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April 19, 2016

Kendrick Lamar Sued for Bill Withers Sample on Mixtape; Misconceptions About Copyright and Sampling Raised

Complaint against Lamar gets it wrong. More proof that a compulsory license for sound recordings is needed.


A rapper uses a sample from a song of another artist to create a new song — said rapper places new song on their free mixtape, then gets sued for copyright infringement by the copyright owners of the song that the rapper sampled. We’ve been here before. We’ll be here again. The latest incarnation of this routine involves Kendrick Lamar and his song “I Do This,” featured on his 2009 mixtape The Kendrick Lamar EP, and the 1975 Bill Withers song “Do You Want to Stay.” “I Do This” incorporates a sample of the Withers recording, and the owners of the copyright in the music composition of the song have filed suit against Lamar, Top Dawg, WB Music Corp, and others, for copyright infringement.

Note: This latest copyright infringement suit involving sampling, an established recording artist, and a free mixtape serves as a reminder that samples used on non-commercial releases are not automatically insulated from lawsuits. What’s more interesting is what this new complaint says about copyright law and sampling, and what the trend of sample-based songs on mixtapes says about the value of the art of sampling and who it’s benefiting the most.

The Complaint

According to the complaint filed April 14, 2016 in a federal court in Los Angeles by a lawyer on behalf of Mattie Music Group dba Golden Withers Music Group and Hadley Murrell dba Musidex (the “Plaintiffs”), Kendrick Lamar, Top Dawg Music, WB Music Corp, and others (et. al) unlawfully copied, “note for note,”1 the 1975 Bill Withers song “Do You Want to Stay,” which Plaintiffs claim ownership to the copyright in the musical composition, on Lamar’s 2013 [2009] song “I Do This” (produced by Sounwave). It’s worth noting that Plaintiffs states that “Defendant Lamar, wrote and composed a musical composition entitled “I Do This” and caused phonorecords embodying a performance of “I Do This” by Defendant Lamar to be recorded and released for sale to the public in or about 2013.”2 This is important to note because the Plaintiffs do not own the copyright in the sound recording of the Bill Withers song “Do You Want to Stay.”

Plaintiffs further allege that Lamar’s composition “I Do This” consists of “nothing more than new, so-called Rap or Hip Hop lyrics, set to the existing music of ‘Don’t You Want to Stay,’” and that Defendants did not create any new music for ‘I Do This’ and Defendants did not simply ‘sample’ some of the existing music of ‘Don’t You Want to Stay.’ Rather, the music of ‘I Do This’ is a direct and complete copy of the music of ‘Don’t You Want to Stay. Defendants used the existing recorded music of ‘Don’t You Want To Stay’ and recorded the new, so-called Rap or Hip Hop lyrics, over the existing music.” Also, Plaintiffs allege that Defendants Lamar, et. al knowingly and willfully infringed the copyright of “Don’t You Want To Stay.”3

Finally, Plaintiffs assert that in May, 2013, Plaintiff Musidex sent “a notice of Copyright infringement letter to Defendant Lamar’s attorney, described the aforesaid copyright infringement and demanded that Defendant Lamar cease and desist from all exploitation of “I Do This” and provide a full accounting as to the exploitation of “I Do This.” In March, 2016, Plaintiffs maintain that Plaintiff Golden sent a similar letter to Lamar, et. al.

Breaking Down the Complaint

I’ve examined a number of copyright infringement claims involving sampling, and, as with all of them, the claims made by Mattie Music Group and Hadley Murrell represent an incomplete understanding or misrepresentation of United States copyright law, as well as a dismissive attitude towards hip hop/rap music and the art of sampling itself.

