Reproducing Music: Another University Essay by Me

Yo. More essay for you. This one was for a course on Art and Anti-Art. Though I just wrote about music and ownership. Again, my views have changed since I wrote this. But still…sometimes it’s good to get a bit of perspective.

More essays will follow. Unless someone complains that I’m boring. In which case I’ll go and cry somewhere. The truth hurts.


Reproducing Music:

Who owns the sounds we listen to?


The issue of music copyrighting, part of wider issues in regards to intellectual property in general, is a thorny one, to say the least. Andrew Goodwin points out that we live in an age when digital reproduction of music in which technology allows anyone and everyone the ability to ‘purchase an “original”’1. He talks about the ‘mass production of the aura’ (p259); the way music is reproduced in a way by which ‘there is no discernible difference between the sound recorded in the studio and the signal reproduced on the consumer’s CD system’(p259). This reproduction can now be performed from CD to CD and computer to computer by means of the mp3; and this copying and file sharing, normally over Peer to Peer (P2P) networks like Kazaa, is so prevalent that the US Deputy Assistant Attorney General John G Malcolm estimates ‘that over 50 million Americans have downloaded or shared files via P2P, and that about 5 million of them are doing it on any given day.’2 Record companies are in uproar to prevent what is seen by many as a ‘Marxist revolution [,] since property is theft and musical recordings are considered property.’3 Matthew Herbert, a revolutionary electronic music producer who goes under several different recording identities (Doctor Rockit, Radio Boy, Herbert and his latest project the Matthew Herbert Big Band) is among those who provide a new way of looking at these processes of reproduction, especially the act of sampling music to make more music, an issue on which I intend to focus.

Malcolm, representative of the department of Justice in America tells us that:

Millions of copyrighted songs and hundreds of thousands of copyrighted movies are illegally copied every day. The losses to those who create software and games from illegal copying are also significant.’4

That an important official is making lengthy speeches about the importance of enforcing copyright law -something that ‘has always been, and should remain, civil in nature’5 and encouraging criminal enforcement- demonstrates how serious the matter of musical reproduction is considered. Malcolm complains that too many people are of an attitude that they ‘can take whatever [they] want, whenever [they] want it without paying for it just because [they] now have the means to do so’6, and that it is their moral right to do so, on the grounds that the industry is charging too much for the music it provides. He and the industry (particularly as represented by the Recording Industry Association of America (RIAA)) protest that this is immoral (not to mention illegal) as it takes money away from the industry, a figure estimated at ‘more than 300 million dollars a year domestically [i.e. in America]’7, and therefore by inference the recording artists themselves. The RIAA claims noble goals to ‘protect intellectual property rights worldwide and the First Amendment rights of artists’8, and helps pursue legal action against those downloading and pirating music around the world. This activity has sparked much protest from the download community, which in general seems to fall under a category of people wanting something for nothing, because they ‘have the means to do so’9. This argument falls apart rapidly on any legal footing; intellectual property is a recognised and important part of the law, and has been in this country since the Anne Act of 170910 and was even mentioned in the original US constitution11.

Another significant aspect of copyright issues is highlighted by Andrew Goodwin in his essaySample and Hold’12, and this is the sampling of music, whereby musicians (or more properly perhaps composers/producers) digitally sample elements of other records and use them as the basis of new songs. Goodwin talks of the ‘Age of Plunder’ (p267) whereby everybody is ‘ “stealing” segments from other records [as a] part of the meaning of the “new” text’ (p271). This is fourteen years ago now, and the trend has only increased, more and more copying and pasting of bits of songs happens all the time. It is not necessarily a problem in itself, as Matthew Herbert notes ‘some of my favourite records have been done this way, including the bulk of hip hop.’13 Nick Hornby, points out that some acts have ‘upped the ante’ and that acts like ‘The Avalanches [in their single ‘Frontier Psychiatrist’ from their album Since I Left You] use so many samples to create something so indisputably their own that to accuse them of plagiarism is pointless: you may as well make the same case against a writer whose books contain words that other writers have used before.’14 Hornby makes a good case for the ability of acts like these, while diminishing those who merely ride on others’ coattails, the musicians that Herbert points out who ‘sampled jazz records and called themselves jazz, they sampled James Brown and declared their music funky’.15 The case is convincing, you have to do something interesting with samples you use in order to make something valuable in its own right; but this debate of creativity, ignores the question of ownership, which brings up significant problems.

