Applied Science #15: The Copyright Crossroads
Wherein I probably piss off all the lawyers I know...
“I’m wondering if everything before 2001 will be considered the Age of Content, and all the time thereafter the Age of Devouring.”
- Douglas Coupland, “All Governments Seem to Be Winging It Except for China” (from Shopping in Jail, p. 55)
Last year, I mused about the changes copyright might need to undergo in the age of AI.
I wrote:
“all media now exists in a public commons, even if it is protected by strict licenses. When the entire history of media is accessible on the other side of a search bar or voice command, it is also limitlessly composable—remixable, sampleable, coverable, usable. Any piece of content provides a springboard for creative collision and inspired generation alike. Stopping someone from sampling a song or finding a clever workaround to incorporate copyrighted audio into a TikTok presents an impossible task, a game of whack-a-mole on an endless field. Music IP law has been devouring itself for years in the face of this dizzying reality; increasingly specious lawsuits and opportunistic ‘new’ business frontiers highlight the inherent contradictions in ways one can view and confront copyright infringement (or perceived copyright infringement, a rabbit hole that calls for its own book-length exploration). This paradoxical paroxysm points to the inadequacies of current copyright regimes: At present, law primarily grants the power to punish creative infringement, enrich corporate interests, or prop up dubious claims—not to truly protect individual creators.”
As if some sort of horrid, badly edited incantation scribbled at a seance for ghoulish lawyers, my words seem to have summoned the sprawling 228 page copyright infringement lawsuit filed by Jamaican producer Cleveland “Clevie” Browne and estate of his late partner Wycliffe “Steely” Johnson against essentially any artist who has ever breathed on a reggaeton song. (While the suit was initially filed in 2021 and expanded in 2023, it came to light in the press in 2024 when a federal judge denied a motion to dismiss it.)
Clevie and Steely produced a song in 1989 called “Fish Market,” a landmark instrumental in the duo’s discography. “Fish Market” would be repurposed a year later by dancehall legend Shabba Ranks for his hit “Dem Bow,” the song lending its name to the rhythm associated with reggaeton and related offshoots for over 30 years. The legal filing describes the dembow rhythm as:
“a programmed kick, snare, and hi-hat playing a one bar pattern; percussion instruments, including a tambourine playing through the entire bar, a synthesized ‘tom’ playing on beats one and three, and timbales that play a roll at the end of every second bar and free improvisation over the pattern for the duration of the song; and a synthesized Bb (b-flat) bass note on beats one and three of each bar, which follows the aforementioned synthesized ‘tom’ pattern.”
The suit alleges that a staggering 1800+ songs have infringed on the rights embodied in one song (two if you count “Dem Bow”). It feels like a legal nuclear option that threatens the very nature of musical creativity in an age of infinite composability. While it purports to protect the intellectual property of two musicians, lawsuits of this nature cannot be the answer.
Remix. Reuse. Resell.
One morning early this fall, I woke up, worse for wear after 21 hours of travel, three flights, and two lost bags.
Jet lagged and bleary eyed, I thought to myself: How did we get here?
I had been thinking about the “Dem Bow” lawsuit on the second flight, heading home from a wedding in France. I read the entire filing. I couldn’t help but laugh. 1800 songs? Functionally every reggaeton song of note? How could this scale of lawsuit in a creative field be taken seriously? The suit is being heard in California, implicating artists from Spain, Dominican Republic, Brazil, Mexico, Canada, Puerto Rico, Colombia, the US, England, Panama, France, New Zealand, and Argentina “doing business in and with the state of California.” A friend referred to it as “sampling RICO,” invoking the catch-all racketeering charge often used to bring charges against vast criminal networks. It does read like a sprawling, multi-decade conspiracy. It is objectively absurd. Designed for a reaction, if not actual remuneration.
My mind skipped to Jay-Z and Linkin Park’s 2004 Collision Course EP. The first time I remember thinking, “oh, this remix exists solely for commercial purposes.”