First, I’ll address the Plaintiffs’ assertion that Lamar, et. al “did not create any new music for ‘I Do This,’” and that Lamar, et. al “did not simply ‘sample’ some of the existing music of ‘Don’t You Want to Stay,’” but rather made a "complete copy of the music of ‘Don’t You Want to Stay.” Clearly, the Plaintiffs do not understand what copyright infringement is or how it’s determined in a court of law. What's at question is not whether Lamar sampled — i.e. incorporated “a direct and complete copy of the music of ‘Don’t You Want to Stay” — but rather does the sample amount to actionable copying. In other words, at issue is how much of the Withers sample was used and, more importantly, how was it used, i.e. transformed? The answer to that question, which can be determined by a judge prior to a trial jury, is not found by simply assessing if the appropriation is an exact copy of elements of the appropriated work — by default, a digital sample represents an exact or complete copy of whatever it was sampled from. Hence, both the amount used and transformation aspects of the question are determined only by examining both works as a whole. Further worth noting: When it comes to amount used, what must be looked at is how much of the appropriated work was used, not how much of it constitutes the new work — i.e. not how many times it was used or looped in the new work.

In this regard, Lamar’s “I Do This” does contain new music. Sounwave’s production includes deft drum programming, a combination of a trap sound with elements of classic electro hop. In addition to Soundwave’s beat, “I Do This” contains two separate verses by Lamar, one verse by rapper Jay Rock, and a chorus. Further, “I Do This” does not make use of a “complete” copy of Withers’s “Don’t You Want to Stay,” but rather it incorporates a sample — a roughly 8-second snippet — of the recording “Don’t You Want to Stay.” A “complete copy” of Withers’s “Don’t You Want to Stay” would mean that Lamar used “Don’t You Want to Stay” in its entirety without any transformation.

That the Plaintiffs in this case go so far as to ignore the obvious and allege that Lamar, et. al “did not simply ‘sample’” indicates their lack of understanding of what sampling is and how copyright law in the U.S. actually works. Notwithstanding the fact that digital sampling is a musical process and form of borrowing (copying) widely recognized in the courts, the Plaintiffs’ argument that Lamar, et. al’s copying is not sampling because it makes use of a “direct” copy of the sound recording (which Plaintiffs do not own) is preposterous. Moreover, the Plaintiffs in this case seem to believe that copying of any length constitutes copying in total. But that’s not how it works. As I describe in my book The Art of Sampling, not all forms of copying are actionable, i.e. illegal. Which is to say that all copyrighted material is subject to the de minimis and fair use doctrines — both doctrines speak to when and how an instance of copying is legal under the law. Though different in scope, both of these doctrines weigh the amount of copyrighted material used in coming to a determination of permissible copying. In the case of Lamar, et. al’s use of Withers’s “Don’t You Want to Stay,” the amount used is fairly insignificant, as the sample used constitutes only about 8 seconds of Withers’s 4-minute song. Moreover, “I Do This” represents a significant transformation of the Withers sample; and it’s my opinion that this transformation easily meets the fair use threshold. (Fair use, which examines four specific factors, one of which being amount used, is quite complex and often deeply misunderstood. For a solid understanding of fair use, I urge you to read The Art of Sampling.)

Next, I’ll address the Plaintiffs’ two “cease and desist” letters, what they described as “notice of Copyright infringement” letters, in which they demand “a full accounting as to the exploitation of ‘I Do This.’” A cease and desist letter is a common device copyright holders use to persuade parties, whom they believe are infringing their works, to stop. A cease and desist letter is not a notice of copyright infringement. While some appropriations (i.e. copying, borrowing) — be they in literature, music, photography, etc. — may likely be an infringement, the actual determination of copyright infringement must be made in a court of law on a case by case basis. And with regards to the Plaintiffs' demand that Lamar, et. al "provide a full accounting as to the exploitation of “I Do This,” a cease-and-desist letter — no kind of letter, save a court order — can force someone to provide such information. Thus, either the Plaintiffs knew that this was a silly over reach that no half-decent lawyer would ever fall for, or they believed that Lamar, et. al didn't have half-decent counsel.

