Harlem Shake: could it kill sampling?
An unexpected viral dance craze shot Baauer’s Harlem Shake to the top of the Billboard charts. Almost immediately, legal letters began to arrive. So, can cut-and-paste culture continue to flourish on the internet?
by Dorian Lynskey
The Guardian, Wednesday 13 March 2013 17.03 GMT
Brooklyn-based producer Baauer could not have anticipated the success of Harlem Shake. Photograph: Jen Maler/CAMERA PRESS/Jen Maler
It didn’t take long for Baauer, AKA Brooklyn producer Harry Bauer Rodrigues, to realise the downside of freak success. Almost as soon as his bass-heavy minimalist dance track Harlem Shake was propelled to the top of the Billboard charts last month by a viral dance craze and a change in chart rules that took into account YouTube views he wascontacted by representatives for retired reggaeton artist Hector Delgado and Philadelphia MC Jayson Musson. Without realising it, both men were collaborators on a hit. It was Delgado who sang “Con los terroristas” on his 2006 single Maldades, and Musson who rapped “Do the Harlem Shake!” on Miller Time, a 2001 track by his group Plastic Little. Both vocal hooks were fundamental to the success of Baauer’s record but neither performer had been approached or paid.
On the surface, Baauer’s failure to license the samples would appear to stem from some combination of naivety, laziness and stupidity, but nothing about Harlem Shake is straightforward. At the beginning of February, this year-old underground club track suddenly became a worldwide phenomenon thanks to tens of thousands of people (including Egyptian protesters, Manchester City players, Stephen Colbert and The Simpsons) filming themselves dancing like idiots to a 30-second excerpt. By 20 February it was No 1 off the back of 103m YouTube views in a single week.
Link to video: Manchester City perform their version of the Harlem Shake
Had Baauer known a year ago that this would happen, he would doubtless have been more careful, but nobody saw it coming. The record got away from him, upending his assumptions and making him yet another name in the long and controversial history of sampling: a bewildering grey area shaped by legal confusion, financial necessity, technological advances, arguments over artistic freedom, and old-fashioned seat-of-the-pants chutzpah.
Hip-hop began in the early 1970s as a DJ-driven artform, with MCs initially employed as energetic hypemen. So when it eventually graduated from the club to the recording studio, the principle of rapping over other people’s records was a given, and the only obstacle was technological. The primitive nature of early samplers forced producers to use stiff programmed drums (think of any early Run-DMC or Beastie Boys single), rather than fluid breakbeats. But the release of samplers such as the E-mu SP-1200 and the Akai MPC60 in the late 80s revolutionised the form, enabling producers to ransack their record collections for ideas. Albums such as De La Soul’s 3 Feet High and Rising and the Beastie Boys’ Paul’s Boutique worked dozens of samples into collages of psychedelic complexity. Public Enemy claimed that they had used so many sources in their 1989 hit Fight the Power that even they couldn’t identify them all afterwards.
Sometimes the original artists were paid and credited, but usually not. This wasn’t legal, it was just the way things were done. In retrospect, it seems startlingly blatant. Did MC Hammer and Vanilla Ice really not think to clear the huge and obvious samples (from Rick James and Queen respectively) that underpinned their breakthrough hits? No, because hardly anybody did. It was a free-for-all.
Use of a song by Gilbert O’Sullivan caused problems for rapper Biz Markie. Photograph: Terry O’Neill/Getty Images
The Wild West era waned with Hammer and Vanilla Ice’s expensive retroactive settlements and ended decisively in 1991 when a federal court found rapper Biz Markie and his record label guilty of copyright infringement against singer-songwriter Gilbert O’Sullivan. “Thou shalt not steal has been an admonition followed since the dawn of civilisation,”wrote Judge Kevin Thomas Duffy. “Unfortunately, in the modern world of business this admonition is not always followed.” When Markie was ordered to pay damages and remove the offending track from his album, the music industry panicked and insisted that artists declare all their samples in advance, thus making De La Soul-style collages prohibitively expensive and dramatically affecting the sound of hip-hop. These days, big stars rarely cross the line deliberately. Kanye West and Jay-Z’s recent scuffle with soul singer Syl Johnson arose from a paperwork error at their record label. Generally, the system works: in 2010 Johnson boasted that his house had effectively been paid for by the Wu-Tang Clan.
The Biz Markie case changed the practice of sampling but without establishing a watertight precedent or inspiring any clarifying legislation. Subsequent cases have only complicated the issue.
The problem for artists is that the criteria are nebulous and the judgments subjective. In the US, the “fair use” doctrine grants exemptions from copyright law in certain circumstances, for example if the new work is considered “transformative” rather than merely “derivative”, and doesn’t affect the value of the original work. The Supreme Court ruled in favour of Florida rap group 2 Live Crew in a1994 case because their unlicensed copying of Roy Orbison’s Oh, Pretty Woman was deemed a parody and therefore permissible under fair use. But artists who sample cannot be sure what qualifies as fair use until a case goes to court, so in practice it becomes a question of weighing risks against rewards.
