Question for Jeff or Anyone Else Familiar About the Music Industry

Bill Leeb is a name I haven't heard for years. Come to think of it I haven't heard Front Line Assembly for years. Caught them on tour back in 1989 at Numbers. I think I'll do a search for some stuff on the net now that you've brought them up.

I don't know the answer to your question, but I would be interested in knowing it considering I imagine a considerable amount of stuff was sampled by the likes of Front Line Assembly, Skinny Puppy, Severed Heads, etc.

By the way, Manny, maybe you can clear something up for me. Is Bill Leeb another name for Wilhelm Schroeder (formerly of Skinny Puppy)? I heard that years ago and never pursued finding out if it was so.

 

I found the answer to my own question in an interview with Bill Leeb.

Alan: Back when you were working with Skinny Puppy, was there a reason you decided to change your name?

Bill: Actually, my real name is Wilhelm. Schroeder we picked out from the guy playing the piano in the Charlie Brown cartoon. Kevin said, "Hey, you should call yourself Wilhelm Schroeder," cuz it was cEvin Key and Nivek Ogre, those weren’t their real names. That was more of a joke thing.

 

It's all done on an ad hoc basis. Any arrangement that you can negotiate, be browbeaten into negotiating, or simply decide on without getting your legal butt kicked is fair game.

So either the guy you mention hasn't made enough money for anyone to notice (or complain about) him stealing, or he's splitting royalties without giving writing credit.

From a great article on the subject:

That is the way it works inside R.E.M. "We've always gone for a four-way split," says [Peter] Buck. "The way I look at it, you're getting songwriting credit for riding around in the van for five years, not having a house or a girlfriend or any money. We go so far as to cut in people who aren't in the band, like [attorney] Bertis Downes. He's getting paid for all those years he did legal work for free, including getting us our own publishing company before we even had a record deal."


Here is what one article has to say about the legal standard involved:

Unfortunately, there is no official rulebook as to when a contribution merits getting a songwriter credit. The standard used by the courts is pretty slippery: Judges ask whether the contribution, by itself, would be copyrightable--that is, could the contributed part be protected apart from the song? In asking this question, judges are checking for evidence of a high degree of creativity. They found it in one recent case, when the court determined that Billy Strayhorn's sophisticated harmonies on "Satin Doll" were distinctive enough to merit co-writer credit with Duke Ellington. By the same token, if he hadn't already shared writing credit for "Satisfaction" with Mick Jagger, Keith Richards would have a strong case, based on his opening guitar riff; unless you're a member of Devo, that hook is as indispensable to the song as the lyrics or the melody.


And here's an article on the fun you can have with writing credits/royalties if you're famous.

 

I know a little about this, especially seeing as how the record my band and I made about a year ago is COMPLETELY illegal from a sampling standpoint.

for starters, a musicmaker is only on the hook for crediting and/or paying another artist if the "sampler" is actually using a recording of another artist or group's work. this has to do with what are called mechanical licenses. a good example of an artist who gets around this rule is p-diddy.

case in point: I did a song called "Vote, Ladies", and in that song, I used jimmy page's "Heartbreaker" riff. because I now sell an album with that song on it, I technically should have negotiated a fee with page's lawyers for the rights to use that recording. however, if I was p-diddy, I would have simply gotten another guitarist who could find the exact tone and could play the riff in a virtually indistinguishable manner. if I'd done that, I wouldn't owe page or l.z. jack squat. if that doesn't make sense, it's because most of copyright law doesn't make all that much sense. you're only on the line for money if you use the original recording. this is why, in some liner notes, you'll see "samples taken from" and in other liner notes, you'll see "contains replayed elements from".

anyway, bottom line: payment is only necessary if the original recording is used. so some of the times when you're not seeing credit being given, it may be because some copying genius has just replayed it instead of sampling it.

