Abstract: Proponents of the free culture movement argue that contemporary, “over-zealous” copyright laws have an adverse affect on the freedoms of consumers and creators to make use of copyrighted materials. Lessig, McLeod, Vaidhyanathan, Demers, and Coombe, to name but a few, detail instances where creativity and consumer use have been hindered by copyright laws. The “intellectual land-grab” (Boyle, “Politics” 94), instigated by the increasing value of intangibles in the information age, has forced copyright owners to seek maximal protection for copyrighted materials. A propertarian approach seeks to imbue copyrighted materials with the same inalienable rights as real property, yet copyright is not a property right, because “the copyright owner … holds no ordinary chattel” (Dowling v. United States 473 US 207, 216 [1985]). A fundamental difference resides in the exclusivity of use: “If you eat my apple, then I cannot” but “if you “take” my idea, I still have it. If I tell you an idea, you have not deprived me of it. An unavoidable feature of intellectual property is that its consumption is non-rivalrous” (Lessig, Code 131). It is, as James Boyle notes, “different” to real property (Shamans 174). Vaidhyanathan observes, “copyright in the American tradition was not meant to be a “property right” as the public generally understands property. It was originally a narrow federal policy that granted a limited trade monopoly in exchange for universal use and access” (11). This paper explores the ways in which “property talk” has infiltrated copyright discourse and endangered the utility of the law in fostering free and diverse forms of creative expression. The possessiveness and exclusion that accompany “property talk” are difficult to reconcile with the utilitarian foundations of copyright. Transformative uses of copyrighted materials such as mashing, sampling and appropriative art are incompatible with a propertarian approach, subjecting freedom of creativity to arbitary licensing fees that often extend beyond the budget of creators (Collins). “Property talk” risks making transformative works an elitist form of creativity, available only to those with the financial resources necessary to meet the demands for licences. There is a wealth of decisions throughout American and English case law that sustain Vaidhyanathan’s argument (see for example, Donaldson v. Becket 17 Cobbett Parliamentary History, col. 953; Wheaton v. Peters 33 US 591 [1834]; Fox Film Corporation v. Doyal 286 US 123 [1932] ; US v. Paramount Pictures 334 US 131 [1948]; Mazer v. Stein 347 US 201, 219 [1954] ; Twentieth Century Music Corp. v. Aitken 422 U.S. 151 [1975]; Aronson v. Quick Point Pencil Co. 440 US 257 [1979] ; Dowling v. United States 473 US 207 [1985]; Harper & Row, Publishers, Inc. v. Nation Enterprises 471 U.S. 539 [1985]; Luther R. Campbell a.k.a. Luke Skyywalker, et al. v. Acuff-Rose Music, Inc. 510 U.S 569 [1994] .). As Lemley states, however, “Congress, the courts and commentators increasingly treat intellectual property as simply a species of real property rather than as a unique form of legal protection designed to deal with public goods problems” (1-2). Although section 106 of the Copyright Act 1976 grants exclusive rights, sections 107 to 112 provide freedoms beyond the control of the copyright owner, undermining the exclusivity of s.106. Australian law similarly grants exceptions to the exclusive rights granted in section 31. Exclusivity was a principal objective of the eighteenth century Stationers’ argument for a literary property right. Sir William Blackstone, largely responsible for many Anglo-American concepts concerning the construction of property law, defined property in absolutist terms as “that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the whole universe” (2). On the topic of reprints he staunchly argued an author “has clearly a right to dispose of that identical work as he pleases, and any attempt to take it from him, or vary the disposition he has made of it, is an invasion of his right of property” (405-6). Blackstonian copyright advanced an exclusive and perpetual property right. Blackstone’s interpretation of Lockean property theory argued for a copyright that extended beyond the author’s expression and encompassed the very “style” and “sentiments” held therein. (Tonson v. Collins [1760] 96 ER 189.) According to Locke, every Man has a Property in his own Person . . . The Labour of his Body and the Work of his hands, we may say, are properly his. Whatsoever then he removes out of the State that Nature hath provided and left it in, he hath mixed his Labour with, and joyned to it something that is his own, and thereby makes it his Property. (287-8) Blackstone’s inventive interpretation of Locke “analogised ideas, thoughts, and opinions with tangible objects to which title may be taken by occupancy under English common law” (Travis 783). Locke’s labour theory, however, is not easily applied to intangibles because occupancy or use is non-rivalrous. The appropriate extent of an author’s proprietary right in a work led Locke himself to a philosophical impasse (Bowrey 324). Although Blackstonian copyright was suppressed by the House of Lords in the eighteenth century (Donaldson v. Becket [1774] 17 Cobbett Parliamentary History, col. 953) and by the Supreme Court sixty years later (Wheaton v. Peters 33 US 591 [1834] ), it has never wholly vacated copyright discourse. “Property talk” is undesirable in copyright discourse because it implicates totalitarian notions such as exclusion and inalienable private rights of ownership with no room for freedom of creativity or to use copyrighted materials for non-piracy related purposes. The notion that intellectual property is a species of property akin with real property is circulated by media companies seeking greater control over copyrighted materials, but the extent to which “property talk” has been adopted by the courts and scholars is troubling. Lemley (3-5) and Bell speculate whether the term “intellectual property” carries any responsibility for the propertisation of intangibles. A survey of federal court decisions between 1943 and 2003 reveals an exponential increase in the usage of the term. As noted by Samuelson (398) and Cohen (379), within the spheres of industry, culture, law, and politics the word “property” implies a broader scope of rights than those associated with a grant of limited monopoly. Music United claims “unauthorized reproduction and distribution of copyrighted music is JUST AS ILLEGAL AS