Digital Sampling and Cultural Inequality
| Published date | 01 March 2006 |
| Date | 01 March 2006 |
| Author | David Hesmondhalgh |
| DOI | 10.1177/0964663906060973 |
| Subject Matter | Articles |
DIGITAL SAMPLING AND
CULTURAL INEQUALITY
DAVID HESMONDHALGH
The Open University, UK
ABSTRACT
This article brings together insights from legal studies with methods of analysis and
areas of concern characteristic of media, cultural and music studies. My particular
interest here is in how the uses of digital sampling by musicians, and legal practices
surrounding these uses, affect how we might think about the issue of cultural
‘borrowing’, especially when white musicians borrow from black ones. This in turn
throws light on the relationship between, on the one hand, music and copyright law
and practice, and on the other, systemic forms of social and cultural inequality. While
I agree that copyright law, in constructing digital sampling as unlawful without the
permission of the originator of the sample, has tended not to encourage forms of
creativity associated with African-Americans and other disempowered social groups
(notably sample-based rap and hip hop music), I suggest that arguments for a
generous fair use provision for sampling may not always favour the interests of musi-
cians from less powerful social groups either. I do so by reviewing public debates and
academic work about borrowing and appropriation in music, and by presenting a case
study of one particularly notable recent example of digital sampling and cultural
borrowing: the use by the international dance-pop superstar, Moby, of samples of
African-American musicians on his album Play. Because these samples were drawn
from recordings made by the archivist and collector Alan Lomax, this also raises
issues germane to recent debates about the role of ethnomusicology and other schol-
arly activities in providing materials for cultural production.
KEY WORDS
copyright; cultural appropriation; digital sampling; fair use; musical borrowing;
Moby
SOCIAL &LEGAL STUDIES Copyright © 2006 SAGE Publications
London, Thousand Oaks, CA and New Delhi, www.sagepublications.com
0964 6639, Vol. 15(1), 53–75
DOI: 10.1177/0964663906060973
DIGITAL SAMPLING AND MUSICAL APPROPRIATION
RECENTLY, SCHOLARS from a variety of disciplines and perspectives have
become increasingly interested in questioning the relationship
between black musical practice and copyright law. All these scholars
in one way or another focus on how assumptions about musical creativity
embodied in western copyright law and practice may clash with the assump-
tions of musicians working in African-American and indigenous musical
cultures (e.g. Seeger, 1992; Greene, 1999; McLeod, 2001). Many focus on
digital sampling, for although sampling is used extremely widely across many
popular music genres, including rock and pop, it forms a particularly import-
ant part of rap, where the recombination of sometimes-familiar sounds,
especially but not exclusively rhythmic elements such as bass and percussion
parts, is a crucial element of how musicians and audiences judge creativity.
The conflict between Anglo-American copyright law and sample-based rap
music is obvious: the former protects what it calls ‘original’1works against
unauthorized copying (among other activities), whereas the latter involves
copying from another work to produce a ‘derivative’ product, raising issues
of infringement of copyrights in both composition and sound recording.
Henry Self (2002) has argued that the debate over the compatibility of digital
sampling and copyright law is a manifestation of ‘a broader tension between
two very different perspectives on creativity: a print culture that is based on
ideals of individual autonomy, commodification and capitalism; and a folk
culture that emphasizes integration, reclamation and contribution to an inter-
textual, intergenerational discourse’ (p. 359).2According to this view, copy-
right, intended as a means to promote the arts, is used to stifle creativity,
especially forms of creativity associated with marginalized social groups.
Nonetheless, Thomas Porcello (1991) has suggested that rap and, by exten-
sion, sampling in general, have a tendency to undermine the notion of intel-
lectual property embodied in copyright law. He argued that ‘rap musicians
have come to use the sampler in an oppositional manner which contests capi-
talist notions of public and private property by employing previously tabooed
modes of citation’ (p. 82). For Schumacher (1995) too, sampling technology,
especially in the context of rap, by so readily lending itself to the mixing of
different voices in a musical text, implicitly challenged ‘the concept of the
singular artist as the only embodied voice in the text’ (p. 268), a concept upon
which, in his view, copyright was reliant. Finally, and importantly, McLeod’s
(2001: 145) more recent contribution to this debate argues that because
samples generate new meanings that are distinct from their original meanings,
they should be treated as a fair use of copyright material.
Critics of copyright regimes and practices, then, have tended to be sympa-
thetic to sampling, at least in the case of rap, and with good reason in my
view. However, I want to explore some uses of sampling which might limit,
for defenders of black cultural practice, the attractiveness of widening fair
use provision. Sampling has continued in numerous settings apart from that
of rap, and other studies have exposed a complex cultural politics around
54 SOCIAL & LEGAL STUDIES 15(1)
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