Sampling: A Creative Tool or License to Steal? : The Controversy

G uitarist Leo Nocentelli, pictured above, vividly remembers his first exposure to sampling in 1982.

“I was on a session and the guy pressed one note on the keyboard and it made ‘Whooaahh! Good God!’ like James Brown,” recalled Nocentelli, who made his mark with the New Orleans funk group the Meters in the early ‘70s.

“It blew me away. It was James Brown’s voice by the press of a finger and I saw the trouble in that.”

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Seven years later, the music industry is all too aware of what Nocentelli was concerned about. The use of “sampling,” a relatively new studio technique involving the digital recording of short snatches of sound,has mushroomed dramatically in pop music, particularly in the rap and hip-hop genres.

Rob Base and D.J. E-Z Rock used a James Brown whoop and two lines from singer Lyn Collins’ 1972 soul hit “Think About It” as the central chorus of last year’s “It Takes Two.” Tone Loc took a few bars from a Van Halen song, “Jamie’s Crying,” as the musical track for “Wild Thing.”

This increased use of sampling--and the growing popularity of rap--has generated a heated debate, over both the artistic value and the ethics of the technique.

The hit rap act De La Soul’s critically claimed gold album, “Three Feet and High Rising” has been hailed as a watershed in the creative use of sampling. The first side alone contained pieces of TV game show themes and the Steely Dan song “Peg,” James Brown rhythm tracks and hard rock guitar licks, the “Chopsticks” theme and what could be the bass line to “Stand by Me”--along with literally dozens of other sonic snippets that are maddeningly familiar but difficult to identify.

But should recording artists use pieces of another song in their own work, and if so, should they pay royalties for the rights? One outgrowth of that controversy is a flurry of lawsuits charging copyright infringement through the use of samples . . . and De La Soul hasn’t been immune.

Last month, members of the Turtles filed suit claiming the hit rap act sampled a riff of the ‘60s pop group’s song, “You Showed Me” without permission or compensation. Their lawsuit charges that De La Soul used a four-bar section of the Turtles song (lasting 12 seconds) and “looped” it so that the riff served as the music for the entire 66 seconds of the De La Soul piece “Transmitting Live From Mars.” (In a recent article in The Times, Ken Anderson, the attorney representing De La Soul in the case, said, “I’m not saying there’s no sample of the Turtles but other things are involved that are not the Turtles.”)

The longest running suit in the court system was originally filed in 1987, when Jimmy Castor sued the Beastie Boys over the use of the phrase “Yo, Leroy” from Castor’s 1977 record “The Return of Leroy (Part I)” in the Beastie Boys’ song “Hold It Now, Hit It.” The suit, filed in New York City, is expected to be the first one involving sampling to come to trial, and the decision, music industry attorneys say, will set some legal precedents for future uses of the technique.

Advocates argue that using samples creatively can give a new dimension to the original song fragment by placing it in a different context. The effect is akin to an audio collage.

“Sampling gets a knee-jerk reaction because of the way it’s done,” charged Anderson, who also represents the Beastie Boys in the Castor suit. “(People think that) there’s something that smacks of thievery in pushing a button rather than moving your fingers on an instrument.” But, he added, “I think that’s simply culture shock.”

Sampling’s critics acknowledge the technique’s creative potential, but they draw the line at the practice of taking an entire phrase directly from an old record and using it as the foundation of a new song.

“I don’t deny the creativity of the people putting it together any more than I deny the creativity of the collage artist,” said Bruce Gold, Castor’s attorney. “That doesn’t change the question of whether these people have an ownership interest in the underlying works they’ve used.

“They may have an ownership interest in the total collage they’ve created but it doesn’t give them any ownership of the works that make up the collage. They don’t have the right to take the underlying works and use them for free.”

The lawsuits involving sampling may capture the headlines, but industry experts say it is not uncommon for the necessary clearances from publishers and record labels to be quietly obtained in advance.

The New York-based rap group Stetsasonic constructed “Talking All That Jazz,” a spirited defense of rap music and sampling, around music taken from Lonnie Liston Smith’s 1975 piece “Expansions.” Before recording their song, Stetsasonic contacted Smith and struck an agreement to pay the jazz keyboard player $3,000 for the use of his music in exchange for full ownership of the copyright to “Talking All That Jazz.”

Typically, rap artists use samples from soul/funk innovators like James Brown. To Daddy-O of Stetsasonic, who wrote “Talking All That Jazz,” sampling those works is both a musical homage and a way for rappers to align themselves with black music of an earlier era.

“There was a turning point when Lionel Richie and everybody else went the Kenny Rogers route and nobody was standing up for the music,” he said. “We attack that whole image of black music by re-vivifying what was there from before.

“We could go back and play an old Joe Tex line but it wouldn’t have the same feeling. The best thing for us to do is go out and get the rights for the record, give them some of the publishing and sample.”