Finally, I’ll address the Plaintiffs’ "so-called Rap or Hip Hop lyrics” description. Complaints are carefully written by lawyers who utilize words that they hope will persuade judges. And, whether intended or not, complaints often include descriptions that also reveal the biases of the people filing them. In the complaint filed against Lamar, et. al, the Plaintiffs use the “so-called Rap or Hip Hop lyrics” description twice. I believe there are only two reasons the Plaintiffs make this distinction: a) To suggest to the court that “Rap” or “Hip Hop” lyrics are an other type of lyricism, a lyricism unworthy of recognition or the respect given presumably to other forms of songwriting — a lyricism undeserving of being taken seriously as “new music”; or b) They were simply incapable of hiding their bias against “Rap” or “Hip Hop” as a legitimate music form.

Critical Observation (A): You Can Be Sued for Samples on a Free Mixtape

As I’ve pointed out before, because a mixtape is free, it does not mean that the samples on it are automatically non-infringing. So someone who makes and/or distributes a free mixtape that contains samples on it can be sued for copyright infringement. One of the most notable recent examples of this fact is the lawsuit that Lord Finesse filed against Mac Miller. The lawsuit never made it to trial — as Miller and Finesse settled out of court — but what was at dispute was Miller’s use of Lord Finesse’s instrumental track (beat), unchanged and in its entirety, from his song “Hip 2 Da Game” (1995) on Miller’s song “Kool Aid & Frozen Pizza,” off of Miller’s K.I.D.S. mixtape. Miller never said that he made the beat, nor contested that the beat was Finesse’s, but Rostrum, Miller’s label at the time, implied that the use was OK since K.I.D.S. was a free mixtape and, thus, they never profited from Finesse’s music.

Notwithstanding the fact that the free K.I.D.S. mixtape was used to help launch Mac Miller’s career (he was able to earn revenue from shows and other means), just because the unauthorized used of a copyrighted work — any copyrightable subject matter — is made free does not exclude it from copyright infringement.

But all of this said, also bear in mind that this does not necessarily mean that the filer of a copyright infringement suit will prevail in court. Miller could have taken his chances in court using the affirmative defense of fair use. There is a huge misconception in the United States that someone is guilty of something whenever someone else files a lawsuit against them. Wrong. The United States is one of the most litigious nations in the world; here, people file frivolous lawsuits all the time. For example, Jay Z was recently sued by TufAmerica for a sample that he used in his song "We Run This Town." Manhattan Federal district judge Lewis A. Kaplan dismissed the copyright infringement case brought by TufAmerica, citing: the sound “has essentially no quantitative significance” to the original composition and thus cannot be protected by copyright law.4 Many samplers would likely win in court if they choose to contest the lawsuits their hit with, but routinely, they don’t because they lack the financial and legal resources to take a case to trial, a reality that many who file lawsuits count on.

This is significant, because I Lamar actually does have the resources and, more importantly, the grounds to fight this case. If I were advising Lamar, et. al, my first move would be to file for declatory judgment and seek relief on two grounds: 1) That the Plaintiffs in this case do not own the copyright in the sound recording of the Withers song and thus lack standing; and 2) That the use is fair use.

Critical Observation (B): The Art of Sampling Continues to Be a Valuable Art Form

That Kendrick Lamar (like Mac Miller, Drake, and others) used samples on free mixtapes to help kick start their careers raises one big question: Are artists more cavalier earlier in their careers, or are they simply unaware of what copyright law actually proscribes? I believe it’s a combination of both. But what’s equally important is what this trend says about the value of the art of sampling. Very few discussions (and I’m being generous) in this space ever center around or profile how deeply valued the art of sampling is in hip hop/rap music, as the focus is always on the headline-grabbing copyright infringement lawsuit.

But the reality is, plenty of artists have turned to — and will continue to turn to — the art form and style aesthetic of sampling to kick-start their careers. This is mainly because many artists have viewed — and still view — sampling (sample-based beats) as a reliable means to flushing out their creativity. Further, plenty of artists have used sampling to form and maintain a link to (and comment on) history.