SHOPLIFTING A CD”. James Brown argues sampling from his records is tantamount to theft: “Anything they take off my record is mine . . . Can I take a button off your shirt and put it on mine? Can I take a toenail off your foot – is that all right with you?” (Miller 1). Equating unauthorised copying with theft seeks to socially demonise activities occurring outside of the permission culture currently being fostered by inventive interpretations of the law. Increasing propagation of copyright as the personal property of the creator and/or copyright owner is instrumental in efforts to secure further legislative or judicial protection: Since 1909, courts and corporations have exploited public concern for rewarding established authors by steadily limiting the rights of readers, consumers, and emerging artists. All along, the author was deployed as a straw man in the debate. The unrewarded authorial genius was used as a rhetorical distraction that appealed to the American romantic individualism. (Vaidhyanathan 11) The “unrewarded authorial genius” was certainly tactically deployed in the eighteenth century in order to generate sympathy in pleas for further protection (Feather 71). Supporting the RIAA, artists including Britney Spears ask “Would you go into a CD store and steal a CD? It’s the same thing – people going into the computers and logging on and stealing our music”. The presence of a notable celebrity claiming file-sharing is equivalent to stealing their personal property is a more publicly acceptable spin on the major labels’ attempts to maintain a monopoly over music distribution. In 1997, Congress enacted the No Electronic Theft Act which extended copyright protection into the digital realm and introduced stricter penalties for electronic reproduction. The use of “theft” in the title clearly aligns the statute with a propertarian portrayal of intangibles. Most movie fans will have witnessed anti-piracy propaganda in the cinema and on DVDs. Analogies between stealing a bag and downloading movies blur fundamental distinctions in the rivalrous/non-rivalrous nature of tangibles and intangibles (Lessig Code, 131). Of critical significance is the infiltration of “property talk” into the courtrooms. In 1990 Judge Frank Easterbrook wrote: Patents give a right to exclude, just as the law of trespass does with real property … Old rhetoric about intellectual property equating to monopoly seemed to have vanished, replaced by a recognition that a right to exclude in intellectual property is no different in principle from the right to exclude in physical property … Except in the rarest case, we should treat intellectual and physical property identically in the law – which is where the broader currents are taking us. (109, 112, 118) Although Easterbrook refers to patents, his endorsement of “property talk” is cause for concern given the similarity with which patents and copyrights have been historically treated (Ou 41). In Grand Upright v. Warner Bros. Judge Kevin Duffy commenced his judgment with the admonishment “Thou shalt not steal”. Similarly, in Jarvis v. A & M Records the court stated “there can be no more brazen stealing of music than digital sampling”. This move towards a propertarian approach is misguided. It runs contrary to the utilitarian principles underpinning copyright ideology and marginalises freedoms protected by the fair use doctrine, hence Justice Blackman’s warning that “interference with copyright does not easily equate with” interference with real property (Dowling v. United States 473 US 207, 216 [1985]). The framing of copyright in terms of real property privileges private monopoly over, and to the detriment of, the public interest in free and diverse creativity as well as freedoms of personal use. It is paramount that when dealing with copyright cases, the courts remain aware that their decisions involve not pure economic regulation, but regulation of expression, and what may count as rational where economic regulation is at issue is not necessarily rational where we focus on expression – in a Nation constitutionally dedicated to the free dissemination of speech, information, learning and culture. (Eldred v. Ashcroft 537 US 186 [2003] [J. Breyer dissenting]). Copyright is the prize in a contest of property vs. policy. As Justice Blackman observed, an infringer invades a statutorily defined province guaranteed to the copyright holder alone. But he does not assume physical control over the copyright; nor does he wholly deprive its owner of its use. While one may colloquially link infringement with some general notion of wrongful appropriation, infringement plainly implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud. (Dowling v. United States 473 US 207, 217-218 [1985] ). Copyright policy places a great deal of control and cultural determinism in the hands of the creative industries. Without balance, oppressive monopolies form on the back of rights granted for the welfare of society in general. If a society wants to be independent and rich in diverse forms of cultural production and free expression, then the courts cannot continue to apply the law from within a propertarian paradigm. The question of whether culture should be determined by control or freedom in the interests of a free society is one that rapidly requires close attention – “it’s no longer a philosophical question but a practical one”. References Bayat, Asef. “Un-Civil Society: The Politics of the ‘Informal People.’” Third World Quarterly 18.1 (1997): 53-72. Bell, T. W. “Author’s Welfare: Copyright as a Statutory Mechanism for Redistributing Rights.” Brooklyn Law Review 69 (2003): 229. Blackstone, W. Commentaries on the Laws of England: Volume II. New York: Garland Publishing, 1978. (Reprint of 1783 edition.) Boyle, J. Shamans, Software, and Spleens: Law and the Construction of the Information Society. Cambridge: Harvard UP, 1996. Boyle, J. “A Politics of Intellectual Property: Environmentalism for the Net?” Duke Law Journal 47 (1997): 87. Bowrey, K. “Who’s Writing Copyright’s History?” European Intellectual Property Review 18.6 (1996): 322. Cohen, J. “Overcoming Property: Does Copyright Trump Privacy?” University of Illinois Journal of Law, Technology & Policy 375 (2002). Collins, S. “Good Copy, Bad Copy.” (2005) M/C Journal 8.3 (2006). http://journal.media-culture.org.au/0507/02-collins.php 〉 . Coombe, R. The Cultural Life of Intellectual Properties. Durham: Duke University Press, 1998. Demers, J. Steal This Music. Athens, Georgia: U of Georgia P, 2006. Easterbrook, F. H. “Intellectual Property Is Still Property.” (1990) Harvard Journal of Law & Public Policy 13 (1990): 108. Feather, J. Publishing, Piracy and Politics: An Historical Study of Copyright in Britain. London: Mansell, 1994. Lemley, M. “Property, Intellectual Property, and Free Riding.” Texas Law Review 83 (2005): 1031. Lessig, L. Code and Other Laws of Cyberspace. New York: Basic Books, 1999. Lessing, L. The Future of Ideas. New York: Random House, 2001. Lessig, L. Free Culture. New York: The Penguin Press, 2004. Locke, J. Two Treatises of Government. Ed. Peter Laslett. Cambridge, New York, Melbourne: Cambridge University Press, 1988. McLeod, K. “How Copyright Law Changed Hip Hop: An Interview with Public Enemy’s Chuck D and Hank Shocklee.” Stay Free (2002). 