The key problem is the fact that ‘well over 90% of sample usage is never cleared’16, meaning that the composers of the original music being sampled fail to get the money from the use of their own creativity. To use Herbert’s example, James Brown does not get the money for the funkiness that the samplers have borrowed (or rather stolen) from him. There is an argument that this is acceptable because it recuperates the sales of the music it samples, Tom Simenon points out that ‘all of his [James Brown’s] records are being reissued. Kids of 18, 19 wouldn’t have heard of him if it wasn’t for hip-hop’17. This relies upon the clearing of samples, acknowledgements on record sleeves (absent from pirated, copied and shared music), through the music press, or through the knowledge of pub bores and musos. These sources of information sharing are flawed, and often fail to help the more obscure artist reach fame (and financial reward) they may deserve. Herbert eloquently sums up a large portion of this problem when he says:

Many people have considered this a Marxist revolution, since property is theft, and musical recordings are considered property. The problem…within musical composition, however, is that people then sell their own music using these samples. They are creating their own exclusive property and their philosophic raison d’être is destroyed…If people want to take samples for free, then they need to be prepared to distribute their music for free.’

(Matthew Herbert – Records and Responsibility)

Here Herbert proposes one solution to the problem, the free distribution of music, an idea that sounds like it is falling into old traps, but has not only been done by Herbert himself, but is also promoted by groups coming under the wing of the ‘copyleft’ movement.

Herbert’s album (released under the recording persona Radio Boy) The Mechanics of Destruction18 was to Herbert something of a ‘mini revolution’19 in that it was made up of the things it was rather than simply being about those things20. An example of what this means is that the first track is called McDonald’s, and is made from samples generated using a Big Mac meal as the only sound source. The accompanying website explains the political motivation for this (Herbert’s politics have become more and more intertwined with his music as his career has progressed), but the key to the meaning is the distribution method. The album was given away to any who wanted it, either given out at gigs, downloadable from the internet or by mail if you sent Herbert’s own label a self addressed envelope. Herbert says this

created a genuine and spontaneous relationship with the audience. People sent us money, stamps, cds of their own music, books they had written, pictures, artwork. It felt like a dialogue that was almost entirely absent in the traditional business models.’

(Matthew Herbert – Records and Responsibility)

It is this spontaneous relationship, the free giving of unasked for reward that suggests a new way around the problem of copyrighting. A way that allows copying and sharing of music, but still allows the artist to be rewarded. It also avoids the institutionalised power of the record companies, the industry (as seen earlier in the RIAA comments) that demands rights for the artist but in fact takes most of the money from intellectual property suits for itself. Ram Samudrala, author of an essay entitled The Free Music Philosophy21 encourages this sort of distribution process (often called copylefting, as a simple pun on copyrighting, that points out its left wing origins) and offers an appropriate liner note that, as I am running out of space, I shall offer as a fairly self explanatory legal alternative to copyrighting, and my conclusion.

Permission to copy, modify, and distribute the musical compositions and sound recordings on this album, provided this notice is included with every copy that is made, is given for noncommercial use. If you obtained this by making a copy, and if you find value in this music and wish to support it, please send a donation based on whatever you thought the music was worth to the address given on this notice.’22





1 ‘Sample and Hold’ in On Record Edited by Simon Frith and Andrew Goodwin (London: Routledge 1990) p259 – all quotations from this edition

2 Privacy and Intellectual Property – Legal Issues Related to Peer-To-Peer File Sharing Over the Internet New York State Bar Association & International Bar Association (Amsterdam, The Netherlands – October 23, 2003) – – all quotations from this web page

3 Matthew Herbert in Records and Responsibility: An interview with Matthew Herbert by Clare Birchall 15th June 2003 – – all quotations from this website

4 Privacy and Intellectual Property

5 Privacy and Intellectual Property

6 Privacy and Intellectual Property

7 RIAA Website (2003)-

8 RIAA Website (2003)-

9 Privacy and Intellectual Property

10 RIAA Website (2003)-

11 RIAA Website (2003)-

12 ‘Sample and Hold’ in On Record Edited by Simon Frith and Andrew Goodwin (London: Routledge 1990)

13 Records and Responsibility

14 31 Songs (London: Penguin 2003) p170

15 Records and Responsibility

16 Records and Responsibility

17 ‘Beat Generator’ in New Musical Express, quoted in ‘Sample and Hold’ p271

18 – recordings available free for download

19 Records and Responsibility

20 Records and Responsibility

21 The Free Music Philosophy v1.4

22 The Free Music Philosophy


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