now, I also think that [going back to the jimmy page example] the crediting or attribitution may be up to jimmy page. payment is not optional, but I think page may have the right to say, "hey, I think your song is ****e. I don't mind you paying me money for using my riff, but don't credit me. I don't want my name attached to what you've done." I'm not certain about that, but I think that may be another reason you may not always see every name credited, even for things you know you're hearing in a song.

one last bit about all this that makes things confusing is that I believe that the copyright laws that now regulate all this stuff are still relatively new. I know that, as recently as the late 80s, you still had tons of artists [PE, neneh cherry, etc.] jacking beats and samples and not dealing with it beforehand. the song "Caught Can I Get A Witness" I believe is about this issue. so, depending on how recent the music you're listening to is, the sampling may not be credited because it may have been done before the legal community caught up to the music industry/sampling community.

plus, like Swopa said, there is the Little Fish, Little Pond issue.

when I made my record, I decided to sample liberally and illegally [meaning I didn't pay for any of it; I couldn't have; it would've been ridiculously expensive] because I felt pretty certain that I would never be moving enough copies of my cd, and more importantly making enough money, for me to be important enough for REM, living colour, led zeppellin, big daddy kane, aaron copland, public enemy, U2, fleetwood mac, kool moe dee, simon & garfunkel, the makers of Die Hard, Se7en, The Shawshank Redemption, Reality Bites, Heat, The Professional, Conspiracy Theory, Pulp Fiction, Glengarry Glen Ross or Grosse Pointe Blank, d-nice, prince, tracy chapman, arrested development, sinead o'connor, andrew lloyd webber, run dmc, take 6, duran duran, garbage, jimi hendrix, randy newman, the thompson twins, helmet, eric serra, phillip steir, herbie hancock, eric b and rakim, de la soul, the d.o.c. and dr. dre, james brown, talking heads, fatboy slim, lenny kravitz, new radicals, nine inch nails, johhny cash, johann sebastian bach, and/or the fat boys to come after.

plus, that would have been a lot of lawyers to contact for a record that's sold about 150 copies.

anyway, hopefully this convoluted and longwinded post will have at least partly addressed your initial question as to why you sometimes see credited samples and sometimes you don't.

technically, though, if anyone uses anyone else's recording of anything [burping, farting, anything] on their own recording, payment is supposed to be made. crediting may be optional as to the preference of the person whose recording is being sampled.

 

I know.

my list reads like the roster of guest presenters at the Oscars or Grammys aka Playedouties.

 

Manny: Sorry I got here late. Been sick.

Anyway, good stuff posted on the subject. I would just like to point out a couple of things.

chievous was not entirely correct about sampling music. The courts have been fairly clear on taking bits of songs whether you (or a band member) actually performed them or it was taken from the orginal recording.

He is right in saying that mechanical licencing (the actual copyright of a song) does protect the recorded work, BUT there are two forms of copyright - one for the recording and one for the WORK. In essence, Jimmy Page owns the Heartbreaker RIFF, not just the recording of it he made back in the early 70's.

There is a catch to all this. In general, if your song is not built around the riff or if it does not form a substantial amount of time in the recording, you can almost always get away with a performed version. You still can't get away with a direct sample, but it isn't hard to perform it.

However, if the song requires the sampled part to be a song, you can get nailed for it.

In chievous' case, it is probably no big deal. As he said, if he doesn't think he'll move enough copies to make a difference, then no biggie.

If you do want to use material, generally you go through The Harry Fox Agency which handles the licencing of copywritten material. It isn't terribly expensive but it can add up if you use a lot of samples.

Entertainment law is some of the trickiest law out there.

 

the thing that makes it confusing, as Jeff points out, is that there are really 4 variables at play when you're talking about sampling vs. replaying:

1) the music that comes out of the mind
2) the music that exists on a recording
3) paying the person who "thought up" the music
4) getting permission from the person who "thought up" the music

Jeff is right in asserting that jimmy page owns the riff from "heartbreaker" [assuming michael jackson hasn't bought the rights to that, too]. what he really owns is the string of notes played in a certain order at a certain rhythm. page's record company owns the recording of "heartbreaker".

if I want to use the recording of "heartbreaker" in my recording, then I have to get the record company's permission. to do that, I'll probably have to pay a fee [to the harry fox agency, as jeff pointed out, who brokers the deal].