14 June 2006 http://www.stayfreemagazine.org/archives/20/public_enemy.html 〉 . McLeod, K. “Confessions of an Intellectual (Property): Danger Mouse, Mickey Mouse, Sonny Bono, and My Long and Winding Path as a Copyright Activist-Academic.” Popular Music & Society 28 (2005): 79. McLeod, K. Freedom of Expression: Overzealous Copyright Bozos and Other Enemies of Creativity. United States: Doubleday Books, 2005. Miller, M.W. “Creativity Furor: High-Tech Alteration of Sights and Sounds Divides the Art World.” Wall Street Journal (1987): 1. Ou, T. “From Wheaton v. Peters to Eldred v. Reno: An Originalist Interpretation of the Copyright Clause.” Berkman Center for Internet & Society (2000). 14 June 2006 http://cyber.law.harvard.edu/openlaw/eldredvashcroft/cyber/OuEldred.pdf 〉 . Samuelson, P. “Information as Property: Do Ruckelshaus and Carpenter Signal a Changing Direction in Intellectual Property Law?” Catholic University Law Review 38 (1989): 365. Travis, H. “Pirates of the Information Infrastructure: Blackstonian Copyright and the First Amendment.” Berkeley Technology Law Journal 15 (2000): 777. Vaidhyanathan, S. Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity. New York: New York UP, 2003. Citation reference for this article MLA Style Collins, Steve. "‘Property Talk’ and the Revival of Blackstonian Copyright." M/C Journal 9.4 (2006). echo date('d M. Y'); ? 〉 〈 http://journal.media-culture.org.au/0609/5-collins.php 〉 . APA Style Collins, S. (Sep. 2006) "‘Property Talk’ and the Revival of Blackstonian Copyright," M/C Journal, 9(4). Retrieved echo date('d M. Y'); ? 〉 from 〈 http://journal.media-culture.org.au/0609/5-collins.php 〉 .

Abstract: In 1956, John Cage predicted that “in the future, records will be made from records” (Duffel, 202). Certainly, musical creativity has always involved a certain amount of appropriation and adaptation of previous works. For example, Vivaldi appropriated and adapted the “Cum sancto spiritu” fugue of Ruggieri’s Gloria (Burnett, 4; Forbes, 261). If stuck for a guitar solo on stage, Keith Richards admits that he’ll adapt Buddy Holly for his own purposes (Street, 135). Similarly, Nirvana adapted the opening riff from Killing Jokes’ “Eighties” for their song “Come as You Are”. Musical “quotation” is actively encouraged in jazz, and contemporary hip-hop would not exist if the genre’s pioneers and progenitors had not plundered and adapted existing recorded music. Sampling technologies, however, have taken musical adaptation a step further and realised Cage’s prediction. Hardware and software samplers have developed to the stage where any piece of audio can be appropriated and adapted to suit the creative impulses of the sampling musician (or samplist). The practice of sampling challenges established notions of creativity, with whole albums created with no original musical input as most would understand it—literally “records made from records.” Sample-based music is premised on adapting audio plundered from the cultural environment. This paper explores the ways in which technology is used to adapt previous recordings into new ones, and how musicians themselves have adapted to the potentials of digital technology for exploring alternative approaches to musical creativity. Sampling is frequently defined as “the process of converting an analog signal to a digital format.” While this definition remains true, it does not acknowledge the prevalence of digital media. The “analogue to digital” method of sampling requires a microphone or instrument to be recorded directly into a sampler. Digital media, however, simplifies the process. For example, a samplist can download a video from YouTube and rip the audio track for editing, slicing, and manipulation, all using software within the noiseless digital environment of the computer. Perhaps it is more prudent to describe sampling simply as the process of capturing sound. Regardless of the process, once a sound is loaded into a sampler (hardware or software) it can be replayed using a MIDI keyboard, trigger pad or sequencer. Use of the sampled sound, however, need not be a faithful rendition or clone of the original. At the most basic level of manipulation, the duration and pitch of sounds can be altered. The digital processes that are implemented into the Roland VariOS Phrase Sampler allow samplists to eliminate the pitch or melodic quality of a sampled phrase. The phrase can then be melodically redefined as the samplist sees fit: adapted to a new tempo, key signature, and context or genre. Similarly, software such as Propellerhead’s ReCycle slices drum beats into individual hits for use with a loop sampler such as Reason’s Dr Rex module. Once loaded into Dr Rex, the individual original drum sounds can be used to program a new beat divorced from the syncopation of the original drum beat. Further, the individual slices can be subjected to pitch, envelope (a component that shapes the volume of the sound over time) and filter (a component that emphasises and suppresses certain frequencies) control, thus an existing drum beat can easily be adapted to play a new rhythm at any tempo. For example, this rhythm was created from slicing up and rearranging Clyde Stubblefield’s classic break from James Brown’s “Funky Drummer”. Sonic adaptation of digital information is not necessarily confined to the auditory realm. An audio editor such as Sony’s Sound Forge is able to open any file format as raw audio. For example, a Word document or a Flash file could be opened with the data interpreted as audio. Admittedly, the majority of results obtained are harsh white noise, but there is scope for serendipitous anomalies such as a glitchy beat that can be extracted and further manipulated by audio software. Audiopaint is an additive synthesis application