsasonic said).

But ancestor worship isn't about using the past for our own purposes. It's about benefiting others, working to "ensure the ancestors' continued well-being and positive disposition."

In the ancient Levant, families would literally preserve the skulls of deceased kin, plaster on fake faces (using seashells for eyes), decorate them, and then display the heads in their homes. Egyptians took ancestral veneration to cultic extremes: families with proper means ritually provided necessities and set up fully-stocked, lavish dining tables for famished corpses. Even nearby statues remained well fed.

The "ancestor worship" analogy is weak at best. Unlike families living amid continual reminders, obscure and un-credited samples keep forebears out of sight. And while mummies slept beside a glutton's dream, samplers make no similar provisions today.

In 1996, when the Fugees released "The Score," their sextuple-platinum sophomore album, they had no intent on letting anyone—neither Cymande, who they sampled, nor the listening public—know where the beats and melodies originated. For over ten years thereafter, the Fugees and their label actively sought to suppress Cymande's legal bout for undeniably deserved acknowledgement.

That's more like "ancestor abuse" than anything else.

Funk bands are not gadgets.
Never receiving credit for creative contributions is one thing. And it's bad. But losing control of artistry altogether is worse.

Much time is spent discussing the artistic visions and transformative contributions of "remix culture." Theirs is an act of defiance, taking "somebody else's expression of reality"—in the words of KRS-1—"mutilating it" and giving it back. It's like a higher calling.

This rings true to many, because making music isn't just for fun or money. It's a purpose. John Coltrane, timeless innovator and godfather of "cool," speaks for anyone who's ever created anything artsy: "it's a spiritual expression of what I am—my faith, my knowledge, my being."

Better yet, it's a chance to "speak to listeners' souls."

Throughout history, artists have sought to express themselves in carefully crafted ways. For this reason, they've gasped at loss of control. Girltalk wants his music to be understood, appreciated, and legitimated "as is." What's so odd about his samples wanting the same thing?

Jaron Lanier—pioneering technological guru, "father of virtual reality," and proud musical composer—certainly does. Making music, he writes, is about artist and listener having "a chance at a connection." So when third parties plug the result into some "compound product" without consideration for his artistic motives, it deprives him—never mind the masher—of his chance to reach an audience with his own voice. Heart and soul become bit and byte; "it is no longer an expression of [his] life."


If I can't have him, no one will.
Fifteenth century composer Josquin des Prez pleaded for musicians not to alter his scores. In the 17th century, Miguel de Cervantes killed Don Quixote rather than have him "re-mixed," after an illicit Quixote sequel surfaced in Tarragona. Sir Arthur Conan Doyle knocked-off Sherlock Holmes for precisely the same reason.

Everyone runs into problems, both samplers and samplees, hoping to reach audiences with their own, unique voices. And that's not really an economic concern. It's an artistic one.

Oddly, they're alike in that way.

Ridiculous lawsuits prove nothing.
The story of "The Drummer's Beat" isn't a conclusion on its own. If anything, it's a counterpoint, a necessary balance to trumped-up claims of salvation through sampling. When dealing with mash-ups, re-mixes, crowd-sourcing, the whole "2.0" thing, people tend to get carried away. Commentators—particularly of the legal variety—polarize and pick a side.

One noticeably heated reply came from William Patry, well known legal scholar and copyright expert. In his recent book, "Moral Panics and the Copyright Wars," Patry sought to illustrate how corporations utilize hyperbolic moral accusations to ensure public sympathy, by using words like "pirate," for example. But he was comically unable to stop from doing exactly what he condemned in others. Bad guys don't just get carried away with analogies, he writes: "In their religious zeal to claim every tot and tittle of culture, copyright dwarves can see no further than their own megalomania, impoverishing all of us in the process." I counted the overblown metaphors in that sentence, and I recommend you do the same.

Stetsasonic's discussion back in 1988 was necessary. With a new genre gaining public appeal, soon to overtake popular culture, their place in music history—including "All That Jazz" and its message—was irreplaceable. But with twenty years' hindsight and new sample-based musical stylings filling iPods worldwide, what we need isn't vehemence. It's honesty.

Sampling doesn't boost obscure funksters' careers, especially when they're never given credit. The story is more complicated than big corporations suing indie geniuses. It's not about "ancestor worship," either. And while unrestrained borrowing may give 2.0 artists freedom to create, it doesn't honor everyone's artistic intentions.

There are positives to the spike in re-mix culture, and there are negatives, just like everything else. Emotional pleas drive idealistic movements and ensure book sales. But they do nothing for real, living people, like Herman Kelly, who know first hand how ideals fall short.

Sure, making sense of the future (personally) can be done theoretically.

But making the best of it (collectively) requires objectivity.
NOTES AND SOURCES ( click to reveal )
The situation is a no-win (for those who don't win, at least).
The title of this section is taken from a lyric in "All That Jazz.," lyrics for which can be found with a simple internet search, e.g., http://www.metrolyrics.com/talkin-all-that-jazz-lyrics-stetsasonic.… .

