Watching House, M.D. and listening to its catchy but minimal theme song, “Teardrop,” by Massive Attack, it’s hard not to think, I could do that.
I can’t stop playing with it — it’s like a compulsion. For the first two months that I have my new Apple MacBook, I can hardly concentrate at work; all I want to do is get home and mess with GarageBand, Apple’s revolutionary multi-track music recording program for home use. It may be the best free program since Netscape. All right, it’s not technically free — you’d have to pay something like seventy bucks for the iLife package that includes it if you wanted to buy it separately. But it’s bundled with all new Macs, and you were gonna buy one of those anyway, right?
GarageBand is essentially a music-mixing program. It has linear tracks that visually display either the MIDI sequence played by a software instrument or the waveform of the sounds played by an actual instrument:
You can cut pieces of sound like tape and splice them together seamlessly, and the practical infinitude of tracks allows you to layer instruments and sounds with incredible depth. This is joyous news for future Hank Shocklees and Eric Sadlers, but also for classical music composers who can’t get their hands on a real orchestra and actual garage rockers who have a home-made classic like Sublime’s 40 Oz. to Freedom somewhere deep inside them.
But it’s also good news for people like me, non-musicians who have no particular skills beyond a couple of years of high school chorus and a good sense of what they like. GarageBand includes several hundred pre-recorded sample loops of virtually every kind of music, most of them one or two measures long, all of them played by real musicians and available with a free and fair license to GarageBand users. For someone who always thought making music was out of reach, this is dazzling, eye-opening. To be able to make music that sounds like something, instantly, right away, as soon as you load the program — this is as revolutionary, in its way, as the Canon XL1 series was. It offers people with little technical training an easy, relatively inexpensive way to enter into the art form and right away start producing interesting work.
When I first opened GarageBand, I wasn’t entirely sure what to expect. And, indeed, the first twenty minutes or so are a little confusing; by default, the program brings you up in a “Grand Piano” software instrument track, and it gives you a tiny little animated keyboard to play on. This is, of course, next to useless; you can’t play the piano with a mouse. But then I found the loops, and I was off and running.
As a fan of hip-hop and house music, I had it in mind that, although I had nothing but samples to work with, I might be able to build something personal out of them by creative cutting, sort of like making a movie with nothing but found footage. Given that that kind of music was my model, I knew I would need to start with a strong rhythm track and build out from it as a foundation.
I quickly found some drums I liked and a couple of thundering bass tracks; then I began to look for loops that could be used to make something like a melody line. Combing through the “World” music loops I came across the “Middle Eastern Oud” and “Nordic Fiddle” pieces — on a whim, I put them together, and something really exciting happened — I heard something wild, something that sounded like real music, and something that probably no one else had done.
I played with various permutations of these four instruments — drums, bass, Nordic fiddle, and oud — for three or four days, making some progress and refining the initial combination, when I realized that if I never used anything but Apple’s provided loops, what I made would always have a certain sound, would always be limited by what the incredibly well-intentioned guys at Apple put in the box. I knew this with a fatal certainty, even though I had only listened to a few dozen loops at that point. The analogy to cutting “found footage” was flawed — the implicit assumption in that kind of editing is that you are using the footage for a purpose other than the one intended by its creator. This is where that kind of work gets much of its energy — the feeling of subversion, or re-invention, of someone else’s text. That’s the genius of Public Enemy recutting James Brown horns and mixing them with dialogue from A Soldier’s Story and Deep Cover — and, later, even sampling their own previous work. But much of that energy and creative excitement is lost if someone has already created the “samples” for you. Imagine Monet, rather than mixing his own paints, just settling for a pre-fabricated color marked “lilypad,” or “sunset.” Immediately I wanted to do something different, to add something that no one else using this program would have.
Fortunately, GarageBand can import any MP3 from your iTunes folder. I scrolled through my albums, looking for something with strong, clear instrumental solos. As soon as I saw Dizzy Gillespie, I knew I had it. I scrolled backwards and forwards through “A Night in Tunisia,” trying to isolate solos and horn group-work and then, within them, phrases and chords and trumpet blasts. I am not a musician, but I approached the music like a critic, finding what I liked and inventing my own shorthand for dealing with it. I eventually settled on two main samples: a swinging three-note horn-section hook that provides the rhythmic foundation for the later half of my song, and a single blazing note from Gillespie’s inimitable trumpet. Not much, but, along with a twittering sound and a final blast from the whole band, they add something not available using just Apple’s pre-recorded loops.