created by Nicolas Fournel for converting digital images into audio. Each pixel position and colour is translated into information designating frequency (pitch), amplitude (volume) and pan position in the stereo image. The user can determine which one of the three RGB channels corresponds to either of the stereo channels. Further, the oscillator for the wave form can be either the default sine wave or an existing audio file such as a drum loop can be used. The oscillator shapes the end result, responding to the dynamics of the sine wave or the audio file. Although Audiopaint labours under the same caveat as with the use of raw audio, the software can produce some interesting results. Both approaches to sound generation present results that challenge distinctions between “musical sound” and “noise”. Sampling is also a cultural practice, a relatively recent form of adaptation extending out of a time honoured creative aesthetic that borrows, quotes and appropriates from existing works to create new ones. Different fields of production, as well as different commentators, variously use terms such as “co-creative media”, “cumulative authorship”, and “derivative works” with regard to creations that to one extent or another utilise existing works in the production of new ones (Coombe; Morris; Woodmansee). The extent of the sampling may range from subtle influence to dominating significance within the new work, but the constant principle remains: an existing work is appropriated and adapted to fit the needs of the secondary creator. Proponents of what may be broadly referred to as the “free culture” movement argue that creativity and innovation inherently relies on the appropriation and adaptation of existing works (for example, see Lessig, Future of Ideas; Lessig, Free Culture; McLeod, Freedom of Expression; Vaidhyanathan). For example, Gwen Stefani’s 2004 release “Rich Girl” is based on Louchie Lou and Michie One’s 1994 single of the same title. Lou and One’s “Rich Girl”, in turn, is a reggae dance hall adaptation of “If I Were a Rich Man” from Fiddler on the Roof. Stefani’s “na na na” vocal riff shares the same melody as the “Ya ha deedle deedle, bubba bubba deedle deedle dum” riff from Fiddler on the Roof. Samantha Mumba adapted David Bowie’s “Ashes to Ashes” for her second single “Body II Body”. Similarly, Richard X adapted Tubeway Army’s “Are ‘Friends’ Electric?’ and Adina Howard’s “Freak Like Me” for a career saving single for Sugababes. Digital technologies enable and even promote the adaptation of existing works (Morris). The ease of appropriating and manipulating digital audio files has given rise to a form of music known variously as mash-up, bootleg, or bastard pop. Mash-ups are the most recent stage in a history of musical appropriation and they epitomise the sampling aesthetic. Typically produced in bedroom computer-based studios, mash-up artists use software such as Acid or Cool Edit Pro to cut up digital music files and reassemble the fragments to create new songs, arbitrarily adding self-composed parts if desired. Comprised almost exclusively from sections of captured music, mash-ups have been referred to as “fictional pop music” because they conjure up scenarios where, for example, Destiny’s Child jams in a Seattle garage with Nirvana or the Spice Girls perform with Nine Inch Nails (Petridis). Once the initial humour of the novelty has passed, the results can be deeply alluring. Mash-ups extract the distinctive characteristics of songs and place them in new, innovative contexts. As Dale Lawrence writes: “the vocals are often taken from largely reviled or ignored sources—cornball acts like Aguilera or Destiny’s Child—and recast in wildly unlikely contexts … where against all odds, they actually work”. Similarly, Crawford argues that “part of the art is to combine the greatest possible aesthetic dissonance with the maximum musical harmony. The pleasure for listeners is in discovering unlikely artistic complementarities and revisiting their musical memories in mutated forms” (36). Sometimes the adaptation works in the favour of the sampled artist: George Clinton claims that because of sampling he is more popular now than in 1976—“the sampling made us big again” (Green). The creative aspect of mash-ups is unlike that usually associated with musical composition and has more in common with DJing. In an effort to further clarify this aspect, we may regard DJ mixes as “mash-ups on the fly.” When Grandmaster Flash recorded his quilt-pop masterpiece, “Adventures of Grandmaster Flash on the Wheels of Steel,” it was recorded while he performed live, demonstrating his precision and skill with turntables. Modern audio editing software facilitates the capture and storage of sound, allowing mash-up artists to manipulate sounds bytes outside of “real-time” and the live performance parameters within which Flash worked. Thus, the creative element is not the traditional arrangement of chords and parts, but rather “audio contexts”. If, as Riley pessimistically suggests, “there are no new chords to be played, there are no new song structures to be developed, there are no new stories to be told, and there are no new themes to explore,” then perhaps it is understandable that artists have searched for new forms of musical creativity. The notes and chords of mash-ups are segments of existing works sequenced together to produce inter-layered contexts rather than purely tonal patterns. The merit of mash-up culture lies in its function of deconstructing the boundaries of genre and providing new musical possibilities. The process of mashing-up genres functions to critique contemporary music culture by “pointing a finger at how stifled and obvious the current musical landscape has become. … Suddenly rap doesn’t have to be set to predictable funk beats, pop/R & B ballads don’t have to come wrapped in cheese, garage melodies don’t have to recycle the Ramones” (Lawrence). According to Theodor Adorno, the Frankfurt School critic, popular music (of his time) was irretrievably simplistic and constructed from easily interchangeable, modular components (McLeod, “Confessions”, 86). A standardised and repetitive approach to musical composition fosters a mode of consumption dubbed by Adorno “quotation listening” and characterised by passive acceptance of, and obsession with, a song’s riffs (44-5). As noted by Em McAvan, Adorno’s analysis elevates the producer over the consumer, portraying a culture industry controlling a passive audience through standardised products (McAvan). The