2009.10.12 - The National Post - When Albums Get Off Track

When albums get off track

Guns N' Roses is learning again that, though it might be common, music sampling - or lifting - is difficult to prove and expensive to settle in court.

By Andy Pemberton

he band believed when the record came out and still believes there are no unauthorised samples on the track," said Irving Azoff, the manager of Guns N' Roses, this week after it was announced that two record labels were suing the band for stealing their artist's music. Guns N' Roses is being sued for $1 million (Dh3.67m) over claims that it sampled - or digitally lifted - two tracks by the German musician Ulrich Schnauss on the Chinese Democracy album. Schnauss's UK and US record labels (Independiente and Domino Records, respectively) claim the song Riad N' the Bedouins stole passages of music from his compositions Wherever You Are and A Strangely Isolated Place.

Guns N' Roses's defence? They had no idea. "The snippets of 'ambient noise' in question were provided by a member of the album's production team who has assured us that these few seconds of sound were obtained legitimately," Azoff said. "Artists these days can't read the minds of those they collaborate with and therefore are vulnerable to claims like this one. While the band resents the implication that they would ever use another artist's work improperly, they are confident this situation will be satisfactorily resolved."

Whatever the outcome of this case, the music-business lawyer Dean Marsh says that there is a simple reason why many sampling disputes are settled without a trial: it is too costly to defend them in court. "There have been very few trials over samples," says Marsh, who runs Creative Law & Business, which gives legal advice to the music industry. "It's usually settled. There are a lot of deals being done."

Last year, Coldplay had to settle with Joe Satriani after the guitarist claimed their song Viva La Vida violated the copyright on his song If I Could Fly. In 2007, Avril Lavigne settled after she was accused of sampling The Rubinoos's I Wanna Be Your Boyfriend on her hit Girlfriend. In 1997, The Verve had to hand over 100 per cent of the royalties from the global hit Bittersweet Symphony to The Rolling Stones after they failed to clear a sample taken from an orchestral version of The Last Time, produced by the Stones's ex-manager Andrew Loog Oldham. This, says Marsh, was a typical record company foul up.

"There are many records with uncleared samples out there. The problem arises when a song becomes very famous," he says, invoking the old music business adage, where there's a hit, there's a writ. "In the case of The Verve, it was too late. They were exposed. The Rolling Stones had them over a barrel." The reason so many songs are not cleared in the first place is that the process is a pain in the neck, Marsh says. "Clearing a sample is tedious, expensive and there is no guarantee you will get clearance."

Legal sampling is so difficult that many artists decline to use samples at all. Beck, who built his career blending folk music with the sample and breaks culture of hip hop, said recently: "Now it's prohibitively difficult and expensive to justify your one weird little horn blare that happens for half of a second one time in a song and makes you give away 70 per cent of the song and $50,000 (Dh184,000)."

In other cases, technology is so advanced that the law can barely keep pace. "I was talking to a producer who said he had stolen the 'swing' [or feel] of our drums for his own track," says Felix Buxton, one half of Basement Jaxx. "Not the drums or the music, but the gaps between the beats. With a computer you can just copy and paste them onto your track." "On the one hand, technology is changing so rapidly, and on the other, if you are caught sampling the penalties are punishing," Marsh says. "It's a shame. In other art forms sampling is acceptable or even encouraged. Andy Warhol sampled the Campbell's Soup tin and made something new. Why shouldn't people be able to do that with music?"

Unfortunately, Guns N' Roses aren't above wielding copyright law themselves when it suits them. The band's 2008 comeback album - which reached a disappointing number three in the charts when it came out last November - was heavily protected against potential bootleggers. So when the 28-year-old fan Kevin Cogill uploaded nine tracks onto his website before the CD was released, he was arrested and faced a year in prison. (In the end he was given a suspended sentence.)

"There are double standards," admits Dean Marsh. Many online music fans have pointed out one final paradox: the album on which the alleged musical theft occurred took Guns N' Roses 17 years to finish.

https://www.thenationalnews.com/arts-culture/music/when-albums-get-off-track-1.523983