The final track is available here. I’m proud of it, as I find it listenable and groovy. There are some things wrong with it, too: it’s massively overproduced, especially for its slight size (a mere 2 minutes) — there’s an acoustic guitar part you can’t even hear because of all the stuff going on. But I think it achieves what I want it to achieve — it takes chunks of Apple’s Loops and bits and slivers of a great performance and makes them into something new.
How do I know it’s new? Well, the thought experiment I try to perform is this: if Dizzy Gillespie or his sidemen heard it, would they think, “Hey, that’s my song”? If not — if the pieces are used in a way so as to constitute a substantively new tune — then I submit that the sampling process has yielded a new work. To put it another way, if the sample is a set of notes recorded in a given time and place, then the question is — would the original artist have used these notes in more-or-less this way, or would he have used them in some other, different way?
This is a largely subjective line. Even so, you can sketch out some areas that seem pretty obvious. To my mind, Sean Combs’ use of “Every Breath You Take” and Pras’ use of “Islands in the Stream” basically fail this test — they are essentially using the song note-for-note with different lyrics and a drum machine. In my song, on the other hand, the samples are taken so completely out of context that they would hardly be recognizable even to someone familiar with the original. Other cases fall somewhere in the middle: Digital Underground’s rap classic “The Way We Swing” magnificently appropriates a bass hook from Jimi Hendrix and the Band of Gypsys’ “Who Knows,” adding vinyl scratches that take the place, however presumptuously, of Hendrix’s guitar melody, and a vocal rhythm and catchy lyrics that are all new.
Ultimately, these kinds of interactions are the inevitable relationship of new art to old. One need only think of the seemingly infinite performances of Bach and Shakespeare to see that we will always draw on established classics as both inspiration and template. Sometimes Bach is played straight, as in Pablo Casals’ beautiful renditions of the cello concertos — but sometimes not, too, as in Ornette Coleman’s playful reworking of one of the same pieces. Likewise, sometimes Shakespeare is played straight — but he’s often more rewarding when he’s not, as in Baz Luhrman’s music-video vision of Romeo and Juliet, Rick Moranis and Dave Thomas’ very funny Strange Brew, and the original Blackadder series’ complete subversion of dialogue from the “Henry” plays. Or there’s that old Moonlighting episode….
And yet, after several more weeks, playing with more Apple Loops and more of what I consider legitimate samples of others’ works, the legal implications began to gnaw at me. What if I wanted to publish these songs on the internet? I have no idea whether anyone would want to listen to them or not, but sites like icompositions.com make it ridiculously easy to post music for all the world to hear. But if I wanted to do so, would I need to get the samples cleared? What if David Geffen heard my songs and wanted to give me my own record contract? (The unlikelihood of the premise in no way nullifies the legal and moral questions.) Okay, so David Geffen could get the clearances pretty easily. But what if I wanted to make my own CD? Would it be even remotely possible for me, as an amateur producer, to get those clearances? Where would I start? Who do I go to to get permission to use, especially, the music of a dead man? I’m sure somebody owns Dizzy Gillespie’s music, but who? Is it the “Gillespie estate”? Compact Jazz? Ken Burns?