characteristics that Adorno observed in the popular music of his time are classic traits of contemporary popular music. Mash-up artists, however, are not representative of Adorno’s producers for a passive audience, instead opting to wrest creative control from composers and the recording industry and adapt existing songs in pursuit of their own creative impulses. Although mash-up productions may consciously or unconsciously criticise the current state of popular music, they necessarily exist in creative symbiosis with the commercial genres: “if pop songs weren’t simple and formulaic, it would be much harder for mashup bedroom auteurs to do their job” (McLeod, “Confessions”, 86). Arguably, when creating mash-ups, some individuals are expressing their dissatisfaction with the stagnation of the pop industry and are instead working to create music that they as consumers wish to hear. Sample-based music—as an exercise in adaptation—encourages a Foucauldian questioning of the composer’s authority over their musical texts. Recorded music is typically a passive medium in which the consumer receives the music in its original, unaltered form. DJ Dangermouse (Brian Burton) breached this pact to create his Grey Album, which is a mash-up of an a cappella version of Jay-Z’s Black Album and the Beatles’ eponymous album (also known as the White Album). Dangermouse says that “every kick, snare, and chord is taken from the Beatles White Album and is in their original recording somewhere.” In deconstructing the Beatles’ songs, Dangermouse turned the recordings into a palette for creating his own new work, adapting audio fragments to suit his creative impulses. As Joanna Demers writes, “refashioning these sounds and reorganising them into new sonic phrases and sentences, he creates acoustic mosaics that in most instances are still traceable to the Beatles source, yet are unmistakeably distinct from it” (139-40). Dangermouse’s approach is symptomatic of what Schütze refers to as remix culture: an open challenge to a culture predicated on exclusive ownership, authorship, and controlled distribution … . Against ownership it upholds an ethic of creative borrowing and sharing. Against the original it holds out an open process of recombination and creative transformation. It equally calls into question the categories, rifts and borders between high and low cultures, pop and elitist art practices, as well as blurring lines between artistic disciplines. Using just a laptop, an audio editor and a calculator, Gregg Gillis, a.k.a. Girl Talk, created the Night Ripper album using samples from 167 artists (Dombale). Although all the songs on Night Ripper are blatantly sampled-based, Gillis sees his creations as “original things” (Dombale). The adaptation of sampled fragments culled from the Top 40 is part of Gillis’ creative process: “It’s not about who created this source originally, it’s about recontextualising—creating new music. … I’ve always tried to make my own songs” (Dombale). Gillis states that his music has no political message, but is a reflection of his enthusiasm for pop music: “It’s a celebration of everything Top 40, that’s the point” (Dombale). Gillis’ “celebratory” exercises in creativity echo those of various fan-fiction authors who celebrate the characters and worlds that constitute popular culture. Adaptation through sampling is not always centred solely on music. Sydney-based Tom Compagnoni, a.k.a. Wax Audio, adapted a variety of sound bytes from politicians and media personalities including George W. Bush, Alexander Downer, Alan Jones, Ray Hadley, and John Howard in the creation of his Mediacracy E.P.. In one particular instance, Compagnoni used a myriad of samples culled from various media appearances by George W. Bush to recreate the vocals for John Lennon’s Imagine. Created in early 2005, the track, which features speeded-up instrumental samples from a karaoke version of Lennon’s original, is an immediate irony fuelled comment on the invasion of Iraq. The rationale underpinning the song is further emphasised when “Imagine This” reprises into “Let’s Give Peace a Chance” interspersed with short vocal fragments of “Come Together”. Compagnoni justifies his adaptations by presenting appropriated media sound bytes that deliberately set out to demonstrate the way information is manipulated to present any particular point of view. Playing the media like an instrument, Wax Audio juxtaposes found sounds in a way that forces the listener to confront the bias, contradiction and sensationalism inherent in their daily intake of media information. … Oh yeah—and it’s bloody funny hearing George W Bush sing “Imagine”. Notwithstanding the humorous quality of the songs, Mediacracy represents a creative outlet for Compagnoni’s political opinions that is emphasised by the adaptation of Lennon’s song. Through his adaptation, Compagnoni revitalises Lennon’s sentiments about the Vietnam War and superimposes them onto the US policy on Iraq. An interesting aspect of sampled-based music is the re-occurrence of particular samples across various productions, which demonstrates that the same fragment can be adapted for a plethora of musical contexts. For example, Clyde Stubblefield’s “Funky Drummer” break is reputed to be the most sampled break in the world. The break from 1960s soul/funk band the Winstons’ “Amen Brother” (the B-side to their 1969 release “Color Him Father”), however, is another candidate for the title of “most sampled break”. The “Amen break” was revived with the advent of the sampler. Having featured heavily in early hip-hop records such as “Words of Wisdom” by Third Base and “Straight Out of Compton” by NWA, the break “appears quite adaptable to a range of music genres and tastes” (Harrison, 9m 46s). Beginning in the early 1990s, adaptations of this break became a constant of jungle music as sampling technology developed to facilitate more complex operations (Harrison, 5m 52s). The break features on Shy FX’s “Original Nutta”, L Double & Younghead’s “New Style”, Squarepusher’s “Big Acid”, and a cover version of Led Zepplin’s “Whole Lotta Love” by Jane’s Addiction front man Perry Farrell. This is to name but a few tracks that have adapted the break. Wikipedia offers a list of songs employing an adaptation of the “Amen break”. This list, however, falls short of the “hundreds of tracks” argued for by Nate Harrison, who notes that “an entire subculture based on this one drum loop … six seconds from 1969” has developed (8m 45s). The “Amen break” is so ubiquitous that, much like the