I would not have to give credit, I don't suppose, unless that's part of what is stipulated by harry fox, the record company, page. . . whoever I'm getting permission from. they're the ones giving permission, so they're the ones who decide the terms of the deal. to my knowledge, there is no firm, established fee. it's whatever the person who owns the recording says it is.

now, if I want to get a guitarist to play the heartbreaker riff, I do not have to have anyone's permission. that's the difference. I still have to pay publishing rights to whoever "owns" the "thought up" music [presumably page]. but, in the case of replayed elements, I don't have to have permission.

it all comes down to recognizing the music and the recording of the music as two separate entities.

as Jeff said, it gets even trickier once you start trying to figure out whether a song can still be a song independent of its samples. in the song where I used the "heartbreaker" riff, you could easily take that riff out, and it's still a song. in the case of the song "twisted" from a few years ago, by keith sweat, I'm not sure it's as clear whether that song could still exist if you took out all the stuff from marvin gaye's "sexual healing".

I believe the standard the court uses in determining whether permission and payment have to be made is whether an average person would be able to recognize the one piece of music from the other. in other words, if I play a riff on my guitar where every note is the exact same as page's in "heartbreaker", is the average person going to be able to listen to mine then to his and say, "yeah, they're the same". obviously, if I play it exactly the same way, they're going to be able to tell. but what happens if I change the 2nd and 4th notes? then, it gets trickier.

one thing I most definitely agree with Jeff on is that it doesn't get much trickier than entertainment/copyright law.

here are some absolutes as I understand them [Jeff, you tell me if you disagree with any of these]:

1) if I want to record a cover of LZ's "heartbreaker", I do not have to have their permission, but all publishing royalties would go to them. since it's a new recording, the mechanical royalties would stay with me or more likely my record company.

2) if I want to record a new song that is built around or that features the replayed riff from "heartbreaker", again, I don't have to ask anyone's permission, but I might have to pay them publishing royalties subject to whether an average person would be able to tell the difference between the "heartbreaker" riff as played in my song and the "heartbreaker" riff played in their song.
ie. when puffy did "every breath you take", the way I understand it, he did not have to have sting's permission to do that. he just had to pay sting pretty much every dime worth of publishing. this, to me, is the big difference and the thing I want to make sure I understand correctly.

3) if I want to sample from page's recording of the riff, I definitely have to pay page's record company through harry fox, and if they don't want me to use it, they can say no no matter what I offer to pay them. if I use it anyway, I'm breaking the law.

or, here's another way of looking at it:

- to sample someone, you have to get their permission first, then pay for the mechanical and the publishing

- to cover someone, you don't have to get their permission first, but you do have to pay publishing

- to replay something by someone, you don't have to get their permission first, but you do have to pay publishing IF an average person would not be able to tell any difference between what you play and what they played

right?

by the way, to get back to your original question regarding credit being given. . . as I mentioned before, if it is a true sample [where one artist is using another artist's recording in a second recording], I believe credit has to be given only if that's the negotiated deal. there may be some instances [maybe even the vanilla ice example you mentioned] where artist A is willing to take some cash for their sample, but they don't want to be associated with artist B. in this case, artist A might even require artist B NOT to credit them. other times credit may be optional. certainly, sometimes. artist A will require credit for their work.

Jeff, have you ever used any samples on any of your recordings? have you ever gone through the Harry Fox process? if so, I'm just curious to know what kind of money they wanted for different things. . .

 

First off, good stuff, chievous.

Not true. You do have to obtain permission to cover the song just as you would to sample it. For example, my partner and I are recording a cover of Pete Townsend's "Let My Love Open the Door" in a ballad format for a children's album we are working on. In order for that song to appear on the record, we have to get permission.