This started to irritate me. To return to our our canonical forebears above — can anyone seriously argue that the world would be a better place if none of those pastiches and derivatives had been allowed to exist? How would things be if the 16th-century equivalent of Time-Warner had sewn up the copyrights to Shakespeare’s plays in perpetuity? The problem is not, of course, that re-interpretation is impossible, especially to established artists working within “the system” — the interlocked media production, publishing, and rights industries. If David Geffen does sign you on, what you get is not so much distribution (already available to everyone via the internet and CD burning), but a room full of lawyers to ensure that it’s okay for you to sample other peoples’ work and that no one samples yours. The problem is that the very idea that art is property restricts the healthy ebb and flow of ideas in culture. Independent producers without recourse to lawyers must either feel constrained from referencing previous works or work, essentially, outside the law. Moreover, even established artists are often constrained by the illogical mess of intellectual property laws:
“There are certain television shows that studios can’t release [on DVD] because of what’s contained on them,” says Paul Brownstein, an award-winning DVD producer…. “‘WKRP’ will always be in limbo. It has the same problem as ‘American Bandstand.’ You (have to) pay a fee for the musical composition. For example, if Sonny and Cher sing ‘I Got You Babe,’ we have to license it from Warner Bros. or Warner Chappell, even though Sonny is the sole writer because there is a publishing company involved. If they’re performing it on ‘American Bandstand,’ you’d have to license ‘I Got You Babe’ and then go to the record company and license the master recording, so there are double the music costs, which are high to begin with.” (Hollywood Reporter, Nov. 15, 2005)
The same article also notes that sometimes clearing the music becomes so expensive that it essentially limits the show’s DVD market to diehard fans by raising the price to exorbitant levels:
When studios opt to retain original music and pay the appropriate license fees, those costs often are passed along to the consumer. The star-studded Season 1 edition of the NBC series “American Dreams,” billed as an “Extended Music Edition” (it contained some music substitutions), retails for $89.98. “Freaks and Geeks: The Complete Series” and “Moonlighting: Seasons 1 and 2” both kept their original music at a final retail cost of $69.98 and $49.98, respectively.
Moreover, when we look at the history of sampled music, the logical problem of the boundaries of intellectual property becomes all but insoluble. Early dub and hip-hop DJs often as not sampled live, using their hands and real vinyl; dub DJs were even called “selectors,” suggesting they walked a line between someone who picks music and plays it in a club and someone who actually makes music. It’s obviously neither illegal nor immoral to play records in a club; it also therefore can’t really be wrong to take two turntables and play two records at the same time, or to hold them and release them in time. But doing these things inevitably creates a relationship between pieces of music — and hence a musical idea — that didn’t exist before, just as montage does in film. And once that musical idea has been created, it is ridiculous to say that it can be performed live for paying spectators, but not recorded, without payment of a license fee.
The legal history of sampling is not encouraging. Although many producers and rappers initially believed there was a “fair use” exception for sampling that didn’t substantially reproduce the original song (not unlike the “fair use” law that allows me to include small excerpts of the above Hollywood Reporter article here without fear of prosecution), Robert Christgau reported in the Village Voice in 1992 that Gilbert O’Sullivan’s legendary and very petty suit against Biz Markie was expected to change the legal landscape for rappers, and, indeed, it has. Following that precedent, other courts have made even more sweeping and draconian rulings against the artistic rights of samplers in favor of the commercial rights of the original musicians. When the court in Bridgeport Music, Inc. et. al. vs. Dimension Films et. al. says that
This analysis admittedly raises the question of why one should, without infringing, be able to take three notes from a musical composition, for example, but not three notes by way of sampling from a sound recording…. [We answer that] even when a small part of a sound recording is sampled, the part taken is something of value. No further proof of that is necessary than the fact that the producer of the record or the artist on the record intentionally sampled because it would… save costs…. It is a physical taking rather than an intellectual one.
they are essentially equating sampling with stealing a Cadillac. This equation seems dubious at best; when I steal your car, you don’t have a car anymore, but when I sample from your record, you have lost nothing. You might not have gained anything (i.e., the license fee), but no one has made you any poorer.
The court also notes that a sample can “add something to the new recording” that reproducing the same notes in the studio wouldn’t. It rather coyly declines to say what that “something” is, but in many cases the answer is clear: it adds a direct callback to a previous cultural artifact, reinterpreting it by means of direct reference rather than through an approximate reproduction. This principle is well-recognized the realm of the written word: this article would obviously have less impact if I could only summarize the Reporter and the Voice‘s words instead of quoting them directly. This “something” the court fails to define — the ability to stand up and declare one’s influences and simultaneously change our perception of them — is precisely the thing that should be available as common cultural material, not treated as a commercial product with a “physical” reality subject to “theft.”
Copyright law exists for only two morally justified reasons: to ensure that artists have an opportunity to earn a living from legitimate sales of their work, and to ensure that artists and their works are not misrepresented by others. But it must be argued that all rights exist in tension with other rights — your right to free speech not to infringe on my right not to be slandered, and so on. And at some point, society must stand up in defense of its right to appropriate, rework, and even abuse the ideas of the past.