It wasn’t the first set of remixes I was aware of. Nor was it likely the first collection of remixes I knew of engineered for commerce. It also wasn’t deeply out of step with my understanding of either artist. One of Jay-Z’s best songs, 2001’s Nas diss “Takeover,” built its foundation on a snarling, guitar-forward sample of The Doors’ “Five to One.” 2002’s Blueprint 2 sported the Cake-interpolating, Lenny Kravitz-featuring “Guns and Roses,” a song whose title nodded to a massive band, whose lyrics referenced hanging out with Bono, and which has largely been (intentionally?) forgotten by most Jay-Z mega fans. Post-Collision Course, Jay-Z continued his rock dalliances, collaborating with Coldplay and puzzlingly interpolating “Smells Like Teen Spirit” on 2013 single “Holy Grail.” Linkin Park had sold tens of millions of records fusing hip-hop beats, turntable scratches, raps, and emotional heavy metal. Their 2002 remix album Reanimation (stylized REAИIMATIOИ) reimagined 2001’s chart-topping Hybrid Theory with a host of credible underground rappers, producers, and DJs, artists whom I loved (Alchemist, Aceyalone, Pharoahe Monch, DJ Babu, Chali 2Na of Jurassic Five, Black Thought, Planet Asia, KutMasta Kurt). Reanimation conferred Linkin Park my respect through its feature list, testimonials by proxy.
When I heard Collision Course as a sixteen year old, I thought “Jay-Z came out of retirement to do a remix EP with Linkin Park just because he wanted to sell more records.” I couldn’t blame Linkin Park.
Collision Course was the pinnacle of a trend that began shortly after Jay-Z released 2003’s The Black Album. Advertised as his “final” project, The Black Album’s November release preceded a vocal-only version of the album in January 2004, intended, in Jay’s own words, so producers could “remix the hell out of it.” A deluge of sometimes excellent, sometimes witty, sometimes misguided remix albums followed. Kev Brown’s stellar The Brown Album. CunninLynguists producer/rapper Kno’s The White Albulum (which featured one of my favorite “Dirt Of Your Shoulder” remixes). 9th Wonder’s Black is Back (9th had, of course, produced the original Black Album’s “Threats,” remixing his own contribution twice on this project, cleverly recasting “Lucifer” against a flip of D’Angelo’s “Devil’s Pie”). The quizzical Purple Tape, which combined Prince’s Purple Rain with the Black Album. And the legendary Grey Album, Danger Mouse’s career altering fusion of the Beatles’ White Album and Jay’s Black one.
The Grey Album was no simple mash up. It saw Danger Mouse slicing tiny fragments and hypnotic sections from the sprawling Beatles album to slam together some of the most imaginative remixes ever. While it falters under the weight of its own ambition at times, The Grey Album remains a feat of mischievous invention, perhaps the only remix project I can think of that sparked the career of a multi-platinum, Grammy Award winning producer.
Collision Course arrived with the express purpose of making two massive things bigger by combining their audiences. A generous reading sees this project as the natural arc of Linkin Park’s genre mingling, testing the “theory” referenced in their debut album’s title. A craven reading sees this union as another of Jay-Z’s market-researched collaborations, from killer songs with UGK and Juvenile that opened up his reach in the American south, to unofficial remix of Joe Budden’s “Pump It Up” (2003) that kept him hot in his hometown in the run up to The Black Album, which would be far from his last album. Both assessments can be true.
Remixing as a tradition for commercial purposes has a hallowed history in dance music.