twelve bar blues structure, it has become a foundational element of an entire genre and has been adapted to satisfy a plethora of creative impulses. The sheer prevalence of the “Amen break” simultaneously illustrates the creative nature of music adaptation as well as the potentials for adaptation stemming from digital technology such as the sampler. The cut-up and rearrangement aspect of creative sampling technology at once suggests the original but also something new and different. Sampling in general, and the phenomenon of the “Amen break” in particular, ensures the longevity of the original sources; sampled-based music exhibits characteristics acquired from the source materials, yet the illegitimate offspring are not their parents. Sampling as a technology for creatively adapting existing forms of audio has encouraged alternative approaches to musical composition. Further, it has given rise to a new breed of musician that has adapted to technologies of adaptation. Mash-up artists and samplists demonstrate that recorded music is not simply a fixed or read-only product but one that can be freed from the composer’s original arrangement to be adapted and reconfigured. Many mash-up artists such as Gregg Gillis are not trained musicians, but their ears are honed from enthusiastic consumption of music. Individuals such as DJ Dangermouse, Gregg Gillis and Tom Compagnoni appropriate, reshape and re-present the surrounding soundscape to suit diverse creative urges, thereby adapting the passive medium of recorded sound into an active production tool. References Adorno, Theodor. “On the Fetish Character in Music and the Regression of Listening.” The Culture Industry: Selected Essays on Mass Culture. Ed. J. Bernstein. London, New York: Routledge, 1991. Burnett, Henry. “Ruggieri and Vivaldi: Two Venetian Gloria Settings.” American Choral Review 30 (1988): 3. Compagnoni, Tom. “Wax Audio: Mediacracy.” Wax Audio. 2005. 2 Apr. 2007 http://www.waxaudio.com.au/downloads/mediacracy 〉 . Coombe, Rosemary. The Cultural Life of Intellectual Properties. Durham, London: Duke University Press, 1998. Demers, Joanna. Steal This Music: How Intellectual Property Law Affects Musical Creativity. Athens, London: University of Georgia Press, 2006. Dombale, Ryan. “Interview: Girl Talk.” Pitchfork. 2006. 9 Jan. 2007 http://www.pitchforkmedia.com/article/feature/37785/Interview_Interview_Girl_Talk 〉 . Duffel, Daniel. Making Music with Samples. San Francisco: Backbeat Books, 2005. Forbes, Anne-Marie. “A Venetian Festal Gloria: Antonio Lotti’s Gloria in D Major.” Music Research: New Directions for a New Century. Eds. M. Ewans, R. Halton, and J. Phillips. London: Cambridge Scholars Press, 2004. Green, Robert. “George Clinton: Ambassador from the Mothership.” Synthesis. Undated. 15 Sep. 2005 http://www.synthesis.net/music/story.php?type=story & id=70 〉 . Harrison, Nate. “Can I Get an Amen?” Nate Harrison. 2004. 8 Jan. 2007 http://www.nkhstudio.com 〉 . Lawrence, Dale. “On Mashups.” Nuvo. 2002. 8 Jan. 2007 http://www.nuvo.net/articles/article_292/ 〉 . Lessig, Lawrence. The Future of Ideas. New York: Random House, 2001. ———. Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity. New York: The Penguin Press, 2004. McAvan, Em. “Boulevard of Broken Songs: Mash-Ups as Textual Re-Appropriation of Popular Music Culture.” M/C Journal 9.6 (2006) 3 Apr. 2007 http://journal.media-culture.org.au/0612/02-mcavan.php 〉 . McLeod, Kembrew. “Confessions of an Intellectual (Property): Danger Mouse, Mickey Mouse, Sonny Bono, and My Long and Winding Path as a Copyright Activist-Academic.” Popular Music & Society 28.79. ———. Freedom of Expression: Overzealous Copyright Bozos and Other Enemies of Creativity. United States: Doubleday Books. Morris, Sue. “Co-Creative Media: Online Multiplayer Computer Game Culture.” Scan 1.1 (2004). 8 Jan. 2007 http://scan.net.au/scan/journal/display_article.php?recordID=16 〉 . Petridis, Alexis. “Pop Will Eat Itself.” The Guardian UK. March 2003. 8 Jan. 2007 http://www.guardian.co.uk/arts/critic/feature/0,1169,922797,00.html 〉 . Riley. “Pop Will Eat Itself—Or Will It?”. The Truth Unknown (archived at Archive.org). 2003. 9 Jan. 2007 http://web.archive.org/web/20030624154252 /www.thetruthunknown.com/viewnews.asp?articleid=79 〉 . Schütze, Bernard. “Samples from the Heap: Notes on Recycling the Detritus of a Remixed Culture”. Horizon Zero 2003. 8 Jan. 2007 http://www.horizonzero.ca/textsite/remix.php?tlang=0 & is=8 & file=5 〉 . Vaidhyanathan, Siva. Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity. New York, London: New York University Press, 2003. Woodmansee, Martha. “On the Author Effect: Recovering Collectivity.” The Construction of Authorship: Textual Appropriation in Law and Literature. Eds. M. Woodmansee, P. Jaszi and P. Durham; London: Duke University Press, 1994. 15. Citation reference for this article MLA Style Collins, Steve. "Amen to That: Sampling and Adapting the Past." M/C Journal 10.2 (2007). echo date('d M. Y'); ? 〉 〈 http://journal.media-culture.org.au/0705/09-collins.php 〉 . APA Style Collins, S. (May 2007) "Amen to That: Sampling and Adapting the Past," M/C Journal, 10(2). Retrieved echo date('d M. Y'); ? 〉 from 〈 http://journal.media-culture.org.au/0705/09-collins.php 〉 .

Abstract: Nine Inch Nails have just released a new single; In addition to the usual formats, “The Hand That Feeds” was available for free download in Garageband format. Trent Reznor explained, “For quite some time I’ve been interested in the idea of allowing you the ability to tinker around with my tracks – to create remixes, experiment, embellish or destroy what’s there” (MacMinute 15 April 2005). Reznor invites creativity facilitated by copying and transformation. “Copy” carries connotations of unsavoury notions such as piracy, stealing, fake, and plagiarism. Conversely, in some circumstances copying is acceptable, some situations demand copying. This article examines the treatment of “copy” at the intersection of musical creativity and copyright law with regard to cover versions and sampling. Waldron reminds us that copyright was devised first and foremost with a public benefit in mind (851). This fundamental has been persistently reiterated (H. R Rep. (1909); Sen. Rep. (1909); H. R. Rep. (1988); Patterson & Lindberg 70). The law grants creators a bundle of rights in copyrighted works. Two rights implicated in recorded music are located in the composition and the recording. Many potential uses of copyrighted songs require a license. The Copyright Act 1976, s. 115 provides a compulsory licence