Sampling has been a natural avenue for rappers, since the style began with artists creating their own lyrics to the accompaniment of cassette tapes of songs or skeletal rhythm tracks. In some respects, rappers were “sampling” before the term existed, since many early hits in the genre were built around the bass line to “Good Times” by Chic.

Another key factor in the increased use of sampling in both rap and pop records: the decreasing cost of the technology. Only a few years ago the computerized keyboards required to sample cost anywhere from $50,000 to $300,000. Today the equipment that will sample at practically CD quality costs only a few thousand dollars.

Sampling adds a new dimension to the cloudy issue of borrowing within pop music, since the actual recordings of other artists can be used.

“Copyright infringement is a strange area because there’s no set amount or timing of music that constitutes a violation,” said Richard Grabel, a New York music attorney and former rock critic. “The basic legal standard is substantial similarity--there’s a threshold and if you cross it, bang, you’re guilty. If you stay just shy of that threshold, you’re using the common language of pop music.

“Pop music is based on borrowing, and the same type of chord progressions, rhythms and melodies keep recurring. What makes something catch our ear is the way an artist takes something that’s sort of familiar and makes it sound fresh again.”

Rap artists have been taking the heat during the sampling controversy but rock artists have done their share of using other sources. David Byrne and Brian Eno’s 1981 album “My Life In The Bush of Ghosts” used “found sounds” of preachers and radio programs, a practice not far removed from sampling.

Chuck Berry is now listed as a co-writer of “Surfing U.S.A.” because the music of the Beach Boys song was so obviously patterned on “Sweet Little Sixteen.” The most famous rock plagiarism case was a 1976 judgment against George Harrison--the former Beatle had to pay $587,000 in damages for “unknowingly” copying the melody of his “My Sweet Lord” from the Chiffons’ “He’s So Fine.”

On the other hand, the Meters have been sampled by prominent rap groups like Run-DMC, Public Enemy and Salt-N-Pepa, but, according to Nocentelli, the band has not received credit. (As with many other early R&B; performers, the Meters’ case is clouded by questions surrounding the legal ownership of the group’s master recordings and music publishing.)

“It’s helpful in keeping your name out there but you’re supposed to get paid for it,” Nocentelli said. “The most you’ll get now is, ‘I heard your song “Cissy Strut” on an album,’ and a pat on the back. I don’t want just a pat on the back--pat me on the back and stick some dollars in my back pocket or something.”

Sampling’s rap payback has been beneficial to some artists.

Ofra Haza was an Israeli pop star who recorded an album of Yemenite folk songs as a present to her parents three years ago. Some deejays in London mixed a sample of her haunting voice onto several records--including the hit “Pump Up the Volume” by M/A/R/R/S and a popular remix of Eric B. & Rakim’s “Paid in Full.” Now Haza has an international reputation . . . and a recording contract with Sire.

Some of the benefits have filtered back to those early R&B; performers. Bobby Byrd, who formed the Famous Flames and arranged for James Brown to join the group in the ‘50s, had been recording and producing gospel music in Tennessee after parting company with Brown in 1981.

Two years ago, Byrd found himself with a rejuvenated career in Europe when some of his solo records from the mid-’60s were sampled--most notably when Eric B. & Rakim prominently featured Byrd’s “I Know You Got Soul” in their rap of the same name. Byrd recently completed his third English tour since 1987--the last two leading a full revue of veteran James Brown vocalists and band members.

“I want to be the first to stand and say that if it hadn’t been for the rappers, these things would not have happened to the singers of the ‘50s, ‘60s and ‘70s,” said Byrd by phone from his Georgia home. “This has revitalized and re-energized a lot of us.

How should the sampling issue be resolved?

“Right now, it’s all very negotiated and negotiable terrain, but I would prefer we have general guidelines for people to abide by,” said Rick Dutka, vice-president of business affairs for Island Records. “More and more, one hand washes the other on sampling issues.

“With the rise of rap, it didn’t take long for every record company to realize they were sampling everybody else. The ones who used to take the hard line are now calling back for a favor.”

Most of those interviewed by Calendar agreed that payments should be arranged by the involved parties in advance--and on a flexible, case-by-case basis. That would take into account the varying ways samples can be used--as the main hook or an incidental portion of the song, as an unadulterated copy of the original music or electronically altered into a new form.

Not everyone buys the idea of recognizing those differences.

“I’m not sure it’s proper to draw a distinction between taking a (main) hook or just an incidental portion,” argued attorney Gold. “The purpose of the sample is to recollect the original work.”

But it’s that very sense of recollection that may ensure sampling’s place in rap--and the pop music world in general.

“We can continuously evolve if we stay rooted in tradition and basically that’s what sampling enables us to do,” said Daddy-O. “The technology is from somewhere else but when you receive a gift from heaven, you don’t question it. Sampling is part of the program now.”