Yet, once established, many of these same artists tend to avoid sampling. Is this simply due to evolution as some (often musically pretentious) people like to suggest? I don’t think so. I believe some artists move away from sampling purely on aesthetic grounds, ie. for the purposes of expanded their musical pallets. Others do so to broaden their collaborative opportunities as well as expand the diversity of their audiences. But all recognize the serious drawbacks to sample clearance. But let’s be clear, the dislike for sample clearance does not mean that artists dislike sampling. Stated another way, I believe that if there were a more efficient, cheaper path to sample clearance, more artists would continue to make sampling a hallmark of their creativity.

Critical Observation (C): We Need a Compulsory License for Sound Recordings; and Artists Must Learn About Copyright Law, Especially De Minimis and Fair Use

Consider the compulsory license for nondramatic musical works that already exists in the United States. Under this compulsory license, which addresses the musical composition, i.e. the artist’s music in written form, individuals are permitted to make “covers” (i.e. new versions of a pre-existing sound recordings) of musical works. To take advantage of this compulsory license, all a recording artist need do is simply provide notice to the copyright holder(s) and pay a royalty, which is a fixed mechanical rate — no upfront usage fee is required. If there was a compulsory license for sampling, something in league with the compulsory license for nondramatic musical works, there would be an explosion of new sample-based music. Free from the arcane processes and restrictions of the ad-hoc sample clearance system that we have to day, artists would be able to sample from whatever song they wanted, just as artists can do full covers of whatever song they want to under the existing compulsory license for nondramatic musical works. As such, artists would be liberated to incorporate the art of sampling as they saw fit, without any sample clearance issues.

Furthermore, with a firm understanding of how copyright law works, specifically the de minimis and fair use doctrines, artists would be empowered to sample in ways that do not likely rise to actionable (i.e. illegal) copying. Thus, with a compulsory license for sound recordings in place, and solid grasp of the de minimis and fair use doctrines, I believe both existing and new artists would make sampling a hallmark of their creativity.

The music and video below is presented here for the purpose of scholarship.

Bill Withers - "Don't You Want to Stay"

Kendrick Lamar feat. Jay Rock - "I Do This" (prod. by Sounwave)


1 Mattie Music Group et al v. Lamar et al, U.S. District Court, Central District of California, No. 16-02561.
2 id.
3 id.
4 Tufamerica, Inc. v.. WB Music Corp. et al, 1:13-cv-07874 S.D.N.Y. (2014); also see, “Judge Dismisses a Suit Over Jay Z’s ‘Run This Town,’” Joe Coscarelli, (New York Times, December 9, 2014).

The Art of Sampling by Amir Said (Sa'id).
"The most trusted name in beatmaking."

April 14, 2016

BeatTips MusicStudy: Gwen McCrae - "90% Of Me Is You"

The gateway record for my path to deeper diggin'.


Gwen McCrae

Just as there are gateway beat machines and beatmaking tools, there are also gateway diggin' records. Gwen McCrae's "90% of Me is You" served as such a song for me. Before I heard this record, my approach to diggin' for records was casual. I would search for records and recording artists that were popular, or at least the ones that I had faintly heard of. When I picked up Gwen McCrae's album Rocking Chair, the goal in mind was for one song, "90% of Me is You". Little did I know what was on the other side. Still, I must've listened to "90% Of Me Is You" at least 5 times a day, for six months straight.

Everything about this song is dangerous. There's the opening guitar riff. It's warped (a sound that you hear throughout). There's the second guitar that seemingly plays off in its own rhythm, yet it never leaves the pocket of the entire groove even though it skips across the arrangement randomly throughout. There's the bass line, for the most part a simple but steady anchor that goes Up and down, down and up, up and down before it rounds off the end of the second bars with a small break in the pattern then it repeats. For the bridge, the bass joins the rest of the instruments for a change in the pitch. Then there's the strings, a polite soaring pattern that puts you in the mind of a Gamble & Huff produced arrangement, only hear the strings do more simmering rather than soaring.