Some artists have started to do this, of course, recognizing the need for more flexible in our idea of “ownership” in art — hence the increasingly widespread use of the Creative Commons license on the internet. (This website, for example, is governed by just such a license, which you can see by following the link at the bottom of this page or by going here.) And the legitimization of sampling, re-worked sound, and mash-ups took a huge step forward three years ago when Jay-Z released his supposed final album, The Black Album, in an a capella version to encourage remixing by adventurous DJs. A number of interesting responses from artists great and small came out of that generous act, most famous among them The Grey Album, Danger Mouse’s mash-up with the Beatles’ White Album. Mouse faced a fairly serious legal threat from EMI, which owns the Beatles’ back catalog (notice this attack didn’t come from, say, Paul McCartney, who has used sampling in his own work). He immediately stopped distributing the album, but of course nowadays once anything exists in digital form it can’t really be controlled, and indeed it’s still available, along with a brief summary of the legal battles surrounding the album, at illegal-art.org, a site devoted to challenging outdated and restrictive copyright law.
For a while I continued to make my own, modest music using samples of other people’s work, including one that uses nearly four minutes of dialogue from Orson Welles’ The Trial and several guitar licks from Dick Dale’s Tribal Thunder album, and another that slams together snippets of two Chieftans songs (“If I Had Maggie in the Woods” and “The Dogs in the Bushes”) and a slice of Aldo Ciccolini playing Satie. But the implications began to wear on me. It wasn’t so much the threat of an actual lawsuit that bothered me — I’m probably far too amateur to ever register on record companies’ radar. It was being on the wrong side of the law — or, rather, law and business practice being manifestly on the wrong side of morality and common sense.
I should say that I in no way support the indiscriminate stealing of music that has become so prevalent in the digital culture. I still buy all my music on CD (The Grey Album, obviously, excepted), and I don’t let other people copy my music. I also, although I am a poor and needy filmmaker and artist, have never copied Photoshop or any other program — the programs I have, I’ve paid for, and the ones I don’t have (like Apple’s industry-standard but still frighteningly expensive Final Cut Pro) I’ve learned to live without.
But somehow intercutting a few notes from Dizzy Gillespie or Dick Dale into my own work, or even lifting and vigorously recutting sizable portions of film dialogue or Chieftains songs into a new context, just doesn’t strike me as wrong. After all, Welles (who’s dead) took most of his dialogue from Kafka (also dead); the Chieftains, though not dead, have made an entire musical career out of replaying works written by anonymous men and women now hundreds of years dead. Gillespie? Dead. Satie? Dead. Aldo Ciccolini is not dead, but he has certainly had quite a bit of time to make money from playing other people’s work, which I’m willing to bet, in most cases, he never had to license.
Still, as making music has become a more serious pastime for me, I’ve shied away from using protected work. At the same time, I’ve tried to learn, somewhat stumblingly, to play an instrument — I bought an M-Audio MIDI controller, essentially a keyboard that plays whatever instrument your computer tells it to play. With that, I’ve begun to make other songs that are mostly or entirely my own — there’s this slow “guitar” piece, and another on the “piano” that’s almost all me, except for a drum machine beat from Apple Loops. I feel good about what I’m doing now, quite proud of it — but I still feel like there’s an avenue that’s closed to me, and that bothers me.
What does all this have to do with filmmaking? Well, there are the obvious parallels, of course. In 1987 Todd Haynes released a short film called Superstar: The Karen Carpenter Story, which somewhat luridly told the tale of the ill-fated anorexic singer using Barbie dolls. While ingenious in its entangling of mental disturbance, the culture of celebrity, and the role models we provide for girls through bizarrely disfigured toys, the film was hardly a money-making venture — it was a 43-minute art-house curiosity, part experiment, part calling-card for Haynes in the indie film world. Still, Richard Carpenter, Karen’s brother and musical partner, got the film withdrawn from circulation for its unauthorized use of a number of Carpenters songs.
To be honest, Haynes might have seen this coming. You can’t release an entire film fill of Carpenters music without expecting to pay something for the songs. Using a song whole, without modification, probably can’t be considered either “fair use” in the traditional sense or the kind of sampling described above. On the other hand, if the film had been complimentary toward Richard Carpenter, rather than portraying him as a controlling bastard in some measure responsible for Karen’s troubles, would he have been so quick to seek an injunction?