In his elegantly ambitious 2021 book Major Labels, Kelefa Sanneh traces the origins of the remix back to the dawn of disco. After discussing the party-hypnotizing techniques of seminal DJ’s David Mancuso and Larry Levan, Sanneh lands on Tom Moulton:
“...he had been compiling nonstop music mixes, on reel-to-reel tape, for the Sandpiper, a club on Fire Island, outside New York. Moulton was hired by record companies to make their tracks more disco-friendly, and he did his job with wit and precision, extending songs by splicing and looping the rhythm sections that dancers loved. Moulton helped codify a musical form that changed the face of pop: the remix. Record companies began to issue these singles on twelve-inch records, instead of the traditional seven-inch records, because they were so long and because the extra space between the grooves allowed the records to be louder, which DJs valued.” (Kelefa Sanneh - Major Labels, p. 370)
The literal concept of re-mixing, editing existing bits of audio to create something new or at least different from its source, reaches further back than the rise of the discotheque. Electronic music innovators like Pierre Schaeffer (inventor of musique concrete) and Karlheinz Stockhausen (a composer and so-called “father of electronic music”) experimented with the reconstitution of audio clips as early as the 1940s. One of Stockhausen’s most famous pieces, “Telemusik,” is a sprawling sample-driven composition that seems spiritually aligned with mid-1990s instrumental hip-hop than anything from its 1960s origins. Stockhausen composed the piece on a trip to Japan, on the invitation of a group of early electronic music pioneers:
“When he arrived in Japan, Stockhausen was severely jet lagged and disoriented, unable to sleep for several days. That’s when the strange hallucinatory visions set in. Laying awake in bed one night, his mind was flooded with ideas of ‘technical processes, formal relationships, etc.—all at once and in a network too tangled up to be unraveled into one process.’ These musings of the night took on a life of their own, and from them he created ‘Telemusik.’
Of Stockhausen’s many ambitions, one of them was to make a unified music for the whole planet. He was able to do that in this piece, though the results sounded nothing like the ‘world music’ or ‘world beat’ genre often found playing in coffee houses and gift shops today. In the twenty minutes of the piece, he mixed in found sounds, folk songs, and ritual music from all over the globe, including Hungary, Spain< China, Japan, the Amazon, Sahara, Bali, and Vietnam. He also used new electronic sounds and traditional Japanese instruments to create what he called ‘a higher unity…a universality of past, present, and future, of different places and spaces: TELE-MUSIK.’ This practice of taking and combining sound sources from all over is now widely practiced across all genres of music via the art form of sampling. But for Stockhausen it wasn’t simply making audio collage or taking one sample to build a song around it. Even though he used samples from existing recordings to make something different, he also developed a new audio process he termed ‘intermodulation.’
...
‘[I used the chant of monks in a Japanese temple with Shipibo music from the Amazon, and then further imposing a rhythm of Hungarian music on the melody of the monks. In this way, symbiotic things can be generated, which have never before been heard.’”
Justin Patrick Moore - The Radio Phonics Library, p. 141
Stockhausen seemed to operate with little regard for copyright. His transformations left many of the original “samples” unrecognizable in recordings of “Telemusik.” Stockhausen saw this technique as a way to put disparate musical traditions in conversation with one another. His work marks an implicit denial that anyone owns any sound. At the same time, it forms a paradoxical amber casing around oral traditions that never would have collided with one another other than along some ancient trade route, perhaps. Hip-hop and electronic music ran with these concepts in the form of sampling and more overt remixing, reimagining existing songs with new production. Albums like Brian Eno & David Byrne’s My Life in the Bush of Ghosts prefigure the modern sample collage 24 years before Danger Mouse starts slicing up slivers of sound from The White Album.
So what the fuck does Collision Course have to do with “Dem Bow?”
Jet lag? Sample culture? The line between sanctioned and unsanctioned use?
In September 2024, Pitchfork’s Isabelia Herrera wrote a lengthy, thoughtful analysis of Steely and Clevie’s filing, the musical history that preceded it, the lawsuits that paved its path, and the potential effects that could ripple outward from a decision one way or another.
Herreria’s reading of the situation is particularly interesting. She frames the case as a potential pathway to economic and narrative justice for two musical pioneers whose work underlies a global musical phenomenon. She writes:
“In 2023, the RIAA reported that Latin music revenue had surpassed $1 billion for the second year in a row—much of that growth fueled by reggaeton. Reggaeton artists are enjoying the fruits of a thriving industry, but many Jamaican creators, like Steely and Clevie, have not benefited from the genre’s profitability, in spite of their contributions…
While the future of the Steely and Clevie case is uncertain, it does reflect a monumental debate in the story of reggaeton’s rise: the reality that Jamaican artists have often failed to receive credit for their contributions to the genre. That is an injustice that the reggaeton industry must reckon with, no matter how the suit unfolds. Perhaps more importantly, beyond the scope of this individual case, the reggaeton and Latin music industry must contend with the colorism and anti-Blackness that it reproduces in its awards shows, media outlets, and festival bookings. Only that kind of upheaval will bring us closer to real justice.”