Of course, I'd be remiss if I didn't mention the drums. The hi-hat has a ticking sound that floats over the top of everything and punches in and out with urgent gracefulness all at once. The kick and the snare pattern is a simple K K S K K S pattern (I cover drum patterns in great detail in The BeatTips Manual
), but because it' so tight, it's combination with the hi-hat makes for an incredible swing rhythm and shuffle, perfect for Gwen McCrae to ride the groove with her earnest and searingly soulful vocals.

It's worth pointing out that I learned more about how to create drums and drum patterns from this song than I did listening to any hip hop/rap song. From how to create swing naturally through the use of certain drum sounds, to how to shuffle my hi-hats, to how to incorporate the right velocity and sustain for open hi-hats, to how to anchor my kick drums so that their movement sits with the arrangement... No doubt, "90% of Me Is You" was important to my understanding of music and my development as a beatmaker.

The music and video below is presented here for the purpose of scholarship.

Gwen McCrae - "90% of Me is You"

The BeatTips Manual by Amir Said (Sa'id).
"The most trusted name in beatmaking."

April 04, 2016

Kool G Rap — “Sad” (prod. by DJ Supa Dave); This is Sirloin Hip Hop

DJ Supa Dave's soulful beat merges with Kool G Rap's poignant rhymes, exhibiting top quality rap music.


Kool G Rap sits atop the food chain of the complex, street poetics, and reality rap rhyme styles. In fact, more than 20 years ago, it was Kool G Rap—along with Rakim—who laid down arguably the most influential rhyme scheme foundation that only a handful of rappers (notably Nas, Ghostface, AZ, Black Thought, and OC) have been able to decipher and admirably incorporate into their own flows today.

Here, on "Sad" (produced by DJ Supa Dave), Kool G rap revisits his roots, both artfully and emotionally. Although the rhymes echo the constructions of a style gone past, on we hear a more subdued and reflective G Rap. He seems to no longer be able to numb the pain of growing up in the brutal New York City streets, which, in addition to housing the familiar traps of drugs and violence, also carries the threat of disloyal women. G Rap's decidedly deadpan and subdued delivery on "Sad" is fortunate for fans of lyricism and content, as great lyricists are most often at their best on two occasions: when they're numbed by their surroundings, or when they can't help but feel it.

Salute to G Rap for the maturity of his rhymes on "Sad," but I would be remiss if I failed to mention that DJ Supa Dave's beat is perhaps the catalyst that fed the flow. Supa Dave's beat churns over like a Detroit assembly line banging out work in a Memphis studio. The drums are iron-like, clickin' and clangin' to the primary sample, while yet still giving the vocal clip room to breathe and ease through the entire measure. Master beatwork.

The music and video below is presented here for the purpose of scholarship.

Kool G Rap – “Sad” beat by DJ Supa Dave

The BeatTips Manual by Amir Said (Sa'id).
"The most trusted name in beatmaking."

April 01, 2016

Legal Loan Sharking: The Music Industry's Draconian Business Model

Understanding the music industry's loan-and-own contract model and why it should be prompting further independence, especially when music makers are more self-contained than ever before.


A film studio buys a script from a screenwriter. The screenwriter is paid a fee and the studio owns the script, and as such, the copyright to the script. Imagine if the film studio said to the screenwriter, "We're going to loan you money to write a script. When you're finished, we'll own the script and you'll owe us the money that we loaned you."

A publisher buys a manuscript from an author. The author is paid a fee for the right to publish the manuscript, but the author retains his or her copyright to the manuscript. Imagine if the publisher said, "We're going to loan you money to write a book. When you're finished, we'll own the book, we can publish it when and however we like, and you'll owe us the money that we loaned you."

In the music industry, labels front artists a recording budget — a loan — to record an album. Artists record their albums, then turn them in to the labels, who then own the exclusive copyright to the master recordings as well as the exclusive right to publish the album. For their services, artists receive a small royalty rate that's paid against the money that the labels fronted (loaned) them. Seem fair?