More disturbing, however, is the commonly expressed belief among filmmakers and critics that had Carpenter not stepped in, Mattel would have sued over the use of the Barbie image. Of course, that Mattel doesn’t want its product associated with anorexia and death, but I’d imagine McDonald’s doesn’t want anyone saying that its burgers make you sick, either. These kinds of use of copyright law — to protect a personal or corporate image — are clearly a violation of the moral principles on which copyright is based. Fortunately, in 2004 a U.S. district court slapped Mattel down hard in just this kind of lawsuit, awarding legal fees and court costs to the defendant.
Ultimately, the line is fuzzy in a moral sense and a creative one, even as courts try to create a “bright line” in the law between fair use and piracy. The most well-reviewed documentary of 2005, after all, was constructed mostly from the personal video diaries of a man who was eaten by a bear. That Werner Herzog secured the legal rights to use Timothy Treadwell’s footage in Grizzly Man is never even remotely in doubt; the woman who owns the rights gives multiple on-screen interviews, and she seems quite won over by Herzog’s respectful manner and restraint. (At one point, he listens to the audio of Treadwell and his girlfriend’s moment of death — he immediately informs the woman that she “must never listen to this,” and advises her to destroy the tape entirely.)
But Herzog’s film is, for all his aching Euro-sensitivity, in remarkably bad taste. It essentially takes Treadwell’s film legacy and uses it to paint a devastating picture of him as a pathetic, deluded outcast. Gripping stuff, and clearly Treadwell’s friends and relatives have signed off on it, but I find it telling that although the film made only about $3 million in theaters, it has become a rental fave among my soldier buddies who would otherwise never seek out a Herzog film in a million years. This has the taint of Faces of Death about it; there’s a certain grim luridity to it — even Herzog’s telling the woman who owns the final tape that it is too horrible to listen to and she must destroy it seems a little too much like canny and effective storytelling. He may have been right to tell her, but by including the conversation in the film, he’s also asking us to imagine the most horrible death sounds we can — and coyly denying us the reality, a time-honored horror genre trick going back to Lovecraft.
Moreover, Herzog’s worldview (the universe and nature are horrifyingly uninterested in human life and feelings) is so diametrically opposed to Treadwell’s that we cannot imagine for a second that they would have collaborated in real life. Presumably Treadwell didn’t shoot all this footage for nothing; somewhere in the back of his mind there must have been an intended film or TV series, and we can’t believe that it would have looked even remotely like this. That doesn’t make Herzog’s film bad — indeed, he brings a discipline and ruthless clarity to his editing that one can’t imagine Treadwell ever summoning. But it does mean that this film is undeniably, unalterably a Herzog film, and not a Treadwell one. The question I asked at the beginning about my own work — would the original artist recognize his own work in mine — seems all too easy to answer in this case.
Yet it is precisely this fact that argues for the value of Herzog’s approach, and for the constant re-interpretation of the works of other artists. The fact the Herzog can make a sensational and distasteful, yet perhaps better and more honest film, from someone else’s work, argues strongly that authorship is in some ways transitory and transferable, and that artists should get used to that fact. Timothy Treadwell, the Carpenters, the doll designers at Mattell — they’ve made their choices, and to some extent they’ve made (or attempted to make) those choices a part of the fabric of American public life. (Even Treadwell had appeared on Letterman.) Richard Carpenter may feel that his life shouldn’t be held up to public scrutiny, and maybe it shouldn’t, but the Carpenters’ songs are owed no such respect — their treacly and false romanticism should be punctured again and again. (Though it’s pretty cool to see a female lead vocalist playing drums way back in the ’70s.)
Distribution software on the internet has made it impossible to stop these kinds of uses of copyrighted material, but the recording industry (and, as will become apparent in the next few years, the film industry) is still perfectly capable of hassling independent producers to the point that using samples or excerpted footage is a godawful nuisance. More high-powered stars like Jay-Z making their work available for experimentation will help; a reform of the copyright laws to make them more artist-centered and less corporation-centered will help even more. Otherwise, we may very well be looking at a situation in which Shakespeare is free for re-evaluation, but Herzog must remain fixed in stone forever; in which Beethoven’s music is common property but the Beatles are owned for all time.
(Update: In addition to Jay-Z’s a capella album, I recently saw that Trent Reznor released a couple of songs from his most recent album in raw files (one of them for GarageBand) on the NIN website. Very cool. — 5 Oct 2006)