for cover versions. In other words, any song can be covered for a statutory royalty fee. The law curtails the extent of the copyright monopoly. Compulsory licensing serves both creative and business sides of the recording industry. First, it ensures creative diversity. Musicians are free to reinterpret cultural soundtracks. Second, it safeguards the composer’s right to generate an income from his work by securing royalties for subsequent usage. Although s. 115 permits a certain degree of artistic licence, it requires “the arrangement shall not change the basic melody or fundamental character of the work”. Notwithstanding this proviso, songs can still be transformed and their meaning reshaped. Johnny Cash was able to provide an insight into the mind of a dying man through covering such songs as Nine Inch Nails’ “Hurt”, Depeche Mode’s “Personal Jesus” and Parker & Charles’ “We’ll Meet Again”. Compulsory licensing was introduced in response to a Supreme Court decision that deprived composers of royalties. Congress recognised: The main object to be desired in expanding copyright protection accorded to music has been to give to the composer an adequate return for the value of his composition, and it has been a serious and difficult task to combine the protection of the composer with the protection of the public, and to so frame an act that it would accomplish the double purpose of securing to the composer and at the same time prevent the formation of oppressive monopolies, which might be founded upon the very rights granted to the composer for the purpose of protecting his interests (H. R. Rep. (1909)). Composers exercise rights over the initial exploitation of a song. Once a recording is released, the right is curtailed to serve the public dimension of copyright. A sampler is a device that allows recorded (sampled) sounds to be triggered from a MIDI keyboard or sequencer. Samplers provide potent tools for transforming sounds – filters, pitch-shifting, time-stretching and effects can warp samples beyond recognition. Sampling is a practice that formed the backbone of rap and hip-hop, features heavily in many forms of electronic music, and has proved invaluable in many studio productions (Rose 73-80; Prendergast 383-84, 415-16, 433-34). Samples implicate both of the musical copyrights mentioned earlier. To legally use a sample, the rights in the recording and the underlying composition must be licensed. Ostensibly, acquiring permission to use the composition poses few obstacles due to the compulsory licence. The sound recording, however, is a different matter entirely. There is no compulsory licence for sound recordings. Copyright owners (usually record labels) are free to demand whatever fees they see fit. For example, SST charged Fatboy Slim $1000 for sampling a Negativland record (Negativland). (Ironically, the sample was itself an unlicensed sample appropriated from a 1966 religious recording.) The price paid by The Verve for sampling an obscure orchestral version of a Rolling Stones song was more substantial. Allan Klein owns the copyright in “The Last Time” released by The Andrew Oldham Orchestra in 1965 (American Hit Network, undated). Licence negotiations for the sample left Klein with 100% of the royalties from the song and The Verve with a bitter taste. To add insult to injury, “Bittersweet Symphony” was attributed to Mick Jagger and Keith Richards when the song was nominated for a Grammy (Superswell, undated). License fees can prove prohibitive to many musicians and may outweigh the artistic merit in using the sample: “Sony wanted five thousand dollars for the Clash sample, which … is one thousand dollars a word. In retrospect, this was a bargain, given the skyrocketing costs of sampling throughout the 1990s” (McLeod 86). Adam Dorn, alias Mocean Worker, tried for nine months to licence a sample of gospel singer Mahalia Jackson. Eventually his persistent requests were met with a demand for $10,000 in advance with royalties of six cents per record. Dorn was working with an album budget of a mere $40 and was expecting to sell 2500 copies (Beaujon 25). Unregulated licensing fees stifle creativity and create a de facto monopoly over recorded music. Although copyright was designed to be an engine of free expression1 it still carries characteristics of its monopolistic, totalitarian heritage. The decision in Bridgeport Music v. Dimension Films supported this monopoly. Judge Guy ruled, “Get a license or do not sample. We do not see this stifling creativity in any significant way” (397). The lack of compulsory licensing and the Bridgeport decision creates an untenable situation for sampling musicians and adversely impacts upon the public benefit derived from creative diversity and transformative works (Netanel 288, 331). The sobering potential for lawsuits, ruinous legal costs, injunctions, damages (to copyright owners as well as master recordings), suppresses the creativity of musicians unwilling or unable to pay licence fees (Negativland 251.). I’m a big fan of David Bowie. If I wanted to release a cover version of “Survive”, Bowie and Gabrels (composers) and BMI (publishers) could not prevent it. According the Harry Fox Agency’s online licensing system, it would cost $222.50 (US) for a licence to produce 2500 copies. The compulsory licence demands fidelity to the character of the original. Although my own individual style would be embedded in the cover version, the potential for transformation is limited. Whilst trawling through results from a search for “acapella” on the Soulseek network I found an MP3 of the vocal acapella for “Survive”. Thirty minutes later Bowie was loaded into Sonar 4 and accompanied by a drum loop and bass line whilst I jammed along on guitar and tinkered with synths. Free access to music encourages creative diversity and active cultural participation. Licensing fees, however, may prohibit such creative explorations. Sampling technology offers some truly innovative possibilities for transforming recorded sound. The Roland VariOS can pitch-eliminate; a vocal sample can be reproduced to a melody played by the sampling musician. Although the original singer’s voice is preserved the melody and characteristic nuances can be significantly altered: V-Producer’s Phrase Scope [a syst em software component] separates the melody from the rest of the phrase, allowing users to re-construct a new melody or add harmonies graphically, or by playing in notes from a MIDI keyboard. Using Phrase Scope, you can take an existing vocal phrase or melodic