Biz Markie's biblical prohibition was taken from Grand Upright Music Ltd. v. Warner Bros. Records, Inc., 780 F. Supp. 182 (S.D.N.Y. 1991), which is among the most discussed early sampling cases. However, it wasn't Biz's first, nor his last. In 1990, Tuff City Records (owner of some Grandmaster Caz compositions) sued Biz for using Caz's backing tracks on a song titled almost identical to Caz's original. As in every case, the court found Biz liable. Grand Upright v. Warner Bros., while not the first case to litigate a sampling dispute, was the first case to discuss the practice at length. It is also the opinion where Biz presented his infamous defense, which the court restated as follows: "stealing is rampant in the music business and, for that reason . . . should be excused." Obviously, the court not only disagreed, but offered the above-mentioned dogmatic warning. Biz's sampling problems, however, never went away; he was sued once more in 1996 (Collister Alley Music, Inc. v. Warner Bros. Records Inc, 1996 WL 457294 (S.D.N.Y. 1996)) and again in 2006 (Young Manny Scretching v. Bizmont Entertainment, LLC, 2006 WL 1642336 (E.D. Pa. 2006).

My reference to "modern legal scholars" is intended to be broad. For a more specific discussion of their writings, and my reference to their reverence for the "underdog sampler," see the notes to The trickle down theory of fame and Ancestor worship (or ancestor abuse), which contain detailed discussions.

The Drummer's Beat vs. Everyone.
Herman Kelly appears in The Discography eight different times, more than most other artists. Little information is available online, so much of the information in this section is pulled from facts and anecdotes provided in court opinions, noted specifically below.

Estimations that "Dance to the Drummers Beat" sold 100,000 copies was found in from Kelly v. Two Live Crew, 1991 WL 184299 (6th Cir. 1991), though its veracity is in doubt.

The list of "over forty tracks" in which "Dance to the Drummer's Beat" was supposedly sampled, was taken from whosampled.com.

Herman's current location was discovered through various internet searches, phone book look-ups, etc. To keep his privacy, I'm not going to post my specific source or his contact information.

The complete list of final dispositions in Herman's lawsuits, including the artists he alleged sampled his works, include: Kelly v. Two Live Crew, 1991 WL 184299 (6th Cir. 1991) (2 Live Crew); Kelly v. L.L. Cool J., 23 F.3d 398 (S.D.N.Y. 1993) (L.L. Cool J and Marley Marl's publisher); Kelly v. Broadcast Music, Inc., 1994 WL 169716 (6th Cir. 1994) (no artist specified); Kelly v. Deco Records, 1995 WL 5864 (4th Cir. 1995) (2 Hyped Brothers and a Dog); Kelly v. MCA Music Publishing, Ltd., 1997 WL 113815 (S.D.N.Y. 1997) (no artist specified); Kelly v. Broadcast Music, Inc., 2000 WL 12112 (S.D.N.Y. 2000) (L.L. Cool J); Kelly v. EMI Blackwood Music Inc., 2007 WL 2327059 (S.D.N.Y. 2007) (no artist was specified, but Amerie released a song called "One Thing" in 2005 containing a James Brown sample, which Herman often thinks are his).

Regarding Herman's problems in court: he missed conferences/deadlines in the EMI (Amerie) and BMI lawsuits; he whited-out his trial memo in the 2 Hyped Brothers and a Dog lawsuit, which was dismissed for "res judicata"; he failed to allege jurisdiction in his MCA suit; and sued parties with valid licenses in both 2 Hyped Bros. and 2 Live Crew cases. Though only two L.L. Cool J suits appear in this database, the latter references a third, which is unavailable. The only favorable holdings Kelly ever received, in his first suit against L.L. Cool J, regarded Defendants' summary judgments on copyright and fraud claims, which were denied. Of course, Kelly later lost on the merits anyway.

The "trickle down" theory of fame.
"When legal scholars and popular commentators speak of sampling…": Personally, I feel this observation hardly needs support, since the discussions are so common. However, the prototypical example is LAWRENCE LESSIG, REMIX: MAKING ART AND COMMERCE THRIVE IN THE HYBRID ECONOMY (2008), which came out in the height of 2.0 excitement and reads as nothing short of a manifesto, discussing Girl Talk, SilviaO, Danger Mouse and Negativland, and whch provided the anecdote about Universal suing the boy's family (at 1-5). See also, DON TAPSCOTT AND ANTHONY D. WILLIAMS, WIKINOMICS: HOW MASS COLLABORATION CHANGES EVERYTHING 139-141 (2008), which contains another standard analysis.

Regarding Bridgeport's massive litigation campaign, "the original complaint, . . . alleged nearly 500 counts against approximately 800 defendants for copyright infringement and other state-law claims arising from music sampling," which was subsequently severed into 476 different court actions. Bridgeport Music, Inc. v. WB Music Corp., 520 F.3d 588, 589 (6th Cir. 2005).

