‘Copyright Criminals’ stands on the shoulders of giants (and it ain’t cheap)

The explosion of music sampling in the late 1980s has brought with it a host of creative and legal issues that have reverberated throughout the music industry to this day.

Born of the availability of affordable turntable equipment to a generation of artists who grew up without access to expensive musical instruments, a new kind of musician began to enter the mainstream. What wasn’t anticipated was the slew of red tape and lawsuits that would follow.

In their new documentary, Copyright Criminals, executive producer Kembrew McLeod and director Benjamin Franzen—both University of Iowa professors—attempt to shed light on the complexities within the simple sample.

The film, which screened Sunday evening at the Iowa Memorial Union’s Bijou Theater, brings together a host of artists and legal experts to make some sense of copyright paradoxes, touching on why it’s easier to sample an entire song than snatching just a few seconds, or why legal issues get more complex if lyrics are changed rather than keeping them intact.

McLeod and Franzen bring an impressive array of opinions to the screen. There are those who see sampling as a lazy artistic choice—the taking of someone else’s life’s work and putting another name on it—and there are others who feel that art is by its very nature derivative— that culture is a collage created on the shoulders of giants.

The sum? It seems that the majority of artists featured in the film would argue the latter, but trends in legal precedent lean to the former. This likely has to do with the fact that most of the artists (including Chuck D of Public Enemy, The Beastie Boys, De La Soul, Sage Francis and countless others) are themselves tireless samplers. The lawyers, of course, are paid to turn this practice into profit.

Sampling the Samples

“There were huge ironies in making a film that documents copyright infringement,” McLeod said during the post-film Q&A. The film uses dozens of copyrighted audio and video clips to convey its message, and checks were written not only to clear the use of these clips, but also for the hundreds of billable hours legal professionals needed to determine whether such bits could even be used at all.

Legal costs included a sort of application fee of some $1,000 per song, paid to ascertain whether an artist would give permission for his or her song to be sampled.  This fee is independent of the main cost—that of actually using the song. As McLeod noted, one particular sample was foregone because the permission fee came with a usage fee of $15,000.

Costs piled up, as costs are wont to do, even for clips intended to be used under the premise of ‘fair use,’ which allows the use of copyrighted material–free of charge–for purposes such as review or education. The ‘fair use plea,’ as you may have guessed, also requires a lawyer.

In the case of Copyright Criminals, a lawyer worked for several dozens of hours to write legal documentation defending the film’s fair use.

According to McLeod, this documentation would have come at approximately $500 an hour if not for a friendly lawyer who was willing to forgo the budget-eating fees. With his help, Franzen and McLeod were able to lean on fair-use more than 400 times throughout the 53 minute documentary.

For McLeod, “Fair use can be frustrating because it’s incredibly vague,” but he also sees the vague precedent as a strength, adding that “it allows people to adapt with new technologies.”

And what does the future hold for copyright laws?  McLeod, prankster and actual legal owner of the phrase “Freedom of Expression” (used here without permission), says it’s not going to get any better:

“Copyright laws are out of whack with what current technology allows…Congress is not going to change the law for the better. A Change in law is not going to happen,” McLeod said. He warns that changes in copyright law are tipping in the other direction, in favor of the “copyright clearance industry” that has exploded alongside the growth of music sampling.

His forecast for the future of copyright law is not entirely dim. He says change must come from the bottom up, and both artists and consumers of music must organize if they want to see any change in their favor. In producing this documentary and bringing so many artists and experts together in one piece of cinema, it seems McLeod himself has already taken that first step.

Copyright Criminals will broadcast in January on the Emmy Award-winning PBS documentary series Independent Lens, with a DVD release soon to follow.

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