Music, easily one of the most important components of popular culture, is a booming business for radio, television, online publications, and more. On the surface, you'd think that recording artists, the music makers and actual bedrock of music itself, are well, if not reasonably, paid. Think again. Sure, some of the A-List recording artists score fat royalty checks, in addition to huge concert/show paydays. Still, even most A-listers' contracts are tied to the music industry's model of loan-and-own. Some A-Listers work deals that grant them ownership of their masters, but this is rare and usually only after some considerable time in the business. The truth is, the overwhelming majority of recording artists are locked into the loan-and-own model, which means that most never see a royalty check throughout their entire recording career.

The reason why most recording artists never see a royalty check is because when it comes to recording contracts in the music business it is, and has always been, a legalized form of loan-sharking. The comparison of a bank loan is the most popular analogy of for how recording contracts work in the music business. The idea is that a record label loans money to a recording artist for the purpose of creating new art. When this new art is marketed and sold, there is a split in profits between the label and the artists. The split is typically 88-93% for the label, and 7-12% percent for the artist. In other words, artists routinely sign contracts that give them a base rate of 7 to 12 cents on the dollar. Throw in a 5 cent royalty for each song that an artist writes on the album, and an artist can earn up to 40 or 60 cents per album sold. But none of these royalties are paid until the artist is recouped — i.e. until the loan is paid back.

It's important to remember that the masters of this newly created art belongs 100% to the label — unless some proportional agreement is made to stipulate otherwise, which of course is extremely rare. Though artists are entitled (supposedly) to a cut of the returns, there is no split in ownership between the labels and the artist. Further, the label retains the right to withhold royalty payments or apply would-be royalty payments to the debt (all monies the label spent on the artist) of the artist. Once an artist has recouped, satisfied their debt, presumably they begin to receive royalties. Note: When an artist has repaid their entire budget, they are said to be fully recouped. But typically, artists never fully recoup. And thus, it's very common that artists wind up owing their label indefinitely.

This is why the bank loan analogy, that many people like to use, is grossly inadequate. Even a traditional bank loan for consumers with the lowest credit scores is more favoring than the loan terms that recording artists are forced to agree to in a standard recording contract. For example, when a person with absolutely flawless or appalling credit receives a car loan, they gain 100% total use of a new/used car. For all intents and purposes, the car belongs to them. At anytime within the agreement, this person can refinance or actually sell the car. Moreover, at the end of the agreement, usually no longer than five years, the car belongs to them free and clear. In the music business, recording artists almost never own their work, even after the initial agreement that they entered is long over. Furthermore, the only actual usage right that artists retain of the music they create is the right to perform the album at concerts and such — i.e. touring. They can not however resell it, without the permission of the label that they're signed to.

Because of the labels legal-loan sharking and other practices, I caution people to remember that independence is not merely avoiding relationships with the labels, but rather learning how to preserve the best terms for you as an artist. The biggest advantage to working with a label is being able to access their marketing, promotion, and distribution power. But this access should not come at the cost of a draconian business contract. Hence, I always advise artists (producers are also artists) to form their own entities so that they are better prepared to negotiate with labels. For instance, I release all of my music through my company. If and when I were to ever enter an agreement with a major label or distributor, the agreement would only be for distribution. Which means that regardless of whatever money the label or distributor fronts me, I own the copyright to my masters.

Today, many artists are self-contained and are recording complete albums long before labels get involved. So you would think that artists are increasingly signing straightforward distribution deals. But that's largely not the case. Even most self-contained artists are still signing loan-and-own deals and giving up ownership to their masters. But know this: If you have a finished album, you don't have to give up your ownership to your masters. If a major label or a distributor is interested in your project, you can and should avoid the legal-loan sharking system.

The music and videos below are presented here for the purpose of scholarship.

Check out DJ Jazzy Jeff (pre-Will Smith Hollywood fame) as he talks about the highs and lows of winning a Grammy.

The BeatTips Manual by Sa'id.
"The most trusted source for information on beatmaking and hip hop/rap music education."

Dedicated to exploring the art of beatmaking in all of its glory.

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