Creative License: The Law and Culture of Digital Sampling (review)

You would have to be tucked away somewhere very isolated indeed not to have noticed that digital technologies have had a profound impact on the way information and culture is produced and consumed. One striking symptom of fast-moving change is the way in which traditional publishing industries have struggled, at least until very recently, to control the online dissemination and consumption of their materials, their profits and, they claim, their long-term existence.

It is a similar sort of dynamic that frames the present work by Kembrew McLeod and Peter DiCola, who are less concerned with dissemination and consumption than with the impact of the music industry on the creation of music. In Creative License, they locate sample-based recorded music in a mixture of aesthetic, historic, and legal contexts in order to demonstrate that the modern corporate music industry effectively criminalizes this form of creativity. And since the practice of sampling is now such a fundamental building block for the production of so much music, the book could not be more timely.

With the assistance of Jenny Tooney and Kristin Thomson, two leading figures from the American-based pressure group Future Music Coalition, McLeod and DiCola put the case for the reform of copyright law as it relates to the ‘sample clearance system’ within the global music industry, promising to pursue the contradictions and complexities that result from their interviews with the various stakeholders (p. 4). That is, to go beyond the view that sampling equals theft or, conversely, that it is merely another form of artistic collage and, as such, free to do as it pleases (a tradition of artistic creation that, the authors and their interviewees are keen to stress, possesses a long and often illustrious history).

The sample clearance system is the set of laws, guidelines, and rules that govern the way musicians (or, rather, their record labels) negotiate and attempt to gain (or avoid) the necessary and often costly licences required to make use of samples of pre-existing recordings in a new recorded context. (Indeed, one of the many interesting observations made in Creative License is the way that the sample clearance system has itself become an industry during the last two decades, with lawyers, middlemen, and capitalist vultures of all sorts attracted by the lucrative settlements that have occurred in the past.) It is important to note that it is this system and its purported negative effects on creativity that is the focus of the book rather than the practice of digital sampling in general (or indeed, in detail), a practice that is stylistically much broader and institutionally more diverse than generally discussed here.

The organization of the book’s seven chapters is based around an enticing narrative arc that is held up by two key moments in the recent history of popular music, only the first of which is widely known amongst musicologists. This narrative tells the story of the emergence of Hip-hop as a form of mass culture during the 1980s, its institutionalization and commercialization in the early 1990s, and the ways in which corporate America (i.e. the big record companies and, as a result, intellectual property law) has reacted and developed to extract maximum control and profit.

The first of these structural moments provides the opening point for the book as well as the substance of chapter 1, namely what the authors call ‘the golden age of sampling’. This notion denotes a period from the late eighties to the early nineties, viewed with much nostalgia here, where early pioneers of digital sampling enjoyed the freedom to be liberal with their record collections because no one, especially copyright holders, truly understood what they were up to (particular emphasis is given to the Hip-hop groups Public Enemy, De La Soul, and the Beastie Boys).

As is now well known, and detailed extensively here in interviews...