Sampling illegal – what about the cultural remix?

Thomas discovered an article on winamp.com titled Free Sampling Killed by Court of Appeals:

On Tuesday, the 6th Circuit Court of Appeals in Cincinnati turned the playing field for digital sampling completely upside-down. The court ruled quite simply that any and all samples used must paid for, even if they sound completely different from their original. Previously, if a digital sample wasn’t identifiable from it’s original it was perfectly legal.

My first reaction was “So what?”. There’s a lot of rubbish and bad “music” out there. As always, there are notable exceptions like the Peter Kruder Richard Dorfmeister Remixes, but on an overall scale the availability of using samples from other tunes has not improved the quality level of contemporary music. Imho.

But then I remembered an article I recently read in the German issue of MIT’s Technology Review. The author, Lawrence Lessig, talked about a millenia-spanning cultural phenomenon which he called “remix”: taking snippets of existing (art-)work and combining it into new (art-)work. It’s been done for a long time. Rembrandt did it. Van Gogh did it. Leonardo da Vinci did it. John Lennon did it. Andy Warhol based a lot of his artwork on it. Lessigs article brought the obvious to my attention: the very concept of culture is remix!

Now even though I still think that most of the music based on samples is rubbish, I can agree that the artists help to form our culture. I also agree that every artist needs to make a living, and needs to get paid for what is created by him or her. The question is: where do you draw the line? Did Warhol pay license fees to Campbell? Did Campbell even think about asking for fees? Probably not. Do Kruder & Dorfmeister pay license fees to Madonna? Does she ask for licenses being paid? Probably yes. In both cases the original artwork is clearly visible/audible – yet in the first case Campell profits from Warhol, where in the second case Kruder & Dorfmeister profit from Madonna (your viewpoint may vary on this).

But that was not what the Circuit Court of Appeals in Cincinnati decided about. They decided that every sample, as untraceable and unrecognizable as it might be, has to be paid for. This makes cultural remix for music pretty much impossible, except if you have a big wallet. Creation of culture only for the rich.

Do we want this? Did the judges thought about that?

Addendum: Do you also feel a shiver down the spine when you encounter “freak coincidences”? Once finishing this blog entry, I paid a closer visit to Lessig’s blog and found that there was a reference to Warhol and Campell soup on it too. But maybe it’s just a very obvious example of remix…

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