Unauthorised sampling in hip hop has been a legal minefield since the early ’90s, when the genre began to build into a commercial force, and artists whose works were being manipulated and reconstituted began to feel cheated.
It was, initially, more of a legal issue in U.K. dance music. The KLF (then named The JAMs) were one of the first high-profile acts to feel the legal force of this crackdown when they were ordered to destroy unsold copies of their sample-heavy album 1987 (What the Fuck Is Going On?), after ABBA filed a copyright claim.
An unsuccessful lawsuit attempted to stifle a 1989 song by hip hop group 2 Live Crew, which leaned heavily on Roy Orbison’s ‘Oh, Pretty Woman’. The court ruled it was a parody, and therefore protected by fair use, and that any commercial success was not a result of the Big O’s reputation, as the two songs were aimed at vastly different markets.
Two songs released in 1990 broadened the appeal of hip hop almost overnight: MC Hammer’s ‘You Can’t Touch This’ and Vanilla Ice’s ‘Ice Ice Baby’.
Both were based around prominent samples, and both artists settled lawsuits out of court by crediting the original artists: Rick James, whose ‘Super Freak’ is the basis of ‘You Can’t Touch This’, and ‘Under Pressure’, written by David Bowie and Queen, and from which the bassline was nabbed by Vanilla Ice for his frozen treat of a tune.
(A brief side note: due to this settlement, the songwriting credits for ‘Ice Ice Baby’ remain my favourite in musical history, being credited to Vanilla Ice, DJ Earthquake, Freddie Mercury, Brian May, Roger Taylor, John Deacon, and David Bowie. Even though I know exactly how this came about, I still like to imagine them all sitting around, spit-balling ideas in a room, Bowie asking in his clipped voice, “What do you think, Earthquake?”)
Both these cases introduced the idea of sample clearance as a legitimate legal concern.
A landmark ruling in a 1992 case saw Biz Markie’s album I Need A Haircut withdrawn from sale after it was deemed to “willfully infringe” upon Gilbert O Sullivan’s maudlin-as-fuck ‘Alone Again (Naturally)’. This spooked record labels, who made sure their artists were upfront about their sampling ways, and legally cleared these before commercially releasing a record. It both changed, and solidified the hip hop industry.
Now, note the use of the word ‘commercially’ in the above paragraph. Samples need only be cleared if the music they are used in is to be sold – which makes sense. Musicians are usually more-than-happy to clear samples, too, as it is a lucrative form of passive income, especially if the single is a massive hit.
A large part of hip hop, however, involves releasing music for free – in the form of mixtapes. Named due to their inception as physical cassette tapes, a mixtape usually involves an up-and-coming rapper showcasing his dexterity and lyricism over a series of established beats, often taken wholesale from already-familiar hip hop songs.
Mixtapes are promotional items for a rapper hoping to build an audience or get signed, and — due to the copyrighted beats — given away for free. They have also exceedingly become a way for rappers to release music quickly, and without the pressure, commercial expectations, or build of a tradition album. Lil Wayne in particular has turned the mixtape into its own legitimate artform – with a lot of his most acclaimed work coming in this form. Childish Gambino released a series of mixtapes named ‘I Am Not A Rapper’ in which he spat verses over Pitchfork-friendly indie songs of the era by artists such as Grizzly Bear, Sleigh Bells, and Animal Collective; songs which would have been prohibitively expensive to clear for commercial release.
Mixtapes are also dumping grounds for completed songs slated for albums but removed at the eleventh hour due to issues with clearing samples. ‘Control’ by Big Sean was intended as the centrepiece of his second studio album, and is often cited as containing Kendrick Lamar’s best verse, yet it was relegated to a free mixtape after Big Sean’s label couldn’t legally clear the sample it was built upon.
Enter jazz musician, composer, and — most crucially, it may turn out — lawyer Abdul Wali Muhammad. He has filed a lawsuit against Chance The Rapper for sampling his song ‘Bridge Through Time’ on Chance’s debut mixtape 10 Day (which he recorded during a ten-day suspension from school, in what must sit as one of the best examples that conventional schooling just doesn’t work). The song is question is ‘Windows’, and while Chance the Rapper has never denied he sampled the song, the idea of seeking permission doesn’t (yet) legally apply to mixtapes and most likely wouldn’t occur to a teenager well-versed in mixtape culture.
The entire six-page lawsuit can be read here, if you’re a fan of intense boredom, but basically Mohammed is claiming that, although Chance didn’t directly profit from the mixtape, as it was — and continues to be — available to be downloaded for free, he has “received profits from the marketing, promotion and sale of merchandise, performances, tickets to concerts and other performances as a result of” the sample. Basically, he is saying this mixtape launched Chance the Rapper’s career, and he wouldn’t be wrong.
If Muhammad’s case is successful, it will set a frightening precedent. As noted above, every modern hip hop artist from Kendrick Lamar to Nicki Minaj to Kanye West to your mate from school, has released one or more of these mixtapes containing uncleared samples. As it is an artform adopted at the beginning of an artist’s career — and therefore almost always directly related to their first flush of success — any composer who has been sampled in any popular rapper’s mixtape could rightfully claim the same thing as Mohammed. Again, they wouldn’t be wrong, either.
As the ‘Blurred Lines’ lawsuit has shown us, all it takes is one ruling to dramatically shift the legal landscape – now artists like Mark Ronson, Ed Sheeran, and Taylor Swift are preemptively crediting songwriters whose work bears little more than a passing resemblance to their own, in fear of later litigation. Ronson is in the middle of yet another of these suits as I type.
If this case results in a loss for Chance the Rapper, we will see all the vultures come out of the trees (do vultures live in trees?) and swoop on years-old songs given away for free. It will be a bloodbath, and could result in the removal of countless pieces of valuable art from the internet, as fearful artists erase any trace of their now-illegal work. There will be a lot of rappers losing money they earned from legitimate and legal album sales due to earlier demos that they didn’t make a dime off.
It won’t be pretty, and it won’t be fair.