While I largely agree with this assessment and certainly with the spirit of compensating originators, I also see something more sinister and complex at play.
Earlier in the piece, Herreria notes:
“The Fish Market case is the latest chapter in a series of legal battles around the definition of music in copyright law over the last decade. In 2018, a judge ordered Pharrell Williams and Robin Thicke to pay Marvin Gaye’s estate over $5 million in damages (and 50 percent of future royalties) for copying Gaye’s 1977 track “Got to Give It Up” in their 2013 song “Blurred Lines.” Experts feared that the decision could set a precedent that made the “feel” or “groove” of a song subject to copyright—a major expansion of what is considered original and protectable, and a fact that could potentially stifle composers’ creativity.
The Fish Market suit could expand those definitions even further. In the U.S., most copyright cases focus on melodies, hooks, or lyrics to determine infringement, reflecting the ways that the law relies on what is musically notatable in a classical Western tradition...
However, the Steely and Clevie case is not based on melody, but on rhythm. The role of rhythm in music copyright has been tested far less in the courts, in part because it’s less commonly notated using sheet music...That means U.S. copyright law has struggled to grasp the creativity embedded in rhythmic musical traditions.
Many legal scholars see this as a Eurocentric bias rooted in the law—and one that has prevented Black artists from making successful infringement claims around rhythm. “The reality is that African-based musics have a very distinctive timbre, and they tend to be rhythmically complex in ways that I think aren’t often appreciated by courts,” says [ ] Arewa.”
I find it hard to argue with the facts as presented, but I also shudder at the notion that a specific rhythm could be copyrighted.
The “Fish Market” suit seems to blend two ideas, arguing both direct musical theft and energy copying. Some of its specific claims point to unauthorized use of samples, but it is unlikely that many of the accused used actual samples pulled from the original sound recording. The elimination of direct samples places many of the claimed infringements in the dreaded territory of “vibe” replication and the legally unprecedented realm of rhythmic copying. If that’s the case, then the history of hip-hop drum patterns could receive a fresh look from an intrepid producer and lawyer team, or, worse yet, a label with no connection left to the artist but ownership of their catalog.
What constitutes a copyrightable rhythm? How long before the parameters of a landmark case with the power to remunerate two Black creators gets wielded as a brutal cudgel against future generations of creators of color? And can we really be certain that Clevie and Steely invented this rhythm?
Western copyright law was largely developed to protect people of means with access to costly technologies enabling the controlled replication of works. It was not, in practice, meant to entrench protections for individual creators. It was not constructed for communities in which creation was viewed as something other than a monetizable asset, whether its value be communicative, historical, social, or other. It buckles under the weight of that which cannot be compressed in time. It was not designed for a world in which protected works and ideas traveled the globe instantaneously, the cost of reproduction negligible.
In this moment, consumption is content. Interactions with music often constitute a kind of immediate remixing that was unthinkable in the days of Tom Moulton or even Jay-Z and Linkin Park. When a creator speaks over an audio clip on YouTube or uses copyrighted music in an “original sound” on TikTok, they functionally engage in a kind of spontaneous recombination that never existed before the social media era. In such an environment, in any environment, original creators should be compensated. Perhaps as importantly, unintentional replicators of finite things should not be subject to outsized punishment.
We find ourselves nearing the 50 year anniversary of the 1976 Copyright Act, the genesis of much of the modern American understanding of artistic “protection” as a function of corporatized legal mechanisms. It is, in equal measure, the Pandora’s box that birthed every ambulance chasing lawyer, ever at the ready with a spurious lawsuit in pursuit of a jury that agrees to the link between disconnected compositions (or at least in pursuit of a lucrative out-of-court settlement). For each legitimate infringement claim, countless more see an artist or producer of little renown claim their work was ripped off by someone more successful, citing only the evidence that their song’s public availability means the offender must have had access to it (regardless of the logic of its popularity; I have lived this latter example). This argument often feels as flimsy to me as Google arguing that it does not have a monopoly on search in front of the FTC. It may not have a monopoly in the classic Upton Sinclair “break-up-the-railroads-and-oil-companies” sense, but it does have a functional monopoly given its strangling scale. The same operates in reverse for some of these copyright claims. Just because a song was available on YouTube doesn’t mean anyone has heard of it, particularly if it has evidently few plays and bears only a passing resemblance to the song a plaintiff puts forth as infringing.