The slew of cases references, and their holdings (briefly) are as follows: In Batiste v. Island Records Inc., 179 F.3d 217 (5th Cir. 1999), the Gladiators' publisher previously licensed P.M. Dawn to use their song "Funky Soul" as a sample. Batiste, the band's leader, sued under copyright, trademark, and state common law theories, but the court held his actions insufficient; the license barred copyright claims, the unlikelihood of consumer confusion barred trademark claims, and everything else fell outside the statute of limitations. In Urband & Lazar Music Pub., Inc. v. Carter, 2009 WL 799759 (E.D. La. 2009), the publisher for Karma Ann Swanepoel, lead singer and songwriter for Henry Ate, moved to compel Lil' Wayne and his associates to submit discovery materials bearing on gross revenues derived from his allegedly infringing "mix-tape." The court granted their motion. Cymande's lawsuit against The Fugees is discussed in the notes to Ancestor worship (or ancestor abuse), below. The Honey Drippers litigation was an absolute mess: plaintiffs were unable to show proof of copyright ownership, and the court found the Run D.M.C. songs allegedly sampling "Impeach the President" showed no signs of actual copying. Tuff 'N' Rumble Management, Inc. v. Profile Records, Inc., 1997 WL 470114 and 1997 WL 158364 (S.D.N.Y. 1997). The Syl and "Smokey" Johnson cases are too numerous to summarize here, but feel free to look them up in The Discography and research them yourself. Apparently, these artists are well-known as sources for hot samples; the cases above, for which court opinions were rendered, are merely representative.

Ancestor worship (or ancestor abuse).
The Tate quote was found in NEIL WEINSTOCK NETANEL, COPYRIGHT'S PARADOX 20 (2008), as was the supporting statement.

"Ancestor worship" was defined on http://en.wikipedia.org/wiki/Ancestor_worship. This definition closely mirrors the one on Dictionary.com.

References to ancestor worship in "the ancient Levant" were taken from AMIHAI MAZAR, ARCHAEOLOGY OF THE LAND OF THE BIBLE; 10,000-586 B.C.E., 47 (1992), and the Egyptian practices came from SIGFRIED MORENZ, EGYPTIAN RELIGION 203-204 (1992). Coincidentally, my undergraduate degree was in ancient history (my Honors Thesis was titled "Religious Diversity in the Ancient Near East"), so this area was of particular interest. Some ancient cultures literally believed that food offerings to dead relatives were necessary to keep them fed; i.e. without active veneration among the living, the dead would simply wander the underworld perpetually hungry, which is an interesting analogy for uncredited samples.

Cymande's lawsuit, Scipio v. Sony Music Entertainment, Inc., 173 Fed. Appx. 385 (6th Cir. 2006), is particularly telling. After the band learned of the Fugee's sample, they took legal action and a proposed settlement was drafted by the Defendants. Though Plaintiffs never signed the agreement, litigation dragged on, court-supervised negotiations went nowhere, and they eventually withdrew funds from an account set up by Defendants, according to the settlement. Defendants sought to dismiss the suit, alleging the withdrawal constituted ratification of the settlement. The court disagreed, and allowed the suit to continue. According to their Wikipedia entry they "reaped . . . financial rewards, as their music became a popular source for samplers." It fails to mention they weren't provided these rewards, but had to fight for years to get them.

Funk bands are not gadgets.
KRS-1's discussion of sampling was found on the DVD: Up From the Underground, TIME LIFE VIDEO: THE HISTORY OF ROCK N' ROLL (2004).

John Coultrane's discussion of musical purpose was found in a chapter appropriately called "Purpose," in TIM BLANNING, THE TRIUMPH OF MUSIC: THE RISE OF COMPOSERS , MUSICIANS AND THEIR ART (2008), at 115. The chapter presents musicians' move from the old patronage system to the commercial marketplace, discussing how artists' purposes behind the music changed, e.g., from pleasing patrons to selling sheet music to speaking "artistically."

Jaron Lanier's thoughts on controlling artist expression are in JARON LANIER, YOU ARE NOT A GADGET: A MANIFESTO 136-37 (2010).

Josquin des Prez's complaints about adaptation are in STUART ISACHOFF, TEMPERAMENT: HOW MUSIC BECAME A BATTLEGROUND FOR THE GREAT MINDS OF WESTERN CIVILIZATION 120 (2003). Don Quixote's untimely death, though perhaps common knowledge to anyone with a background in literature, was taken from ADRIAN JOHNS, PIRACY: THE INTELLECTUAL PROPERTY WARS FROM GUTENBERG TO GATES 9-11 (2010). That Sherlock Holmes died for the same reason, however, was verbally provided by CERL's office manager, Kate. I believed her, so I never looked it up.

Ridiculous lawsuits prove nothing.
The William Patry quote was found in WILLIAM PATRY, MORAL PANICS AND THE COPYRIGHT WARS 75 (2010). Patry is anything but alone in his approach. Jessica Litman, for example, once made the sweeping accusation that copyright is just "a device used by big conglomerates to put up unnecessary and unreasonable barriers between authors and the public." Jessica Litman, U.S.A. War and Peace: The 34th Annual Donald C. Brace Lecture, 53 J. COPYRIGHT SOC'Y U.S.A. 1, 19, 20 (2006). But similar statements can be found on almost any page of LESSIG, REMIX or NETANEL, COPYRIGHT'S PARADOX.