In this case, that song is covered by the Fox Agency and we just had to pay them like $75. We also will have to submit other info when the album is released - UPC code, album title, etc. This is for the purposes of tracking sales and airplay for royalties. The fee charged is dependent upon a variety of things but mainly what the artist wants and how many CD's you plan on pressing (less than 5000 or more than 5000 is the standard measurement).

Not everything goes through Fox, however. We are still trying to obtain permission for another cover because we have to go directly to the source which isn't easy when the source is Bruce Springsteen.

Not really true. You almost always have to ask permission for this in the same way as #1. The difference here is that you generally have to go to the artist because, in many cases, song copyright is split up into words and music. So, if it is just the music, you have to go as for just that.

On almost every one of these situations that I've heard of, the artist receives formal permission from the copyright holder before moving forward. Usually, they have to pay money up front and agree to give some percentage of publishing. If the song is a single, like Puffy's, Sting probably got quite a bit of money up front, publishing and maybe even some royalties from the song. Since the song was so popular, it was a small price for Puffy to pay.

It isn't really the record company, it's the owner of the recorded copyright. There are two types of copyrights, one that covers the song and one that covers the performance. The "song" refers to the chord structure, lyrics, etc no matter what form it takes. The "performance" is the actual recording of the song on what the copyright office calls a "phonorecord". For example, a song may have a variety of copyrights for different circumstances. It will be copywritten for the song itself and then for each subsequent performed recording - a studio album, a live album, a remake, etc.

The record company may or may not own rights to that performance depending upon the contractual agreement between it and the artist. Sampling is handled by Fox and another agency though the names slips my mind at the moment.

I have not sampled anything but I have done covers and used the Harry Fox process as I mentioned above. It was really pretty easy. I did it online with a credit card.

 

manny, if you're interested in reading more on this dry and difficult to understand topic, I found you some links. . .

this one has a short write-up on the specific vanilla ice case:
http://www.benedict.com/audio/vanilla/vanilla.asp

here's a pretty comprehensive site about sampling/copyright law [one problem being that it's a british site so it could be detailing non-american law; some of the international stipulations differ]:
http://www.low-life.fsnet.co.uk/copyright/

here's another good site on sampling/copyright law:
http://www.music-law.com/sampling.html

here's a real good answer to the cover song/copyright question:
http://www.inyoureye.com/html/jbutler2.html

oh yeah, to get back to your original question [regarding the massive attack samples, etc.]. . . one other possible explanation for what you're hearing is this:

I don't know how massive attack works, but if they're like a lot of other electronic musicians, they may be using stuff on their records that they get from license-free sample cds. you may have heard something on a massive attack cd that they got from a cd created by someone else for use by musicians.

if that's the case, FLA may have used that same secondary sample cd. if that were the case, neither group would have to give credit to whatever musicmaker put the sound they both used on the sample cd they both used.

and then, if you heard the massive attack recording before you heard the FLA recording, it might sound like FLA had copied massive attack when, really, they had both just legally borrowed a sample from a cd intended for that purpose.

that may not be what happened, but it is at least one possible explanation of why you could hear the same musical fragment on two different group's cds without either group being credited. if this was what happened, neither group would be in the wrong.

anyway, I hope some of this has been helpful. I'm going to go pull all my hair out now.

 

Speaking of groups using other songs...anyone heard the new one from Jay Z and R Kelly "Honey"?? They use "Love You Inside And Out" from the Bee Gees. I love it 'cause I love the Bee Gees.
They don't call me Old School for nuttin'.


It takes a man secure with his masculinity to admit he loves the Bee Gees.

os

 

Or one with a bad taste in music!

J/K

 

Yes! I knew I could buy a vote or two some way or another!

I have their recent greatest hits, their Las Vegas live cd and, of course, the Saturday Night Fever soundtrack.


os