I hesitate to even use the word legitimate in describing these types of lawsuits. Many of them hinge on comically subjective judgments. An infamous inverted duo from the past decade involving two Marvin Gaye songs illustrates this slippery slope.
In 2015, Gaye’s estate won a case against Robin Thicke and Pharrell Williams, claiming that the latter’s multi-platinum chart topper “Blurred Lines” infringed on Gaye’s “Got To Give It Up.” Though “Blurred Lines” did not share compositional or production elements with “Got To Give It Up,” the Gaye estate’s argument that the former stole a feeling from the latter convinced a jury to unanimously decide in their favor. At the time and in the years following the “Blurred Lines” case, the notion of “feel” providing legitimate grounds for infringement rightfully worried legal scholars and musicians alike, opening up the doors for all manner of lawsuits arguing that inspiration and “vibe” are as copyrightable as actual notes.
In 2018, the daughter of “Let’s Get It On” co-writer Ed Townsend sued Ed Sheeran, claiming Sheeran’s “Thinking Out Loud” infringed on Gaye’s classic song. Both songs share highly similar chord structures. Sheeran’s team effectively argued that these elements constituted “exceedingly common musical building blocks” and the production and performance embodied on “Thinking Out Loud” differentiated it substantively from “Let’s Get It On.” Sheeran won the case (a decision recently upheld in appeals). The “Thinking Out Loud” ruling complicates the notion of what is and isn’t copyrightable, arguing that if something is in the air, say, four common chords, one person can’t claim ownership. How, then, could any one individual be the owner of an energy? When decisions follow such hazy logic, it is impossible to feel safe with any composition that bears a resemblance to another, an inevitability against a canon of millions of copyrighted songs.
Surely the lawyers representing any and all of the defendants in the “Fish Market” suit have rushed to musicologists (likely one in particular, Dr. Lawrence Ferrara, the lead expert witness in such cases) to generate bountiful reporting on the musical precedents that could nullify this case in open court. No doubt these lawyers would also cite Jamaican dub and riddim culture as the bedrock for a vastly different understanding of copyright protection from those in the jurisdiction being used to wrangle supposed offenders. In brief, a riddim is the same backing track used by artists in multiple different recordings. Some versions reimagine the songs that preceded them, some take the tracks into entirely new lyrical territory. Somewhere between a cover, a remix, and an original. Artists operated without fear of repercussion in the creation of riddims across reggae history. Pitchfork’s Herrera groups this music in with other “rhythmic musical traditions,” a descriptor one could expand on with “non-Western” and “indigenous,” musical canons built outside of Westernized copyright law, damaged by its narrow definitions.
Where do we go from here?
In the United States, remixing and sampling have been lucrative business since as far back as the late 1980s and early 1990s because of these definitions.
Jay-Z and Linkin Park’s union constitutes one of the most famous remix projects ever, certainly one of the most fiscally successful. Though Collision Course would be the only official Jay-Z remix project featuring songs from The Black Album, others would bear his official and unofficial sanction. The Grey Album, most notably, gained vocal support from Jay-Z, Paul McCartney, and Ringo Starr alike, though EMI (the Beatles’ label) issued cease and desists to retailers selling the project. In a BBC Radio 1 documentary The Beatles And Black Music, McCartney said: “I didn't mind when something like that happened with The Grey Album. But the record company minded. They put up a fuss. But it was like, 'Take it easy guys, it's a tribute.’”
