Giving up Hip-Hop's Firstborn: A Quest for the Real after the Death of Sampling

In a December 2000 post to an online forum at Okayplayer.com, the Roots' website, producer and drummer Ahmir "?uestlove" Thompson (pronounced "Questlove") responded to fellow posters' queries about the state of sampling—the use of elements from other performers' recordings, for example, funk records, to make hip-hop beats. ¹ The discussion centered on sampling's status as essential to the production of real, or authentic, hip-hop. ² Titled "we all gave our firstborn up," ?uestlove's reply began on a sober, sincere note:

not saying this is the primary reason why we [the Roots] did original material but you don't know the pain it is to give up mid 5 figures to a group of people (record label/publishing company) who ain't even the artist. the pain. ³

Thompson thus attempted to explain his own group's alternative approach and to communicate the woes of a hip-hop artist in the age of copyright commerce. He agonizes over the often-illogical system of usage fees and publishing credits. Such strictures not only impinge on hip-hop artists' creative options, he notes, they frequently fail to benefit the performers whose music is sampled. Most significantly, he mourns the loss of what many consider to be hip-hop's central and essential musical practice. The art of sampling, especially for artists like ?uest who care deeply about hip-hop's history and aesthetics, is akin to a firstborn child—one that such artists have loved dearly, nurtured, and watched grow over the last quarter century. Because of copyright-infringement litigation, some of these artists, with deep regret, have had to give up their firstborn.

With hip-hop's late '90s ascension to global cultural prominence and a lucrative position in international markets, the costs of sampling have risen as well. A number of high-profile copyright lawsuits in the late '80s and early '90s sent a chill through the hip-hop world and a buzz through the business world. De La Soul's unauthorized use of twelve seconds from the Turtles' 1969 single, "You Showed Me," ended in a $1.7 million settlement in 1989. A couple years later, Biz Markie's unauthorized use of twenty seconds from Gilbert O'Sullivan's 1972 ballad, "Alone Again (Naturally)," was ruled a criminal theft and his label, Warner Brothers, was forced to recall and discontinue sales of his 1991 album I Need a Haircut. In the years since, purchasing the rights to sample-heavy music catalogues and licensing these rights to hip-hop producers has become an entrepreneurial activity. Publishing companies such as Bridgeport Music have instigated hundreds of suits against hip-hop labels, many of them retroactive. Some go so far as to hire what are referred to pejoratively as "sample police" to sniff out unauthorized samples. ⁴

Nevertheless, and despite a rise in synthesizer-based production concomitant with the decline in sampling, many hip-hop producers have continued to make beats using samples. Some, such as Kanye West, Just Blaze, P. Diddy, and other producers working for large record labels, enjoy production budgets that permit them to license any sample they like, including the biggest pop hits of previous decades, hence affirming the legal status quo. Some producers and acts, especially independent and largely local artists, operate well enough under the radar to evade scrutiny or harassment and continue to sample with impunity. And some—in particular, acts with a sizeable national, if not international, following but who lack the resources of a "major label"—find themselves in a tight spot: to sample or not, to be real or not, to be sued or not? Among those who choose to continue sampling, some manipulate their samples to disguise their sources (but not their sampledness), while others make brazen musical allusions. Both approaches, in letting the seams show, advance an audibly militant position with regard to copyright law. Arguing with words and beats that their manipulation of other musicians' performances renders them new and makes them their own, such producers assail copyright as fundamentally unfair. They...