Even apparently legitimate samples can be contentious. The Beastie Boys licensed the recording of jazz flautist James Newton‘s 1978 track Choir for use on 1992’s Pass the Mic but not the publishing rights, so a court had to decide in 2004 whether the six-second sample (“three notes separated by a half-step over a background C note” in the court’s words) counted as a significant part of Newton’s composition. The judge decided it did not.
The Verve, famously, were not so lucky when they lifted a loop onBittersweet Symphony from the Andrew Oldham Orchestra’s coverversion of The Last Time by the Rolling Stones.
They did, in fact, license the sample but ABKCO, which owned the rights to the record, claimed the Verve had used “too much” of it and won, in an out-of-court settlement, 100% of the publishing as well as a songwriting credit for Jagger/Richards, even though the sampled section owes nothing to the Stones’ own recording. The extremity of the settlement called into question the very nature of authorship.
A sample of Kraftwerk has been the subject of a lengthy wrangle in the German courts. Photograph: EMI
Sampling lawsuits require judges to make aesthetic calls that don’t always make sense. In a longrunning wrangle between Kraftwerk and two German hip-hop producers over a two-second drum loop from 1977’s Metal on Metal, Germany’s supreme court decreed that an unlicensed sample was only permissible if the same effect could not be achieved without sampling. After several expert witnesses banged pieces of metal together and fed the sounds through sampling technology available at the time the hip-hop track was made, the court decided that it was indeed possible and ruled in Kraftwerk’s favour.
But the court misunderstood the philosophy behind sampling. Producers such as DJ Shadow use samples precisely because they want to play with the aura of the original text. As sampling pioneer Steinski told the Guardian five years ago, “You want the thing; you don’t want the almost-thing”. By the German court’s criteria, Warhol should have painted his own pictures of Marilyn Monroe.
This would be a ruinous and artistically tone-deaf legal precedent.
So the law is a mess but the law isn’t all that counts. Most of the time the key question is what you can get away with, and it’s often a great deal. When bedroom producers began disseminating free online “mash-ups” of famous records a decade ago, the record industry initially responded with a flurry of cease-and-desist letters, but it soon realised that there was nothing to be gained by playing corporate Goliath to legions of plucky Davids. Danger Mouse’s 2004 release The Grey Album, a flagrantly illegal mash-up of Jay-Z and the Beatles, led not to a court case but a prolific, Grammy-winning career producing the likes of the Black Keys, Beck and Gorillaz.
Even more provocatively, US DJ Girl Talk, who describes himself as “taking a Warhol approach”, has released five albums, either free or on a pay-what-you-want basis, based on recontextualising chunks of instantly recognisable hit singles. Copyright reformers are eager for an artist or label to take the bait and sue Girl Talk, hoping that the case would clarify “fair use” in their favour, but the industry realises that is wiser to leave the arty outlaws alone while continuing to make money from licensing samples to mainstream artists.
Frank Ocean came under threat after using a sample of the Eagles on his 2011 mixtape Nostalgia, Ultra. Photograph: Ilya S. Savenok/Getty Images
The same goes for online “mixtapes”: albums, often stuffed with unlicensed samples, that are given away online to whet appetites for official releases. R&B star Frank Ocean’s 2011 mixtape Nostalgia, Ultra used huge slabs of music from artists including Coldplay and MGMT but only his sample-cum-cover of the Eagles’ Hotel California inspired a threat of legal action. Frank Ocean’s defence was typical of the mixtape-and-mash-up generation: “Why sue the new guy? I didn’t make a dime off that song. I released it for free. If anything, I’m paying homage.” Cooler heads seem to have prevailed and the threat has gone no further. Nobody wants to be painted as a multimillionaire killjoy, especially when there’s no money to be made even if they won.
For now, the not-making-a-dime defence seems to be keeping potential litigants at bay, enabling a return to the unshackled creativity of the late 80s, but it is a precarious freedom. A single lawsuit, and a ruling more in line with Judge Duffy’s “thou shalt not steal” views than those of the copyright reformers, could bring the shutters clanging down.
For producers who choose to sell their copyright-flouting work, the situation is even hazier because their only defence is obscurity. Most independent labels lack the staff to vet and clear samples, and most of their artists lack the funds, so some choose to release the records anyway and, perversely, hope they don’t become attention-grabbing hits. Sometimes producers don’t even know what they’re meant to be clearing. The labyrinthine nature of the internet makes it easy for someone to come across samples via a trail of links without thinking to note their origin. Baauer’s claim that he can’t remember where he came across Hector Delgado’s vocal could be disingenuous but it’s at least possible.
It was success that got him into trouble. When Harlem Shake was first released on an underground EP in May last year, the samples predictably went unnoticed. Only when it took off last month did Delgado and Musson become aware of the record, and by then there was clearly big money involved. Understandably they both want their cut, although, interestingly they disagree on the ethics of illegal sampling. Musson responded equably, “I’m cool with it. That’s how artists do,” while Delgado complained: “It’s almost like they came on my land and built a house.”
Even if nothing is certain in the field of sampling law, the lesson of Baauer’s case is clear: thou can indeed steal as long as the people you’re stealing from don’t smell a payday. The same sample of Delgado’s voice that appears on Harlem Shake had been used three years ago in a remix by DJ duo Philadelphyinz. They haven’t heard from Delgado’s representative yet, but their remix wasn’t a hit.