The very notion of Jay-Z releasing his vocals to be remixed is the sort of implicit approval that shows the artificiality of copyright, a megastar giving the green light to aspiring creators to imagine his songs in whatever light they chose. A purely cynical read would say that a highly successful rapper traded moderate copyright-related income for the immeasurable value of conversation around a self-perpetuating set of remixes, extending the life of an album infinitely. A more generous reading sees such an open remix initiative as a celebration of art for art's sake, an opening for producers and artists to exist in a kind of creative conversation with one of the greatest rappers ever. This is the spirit of sampling. The spirit of riddims. The spirit of collaboration and the flow of ideas conjured in a room when multiple people are bouncing thoughts, lyrics, and chords off one another.
Such notions of creation call to mind Seth Godin on the concept of embodied energy:
“It might only cost $2 in the vending machine, but that can of soda is a complicated battery.
It stores the energy of the machines that were used to mine the bauxite, the ship that brought the ore to Iceland, the astonishing temperatures used to create the aluminum, then more shipping, more processing, more handling, the lights in the store and the power to the vending machine.
But what about that book you just read? Not simply the energy to print it and ship it, or even the energy to grow the trees…
What about the energy of a life well lived by the author? The edits and rewrites and dead ends?
Everything feels different once we realize that something happened for it to become what it is now.”
The above applies to music, and perhaps even more so. There are only 88 keys on a piano. Only six strings on a guitar. Only so much surface area on a drum kit. Only so many different ways to play each instrument. No matter the new permutations of rhythm invented by visionaries like J Dilla, the laws of physics govern the limitations for all creation. They may be vast limitations, but they form hard walls nonetheless. The originality of a given song is often the product of Godin’s embodied energy transforming set elements into unlikely outcomes.
At some point in human history, every combination of notes will have been played, every chord strummed, every drum beat pounded out. If anyone is still alive, will everyone simply be suing one another in some irradiated courtroom threatened by the coming of a category six hurricane as soldiers for hire announce the latest curfew on whatever’s left of Los Angeles?
We need a philosophical reload that can hold two theoretically opposing thoughts at once. How do we ensure compensation for original creators while safeguarding future artists from draconian legal restriction? We have been conditioned by corporatized copyright to think of creativity as an enclosure rather than an infinite, undulating continuum. Copyright has little to do with creation or consumption. It hardly has anything to do with attribution in an age when so much music is consumed in the absence of metadata (and perhaps always was). It is about money. As the coming years in the United States will likely see disastrous deregulation, book bans, broad definitions of “pornography” that threaten the art of the already marginalized, we do not need stricter rules around copyrights that spark more lawsuits and stoke greater fear.
Chaotic times require more pliable systems. Better laws reflecting complex, interconnected realities while protecting original authors as well as derivative creators. We need technologies that make clearance easier and less likely to result in legal tripwires. We need to stop thinking about copyright purely as armor and start thinking about it as clay. Singers, rappers, producers, writers, filmmakers, painters, photographers, artists of all sorts must be compensated and credited for their work. But lawsuits with over 100 defendants are rarely the answer for the long term health of any industry, particularly when the defendants make up the primary participants in that industry.
In 2023, music copyrights grew to a staggering $45.5b in worth. Their rapid, continued growth means only one prediction feels certain: In 2025 we’ll see more lawsuits than ever. Current copyright laws are effective in securing profits for rights holders and giving basic safeguards to the authors of a work. Unfortunately, it is too easy to file a unfounded lawsuit at the moment. The answer, beyond reforming the law itself, may lie in raising the threshold for this sort of legal action or creating better systems of remediation that curtail the number of illegitimate disputes and provide a less litigious path to solving legitimate ones.
The time when all creation will be attributable at source is close. The means of remuneration exist. Apple has already presented a functional, active framework with its mix distribution, combining digital distribution, content ID (via Shazam), and a non-disclosed, mandated royalty pool that pays any identifiable contributor based on the proportional presence of their contribution. It is an imperfect system, but one far more optimal than the legal hall of mirrors that constitutes the current environment. One could extend this level of identification to the point of creation, developing tools that connect to existing audio software to fingerprint a musician’s creation at source, allowing for proper tracking and remuneration from ideation to embodiment on a commercial release.
The question: If willing creative surveillance is the solution to copyright law run amok, will creators want that? It may be a small price to pay to save music from eating itself.