instrument phrase and change the actual notes, phrasing and vocal gender without unwanted artefacts. Bowie’s original vocal could be aligned with an original melody and set to an original composition. The original would be completely transformed into a new creative work. Unfortunately, EMI is the parent company for Virgin Records, the copyright owner of “Survive”. It is doubtful licence fees could be accommodated by many inspired bedroom producers. EMI’s reaction to DJ Dangermouse’s “Grey Album“ suggests that it would not look upon unlicensed sampling with any favour. Threatening letters from lawyers representing one of the “Big Four” are enough to subjugate most small time producers. Fair use? If a musician is unable to afford a licence, it is unlikely he can afford a fair use defence. Musicians planning only a limited run, underground release may be forgiven for assuming that the “Big Four” have better things to do than trawl through bins of White Labels for unlicensed samples. Professional bootlegger Richard X found otherwise when his history of unlicensed sampling caught up to him: “A certain major label won’t let me use any samples I ask them to. We just got a report back from them saying, ‘Due to Richard’s earlier work of which we are well aware, we will not be assisting him with any future projects’” (Petridis). For record labels “copy” equals “money”. Allan Klein did very well out of licensing his newly acquired “Bittersweet Symphony” to Nike (Superswell). Inability to afford either licences or legal costs means that some innovative and novel creations will never leave the bedroom. Sampling masterpieces such as “It Takes a Nation of Millions to Hold Us Back” are no longer cost effective (McLeod). The absence of a compulsory licence for sampling permits a de facto monopoly over recorded music. Tricia Rose notes the recording industry knows the value of “copy” (90). “Copy” is permissible as long as musicians pay for the privilege – if the resultant market for the sampling song is not highly profitable labels may decline to negotiate a licence. Some parties have recognised the value of the desire to creatively engage with music. UK (dis)band(ed) Curve posted component samples of their song “Unreadable Communication” on their website and invited fans to create their own versions of the song. All submissions were listed on the website. Although the band reserved copyright, they permitted me to upload my version to my online distribution website for free download. It has been downloaded 113 times and streamed a further 112 times over the last couple of months. The remix project has a reciprocal dimension: Creative engagement strengthens the fan base. Guitarist/programmer, Dean Garcia, states “the main reason for posting the samples is for others to experiment with something they love . . . an opportunity as you say to mess around with something you otherwise would never have access to2”. Umixit is testing the market for remixable songs. Although the company has only five bands on its roster (the most notable being Aerosmith), it will be interesting to observe the development of a market for “neutered sampling” and how long it will be before the majors claim a stake. The would-be descendants of Grand Master Flash and Afrika Bambaataa may find themselves bound by end-user licences and contracts. The notion of “copy” at the nexus of creativity and copyright law is simultaneously a vehicle for free expression and a vulgar infringement on a valuable economic interest. The compulsory licence for cover versions encourages musicians to rework existing music, uncover hidden meaning, challenge the boundaries of genre, and actively participate in culture creation. Lack of affirmative congressional or judicial interference in the current sampling regime places the beneficial aspects of “copy” under an oppressive monopoly founded on copyright, an engine of free expression. References American Hit Network. “Bittersweet Symphony – The Verve.” Undated. 17 April 2005 http://www.americanhitnetwork.com/1990/fsongs.cfm?id=8 & view=detail & rank=1 〉 . Beaujon, A. “It’s Not The Beat, It’s the Mocean.’ CMJ New Music Monthly, April 1999. EMI. “EMI and Orange Announce New Music Deal.” Immediate Future: PR & Communications, 6 January 2005. 17 April 2005 http://www.immediatefuture.co.uk/359 〉 . H. R. Rep. No. 2222. 60th Cong., 2nd Sess. 7. 1909. H. R. Rep. No. 609. 100th Cong., 2nd Sess. 23. 1988. MacMinute. “NIN Offers New Single in GarageBand Format.” 15 April 2005. 16 April 2005 http://www.macminute.com/2005/04/15/nin/ 〉 . McLeod, K. “How Copyright Law Changed Hip Hop: An Interview with Public Enemy’s Chuck D and Hank Shocklee.” Stay Free 2002, 23 June 2004 http://www.stayfreemagazine.org/archives/20/public_enemy.html 〉 . McLeod, K. Freedom of Expression: Overzealous Copyright Bozos and Other Enemies of Creativity. United States: Doubleday Books, 2005. Negativland. “Discography.” Undated. 18 April 2005 http://www.negativland.com/negdisco.html 〉 . Negativland (ed.). Fair Use: The Story of the Letter U and the Numeral 2. Concord: Seeland, 2005. Netanel, N. W. “Copyright and a Democratic Civil Society.” 106 Yale L. J. 283. 1996. Patterson, L.R., and S. Lindberg. The Nature of Copyright: A Law of Users’ Rights. Georgia: U of Georgia P, 1991. Petridis, A. “Pop Will Eat Itself.” The Guardian (UK) 2003. 22 June 2004 http://www.guardian.co.uk/arts/critic/feature/0,1169,922797,00.html 〉 . Prendergast, M. The Ambient Century: From Mahler to Moby – The Evolution of Sound in the Electronic Age. London: Bloomsbury, 2003. Rose, T. Black Noise: Rap Music and Black Culture in Contemporary America. Middletown: Wesleyan UP, 2004. Sen. Rep. No. 1108, 60th Cong., 2nd Sess. 7. 1909. Superswell. “Horror Stories.” 17 April 2005 http://www.superswell.com/samplelaw/horror.html 〉 . Waldron, J. “From Authors to Copiers: Individual Rights and Social Values in Intellectual Property.” 68 Chicago-Kent Law Review 842, 1998. Endnotes 1 Harper & Row, Publishers, Inc. v. Nation Enterprises 471 U.S. 539, 558 (1985). 2 From personal correspondence with Curve dated 16 September 2004. Citation reference for this article MLA Style Collins, Steve. "Good Copy, Bad Copy: Covers, Sampling and Copyright." M/C Journal 8.3 (2005). echo date('d M. Y'); ? 〉 〈 http://journal.media-culture.org.au/0507/02-collins.php 〉 . APA Style Collins, S. (Jul. 2005) "Good Copy, Bad Copy: Covers, Sampling and Copyright," M/C Journal, 8(3). Retrieved echo date('d M. Y'); ? 〉 from 〈 http://journal.media-culture.org.au/0507/02-collins.php 〉 .