[FMC] George Clinton and Hank Shocklee

Special Interview with legendary funk artist George Clinton and Hank Shocklee Music Industry Producer, Founder of Public Enemy, President of Shocklee Entertainment. Hosted by Rick Karr
Clinton: “I thought it was a DJ on the radio talking over the record.”
“I heard a guy rapping over “flashlight” and thought it was cool and record it. Then I learned that the kids in the Bronx were already doing it.”
“The first artist found who sampled p/funk was De La Soul.”
“It’s just a new way of making music. The guitar, they didn’t want it around, the saxophone wasn’t in the orchestra. I always gravitate towards what people– what parents hate– cause that’s the next big thing.”
“When hip-hop came out I was glad to hear our songs [sampled], because we were getting on the radio.”
“I’d figure out a way to make money of it. We went back on the road and started making money playing the long version of the songs.”
Is sampling lazy?
“My mother called us lazy, too. She said that we just vamped– got on a groove for 20 minutes and jammed and that was lazy. There are some people out there who aren’t lazy. Hank Shocklee is not lazy… it’s probably twice as hard to make that blend… That’s not lazy there.”
Some say that the sampling law has changed– even killed– hop-hop, that you need to have the budget of a [Dr.] Dre to do a sample-heavy record?
“If you clear beforehand, it’s not bad. But when you take the whole song, or don’t have permission, then it’s going to cost.”
[Enter Hank Shocklee]
HS: When the courts say that we have to get a license, who is that protecting? The artists?
GC: We haven’t gotten hardly any of the money from the sampling.
HS: I know for a fact that we paid a LOT of money to Bridgeport. You look at the fact that these guys have been suing for a long period of time and a lot of money isbeing made and we should get a license for sampling, who is this actually benefitting? The original artist who made the song or the person who just happens to be the [rightsholder]?
HS: If I’m sampling 30 seconds of the song and using that for my whole song or if
Who determines who gets a license? Who determines the rates?
RK: What happens to the kid in his basement in
HS: If you took 8 bars of a song, then you’d have to get a license. Now, there’s basically no parameters. If the sample only constitutes 1/8 of the song, how does that justify giving up 50% of the publishing?
[Remember, there are two different rights involved in clearing a sample– the copyright in the composition and the copyright in the phonorecord. Based on the 9th Circuit’s ruling in For the composition, there is a de minimis level of taking that is not copyright infringement, but based on the 6th Circuit decision in Bridgeport Music, there is no de minimis analysis for sampling of the phonorecord.
HS: 3 different publishers each wanted 50% of the publishing, but how do you give up 150% of royalties?
GC: Well, you have to do it beforehand.
HS: Should you be allowed to go backwards and basically sue people retroactively for something that was done in the past and was legal then?
HS: Sometimes, we sample because we want the performance, sometimes we want the sound, like the particular sound of a Moog synth. The best way to get that is from a recording that was already done.
HS: Sampling is not about stealing other people’s material, it’s about capturing some of that vibe.
GC: That’s why we put out a [sample CD] where you can get the handclap, the guitar from Flashlight… I think that’s the future of publishing, with a compulsory license for samples. We’ve had people that sampled our record from a [3rd generation sample].
HS: There’s a difference between sampling the performance and sampling the sound. That would be like having to clear Fender every time you use a Rhodes, or Tama will charge you a royalty for the snare sound. [HS is making the case for a de minimis use analysis for sampling of sound recordings.]
HS: [plays 4 notes from Flashlight] How much should I pay for that? Talk to some producers, then want 10k, plus a rollover rate at 10k units, or 50% of publishing.
GC: What if you ask them in advance?
HS: This is what they seek when you ask in advance.
GC: When you cover a song, that’s pennies a song.
RK: that’s a compulsory rate.
GC: It’s blackmail the way it is now. [for sound recordings]
HS: Is that the performance or is that the sound?
GC: That’s recognizable. If you play the next part [one hit from Flashlight], that would be different.
HS: So what do I pay for this?
GC: The 6th Circuit says you’ve got to pay for it.
HS: Let’s try to loop it [a one-note hit] and create something different. I could make it sound different, smooth out the glitches, change its pitch, change its tone. Now, when you’re looking at sampling at that level, am I stealing a performance or creating?
RK: This [next panel] is such a let down…
[This interview was much more awesome than my notes reflect.]
Related Links
Bridgeport Music, Inc. v. Dimension Films (6th Cir., Jun. 2005).
Newton v. Diamond (9th Cir., Nov. 2004).
Astride Howell, Sample This: “The controversy surrounding digital sampling and the legal rules
of thumb generated in response reveal that there is quite a bit of mis-
understanding among musicians about copyright law and samplingthe songwriter or, by assignment, a music publisher.”
Previously: Bridgeport, Audio Sampling and Transaction Costs