Screen Shot 2014-02-19 at 6.01.16 PMDe La Soul faced a problem. None of the band’s revolutionary records were available in digital form. Sure you could still buy the CDs, if you cared to, but you couldn’t buy them on iTunes store or stream them anywhere. In this day and age if you’re not on Spotify or Beats, you might as well be invisible. The group has a new record this year, so having their music available everywhere is important for exposure.

So they decided to give it all away. Yep, last Friday the band gave out the music from its own website. That’s great for fans. But it might be a pathetic comment on our current state of copyright.

What made De La Soul so great was that the group used tons of samples in its music. Great for art, but each of those samples have to be licensed. It’s a pretty time-consuming process and Warner Music Group, which owns the rights to the old Tommy Boy Records, wasn’t particularly motivated to clear all the samples, so the band took matters into their own hands.

Tommy Boy founder Tommy Silverman suggested on Twitter that we should create a statutory rate for samples in the copyright law reform that is being considered by the Patent and Copyright Office. That way any artist could sample any work and the original artist would get a compensated for the work. Pretty great, right?

“It’s never gonna happen,” an executive with extensive knowledge of the copyright told me when I asked about the issue. “Is it a lot of work and kind of a pain to get a sample licensed? Absolutely. But it can get done? Yes.” As long as there’s a precedent of samples getting cleared, the copyright office isn’t going to be motivated to create blanket business terms for samples. Also, there are a growing number of voices who are against compulsory licenses for samples, such as Aerosmith lead singer Steven Tyler, who wants to retain control to who gets to remix their music.

The bigger problem for De La Soul and many acts from the ’80s and ’90s was that the bands just went ahead and sampled whatever they wanted and released the record. Once a record is in the marketplace, the sampler artist has no power of negotiation and has to take whatever deal is offered. The most famous example was The Verve’s Bittersweet Symphony which sampled an orchestral version of the Rolling Stone’s song “Last Time.” While the Verve did have a license with the creator of the orchestral version, they didn’t have a deal with the holder of the original recording, which was a big hit at the time. “We were told it was going to be a 50/50 split, and then they saw how well the record was doing,” Verve Bassist Simon Jones told the Toronto Star. “They rung up and said we want 100 percent or take it out of the shops, you don’t have much choice.”

De La Soul’s current troubles stem from whatever settlements the band made with the rights holders for the samples during the CD era didn’t include digital products (since they didn’t exist back then.) So now someone will have to go back and clear all the samples again. Since hip hop has been around 30 years or so, a cottage industry of clearing samples has risen up. But obviously that will cost money, and potentially a lot of it. I’m sure Warner did the math and the costs of clearing all the samples outweighed the potential of digital sales.  ‘Yeah, no thanks. Why don’t you guys do it?’ De La Soul probably did the same math and said, “aww, let’s just give it away.” Eliot Van Buskirk mentioned in his evolver.fm story that everyone and their mother wrote an article about them giving it away, so it was great publicity for the group.

So the band loses sales, and just as importantly, the customer loses. We clearly need copyright reform, as the laws were written for a different era. What that means has yet to be defined. And it’s eating away at the value proposition to the digital customer. Tracks disappear from all the streaming services for rights problems every day. Some days tens of thousands of tracks disappear from the service for all kinds of reasons. Sometimes it’s legitimate. Other times it’s for arcane reasons. Sample-heavy hip hop bears the brunt of these problems. Many times several tracks on an album will not be available for playback. And anything that loses its rights and is in a customer’s playlists? Well those go away, too.

As you can understand, this problem bedevils customers. Support forums are filled with these types of understandable complaints, from customers who don’t blame outdated copyright laws, nor the labels that decide it’s not worth the effort to clear the rights. They blame the services. Rightfully so. Fixing rights issue remains one of the diciest, costliest and least understood problems streaming services face.

Compulsory Background Reading

Evolver.fm: De La Soul Makes Music Free in Copyright End Run

Rethink Music: A Compulsory Sampling License

Billboard: Steven Tyler Against Compulsory Remix Licenses

US Copyright Office: Copyright Policy, Creativity, and Innovation in the Digital Age

Independent Lens: Copyright Criminals (documentary)

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copyright, licensing, marketing, Music, subscription services