The DIY Ethics of Sample-Based Music: How Punk Artists Challenged Copyright Law

I remember a friend of mine in 2009 had an entire album he’d spent 8 months working on pulled from stores three days before release because someone had recognized the two-second drum break he’d sampled from a obscure 1970s funk album. The owner of the original masters wanted $15,000 to clear the sample, and he had maybe $400 in his bank. The album was never released. I learned more from that day about the intersection of punk rock ethos and copyright law than any college music business course I took.

The Punk Attitude Toward Sampling

Punk didn’t invent sampling – in fact, its first proponents weren’t even part of hip-hop – but it did give sampling the attitude it always deserved. There’s this notion that sample-based music didn’t kick off until hip hop broke big and turned sampling into an art form in its own right. This isn’t wrong, by any stretch, but punks were already slicing up tapes in the late 70s and the 80s and shouting, “Who cares who owns this shit!” Negativland, the Residents, Culturcide… none of these were hip-hop groups. They were more punk-adjacent weirdo bands who believed that once something had become a part of the global cultural conversation it inherently belonged to everyone. And I’m not actually 100% sure whether or not those bands believed they actually had a leg to stand on with ‘fair use,’ or whether or not they simply gave no shits, but my bet is on the latter. And here’s a thought: they were right, ethically. The law, on the other hand, don’t care. Your intentions don’t matter to a copyright troll any more than they matter to your lawyer. A prime example of when diy mentality crashes hard against the legal corporate establishment can be found in Negativland’s ‘U2’ single where the band was literally sued into oblivion by Island Records over what a reasonable person would consider a parody. The same record label (SST Records, that is) which carried Negativland on its roster at the time cut ties with Negativland in favor of Island Records. Your takeaway? Your friends from your punk rock label have absolutely no qualms about throwing you under the bus to protect themselves when significant money or serious legal threats come around. Ultimately, the sample-clearance system we currently have in place exists to protect the catalogs of the rich and the powerful—not the artists. It effectively segregates the musical conversation, giving the ability to spend hundreds of thousands of dollars on a readily recognizable hook to only the biggest music corporations. If you want to sample in the year 2024, what can you do?

Practical Strategies for Sampling

Obscure Your Samples

The one that is the most universally applicable is: more obscured the better. The more you cut and dice a sample, pitches it up, warps it, layers it, and transforms it, the safer you will be. I’m not talking about becoming perfectly legal, but more safe. Law courts, after all, generally defer to the average consumer’s perception: will a typical consumer be able to tell what’s the original source for the samples you used? If your grandmother can’t even tell where that melody came from, chances are a court won’t either. And you’ll generally be much better off with a very obscure gospel record from ’74 than you would be sampling Michael Jackson. Most artists can attest that the biggest catalogs from the ’70s and 80s are monitored constantly and would certainly present some issues with usage rights. For real: I’m no lawyer, and frankly any sample clearance blog on the Internet you read giving firm advice on the subject is most likely a fraudulent one, but if you’re gonna take legal advice from a guy who is not a lawyer, I suppose I should. Lastly, and it’s a good one to be warned about: think about your distribution. A bandcamp distribution selling less than 200 copies isn’t nearly the issue a Spotify feature will be. Many artists have even resorted to producing different mixes of their music—one with samples for CD or Vinyl release, and one stripped down version for streaming. These are definitely not ideal but sometimes this has to be done.

The Philosophy Behind Sampling

This ethic of sampling had nothing to do with merely going about and breaking laws for the thrill of it all. This movement was based on the believe that access to the general cultural dialogue should not just be reserved for the affluent – and in the case of music samples that means that any access to the general discourse of music should be open to any one person, so what is in effect to say that there’s a concept of ‘ownership,’ that the creator of any particular cultural works has more of a claim of intellectual ownership on it than anyone else?

Think about it as being like real estate developers; in my area it seems they tear down buildings they never created in order to make them into new ones — just like the gleaming luxury condo near Raja Uda MRT is quickly reshaping KL’s architectural skyline by reimagining what luxury apartments may and may not resemble in the future, taking all this real estate that was once one thing and molding it into what most people only dream of… anyway, when your music producer is transforming the sound of old music into something entirely new, they’re ultimately building on top of the work of all of the people who before them had the audacity to think ‘this is for all of us,’ and who stood up against corporations and their legal teams to prove it.

Create a Lawsuit Folder

One thing to start doing (before you even release a sample-heavy track, mind you) — make a “lawsuit” folder that can hold your original files, documentation showing all your manipulation work, along with an honest assessment of the people and entities you’ve potentially ripped off — how big they are and how many lawsuits they’ve actually filed. This won’t save you, mind you – but the very act of thinking critically about that process before you actually put anything online will go a long way in minimizing your potential liability.