The Independent (UK) Tuesday 5 May 1998

I'll name that tune in court
Iain Aitch samples some more rifts about riffs in the music business

The issues of sampling and plagiarism in music have long been a bone of contention within the industry. Disgruntled music publishers call it stealing, whilst some artists call it part of the creative process. Established acts can afford to negotiate for the right to use snippets of others work, but some try to get away with what they think is an undetectable steal - risking the consequences if caught.

Now a third category is being established - those who sample without asking and then shout loudly about it. This is the tactic employed by the alliance of US musicians and Internet-based pranksters that have come together to challenge, what they regard as, outdated laws concerning copyright in music. Illegal Art, Detritus and Rtmark joined forces to release the CD "Deconstructing Beck" two months ago. It consists of 13 tracks of musical collage, created by various unknowns on low to no-cost computer software and almost all of the material used was sampled directly from Beck's output such as "Mellow Gold" and "Odelay". Illegal Art provided the musicians, Detritus gave space on its web pages and trouble-making underground art foundation Rtmark donated $5,000 to make it all possible.

Illegal Art made sure the release got the attention they felt it deserved by putting Beck's label, Geffen Records, at the top of the mailing list. Needless to say, the CD soon made its way to the desk of Geffen lawyer Brian McPherson. He fired a warning off to those involved, calling them "stupid" and telling them to expect the full weight of the law to fall upon them.

It was at this stage that experimental independent band Negativland stepped in. Negativland are no stranger to lawyers themselves, having been involved in a lengthy legal dispute with Island records over their 1991 recording "U2" which featured samples from U2's "I Still Haven't Found What I'm Looking For". The legal fight cost them $45,000 and their relationship with SST Records, who released the single. But it also inspired them to publish an impressively researched document of the affair and their views on copyright - cheekily titled "Fair Use: The Story of the Letter U and the Numeral 2"

Alarmed at what they saw as heavy-handed tactics by another large record label, Negativland sent an e-mail to McPherson. They wanted to make it clear they thought the release was covered by fair use and posed no threat to Beck's sales: "You and your client, Beck, have nothing to fear from this sort of work which is in no way co-optive or competitive with the original material! This is so patently obvious in the work itself, it is a little embarrassing to have to point it out to a lawyer."

The lawyer got a little hot under the collar at this criticism, but Geffen have decided not to pursue the case further. Beck's publisher BMG, however, has ordered Illegal Art to "cease and desist" - American legal speak for, "stop selling this now or we'll see you in court". But pseudonymous Illegal Art spokesman Philo T Farnsworth is unruffled by this: "We received a cease and desist letter from BMG but we are currently ignoring it since it wasn't a court order and it wasn't even sent to me. They never were able to find out who I was so they addressed it to my alias and sent it to the Illegal Art e-mail address."

Negativland have now put the CD out on their own Seeland label, viewing it as an important work in the fight against the corporate stranglehold on creativity. They achieved something of a land mark themselves with their last release, an album entitled "Dispepsi" which sampled huge swathes of Pepsi advertising jingles alongside critical material. After some consideration Pepsi decided not to take any action, leaving the band with the finances to release a new mini-album. This features the track "OJ and his personal trainer kill Ron and Nicole" - made from a collection of audio snippets of an OJ Simpson exercise video. They obviously enjoy a little controversy.

Fair and unfair use is also an issue in the UK. The recent example of The Verve's "Bittersweet Symphony" shows that music publishers are ever vigilant. The Verve had to hand over 100% of royalties for a sample of an orchestral version of Rolling Stones track "The Last Time" even though it was described as "subliminal" by lead man Richard Ashcroft.

The KLF (many may have long forgotten that this stood for Kopyright Liberation Front) were caught red-handed right at the start of their career. Then known as the JAMMs, they incurred the wrath of Abba, who had them destroy all the copies of their first LP which borrowed heavily from "Dancing Queen". It has recently been made available again at the Detritus web site, along with Negativland's "U2" single.

Six years before hit single "Tubthumping", Chumbawamba had to scrap the release of their own-label LP "Jesus H Christ" after the letters from publishers started to arrive. The record was like an A-Z of the bands influences - with stolen choruses from Abba to Zappa - via The Beatles, Kylie Minogue and T Rex.

That experience, Chumbawamba's Boff explains, has coloured their attitude to intellectual property rights now that they have become commercially successful: "We were really careful when we signed a publishing contract to put in a clause which said if we didn't want the publishing company to pursue a case then they couldn't.".

The idea that the buck should stop with the artist is heartily approved of by Negativland's Mark Hosler who only wishes that Beck would see it the same way: "Our point is basically: 'Hey Beck- you make half your records out of samples and we know that you don't clear all of them, you clear the ones that are recognisable obviously.' There are way more sampled bits on his records than they are clearing - that's because he's using stuff - a lot of which is too obscure so they don't bother."

"We're saying to him - you're a top 40 big time rock star now - you come from the independent music world- it would help if you came out publicly and said: 'Hey this Deconstructing Beck thing - it's just a collage - it's not ripping me off, it's not piracy - this is okay, this is exactly what I do.' So far he has said nothing and that is really unfortunate and to his detriment."