Den Sorte Skole. Musical Expression as a Black Market Practice and the Search for a Gray Area

Holger Lund

I am not a copyright specialist at all—nevertheless, in my research on musical topics and work as a label owner, I come across copyright issues from time to time.

Compared to my abstract, where I mention only one case, in preparing this lecture two other cases caught my attention. I’ll now examine three cases, from which I’ll draw conclusions.

In order of their appearance in my lecture, these cases are:

1. Den Sorte Skole’s Lektion III (2013)—a three 12-inch record set and the primary case
2. Nate Harrison’s Can I Get An Amen? (2004)—an audio installation with a vinyl record and record player

and

3. The Society for the Emancipation of Sampling’s more circulations (2012)—a seven-inch record

These cases will be presented and used as case studies, including reflections on copyright issues. They are not related to mainstream music. Coming from the margins, these case studies show approaches to questioning copyright situations that are more artistic than legal.

1. Den Sorte Skole’s Lektion III (2013), a record set

Den Sorte Skole are two Danish producers and DJs, Martin Højland and Simon Dokkedal. What is Lektion III about? After two mixtapes, their third album is a primarily full-scale sample-based album. They built an enormous archive, categorizing more than 10,000 sampled pieces of sound lifted from over 250 different original songs from 51 countries on six continents.[1] The tracks on Lektion III were built from this sample archive; the artists added some additional instruments of their own, played by themselves, onto a few tracks of them. In the extensive booklet accompanying the record set, Ralf Christensen called the result “beautiful Frankenstein songs,” “sonic archaeology,” and the Danish duo “a transglobal, time warped band”[2]. And yes indeed, we are dealing with a virtual band through time and space, with a sort of music museum containing a collaged archive of interwoven songs.

None of the samples used for the album were cleared. What’s more, the semiofficial private release as a vinyl record set and as a free download comes with a booklet, which explains in great detail which samples were used from which records.

Christensen notes that Lektion III “could not be made today” because of the “great copyright firestorm.” Why? “The Internet,” he explains, “is not as generous as it used to be. Especially not after the FBI closed down the cyberlocker service Megaupload on January 19, 2012. Other major cyberlocker services such as Rapidshare, MediaFire, or Depositfiles panicked, fearing legal repercussions. They erased huge amounts of uploaded music. And blog sites like Blogger also freaked out and closed many accounts. This meant that music bloggers lost their cyber warehouses and these warehouses’ contents. Therefore, after January 19, 2012, it would have been impossible for anyone to make Lektion III without an insane budget.”[3]

The art of sampling is fundamental to Lektion III. It is made in the tradition of audio collage, which American hip-hop developed during the 1980s with the arrival of affordable digital samplers. Christensen summarized the problems arising with this method of collage: The “British The JAMs—later The KLF—declared on their album 1987 (What The Fuck Is Going On?) (1987): ‘All sounds on this recording have been captured by The JAMs in the name of Mu. We hereby liberate these sounds from all copyright restrictions, without prejudice.’ That doesn’t hold up in court when you sample ABBA’s ‘Dancing Queen,’ so the album was called back and destroyed.”[4] I quoted this passage because the idea of a liberation of samples will be renewed with The Society for the Emancipation of Sampling, my third case.

Christensen continues: “The final freeze in hip-hop came when the American

rapper Biz Markie did the wrong thing at the wrong time, in 1991. Without permission he sampled the Irish singer-songwriter Gilbert O’Sullivan’s ‘Alone Again (Naturally)’ on his track ‘Alone Again.’ There was lawsuit, and a hammer that came down hard: […] the entire circulation of the album I Need A Haircut featuring ‘Alone Again’ was destroyed.”[5]

Christensen develops the contextual frame in which Lektion III was made: “In 2005, a final nail was hammered in the coffin that currently contains the art of American sampling. The United States Court of Appeals for The Sixth Circuit determined that it was illegal to sample when the hip-hop outfit N.W.A. sampled less than two seconds from the intro to Funkadelic’s “Get Off Your Ass and Jam.” Three notes and they were out. Even though they had pitched the sample to a different key and mixed it deep down into a short part of “100 Miles and Runnin.” You have to listen very hard to spot it. The verdict effectively meant—and still means—that you have to get permission for the smallest, most insignificant, even almost inaudible sound bite you use […]. This is the copyright climate that Den Sorte Skole are operating in.

Why didn’t Den Sorte Skole just clear all the samples in advance, you might ask? Well, they actually approached the Danish branch of IFPI, the International Federation of the Phonographic Industry, and asked for collective clearance of all the samples used on Lektion III. IFPI refused […]. Instead, Den Sorte Skole was asked to clear the samples individually.” But “that would cost a lot of money, maybe millions of dollars. And it might take a decade to find the rights holders and negotiate the deals.” As there are “three types of rights holders on any sample: Those respectively owning the rights to the composition, the recording, and the record in question that it’s released on,”[6] it seemed to be impossible to do so.

For Christensen the crucial question is: “Are the works of Lektion III transformative? Have they composed something new out of something old?”[7] For him it is of course “super detailed and grand scale samplerdelic,”[8] a genre of its own with landmarks like DJ Shadow’s Endtroducing…... [sic!] (1996) or RJD2’s Deadringer (2002). This is also how Den Sorte Skole see themselves. They regard Lektion III as “a true gray area,” and argue that “we have created a unique composition to such a degree that we would fall under the ‘fair use’ transformation rule under American copyright law […].”[9]

Let’s listen now to some more of Den Sorte Skole’s explanations, in an interview with Electronic Beats former editor-in-chief Max Dax. The latter declares the album to be a “sonic safari through a veritable jungle of styles,” “made to create music that questions the notion of authorship and originality,” because of being “in light of current copyright law […] a highly illegal album.” “To me,” Dax says, “the album is like a big question mark. You ask the question, but nobody has an answer.”[10]

The Danish duo describes their creative process as follows: “[…] we sat for a whole year in our studio listening to 200 albums a week for seven hours a day and eventually creating our own archive with all the usable samples that we’d find during these listening sessions. But then you suddenly encounter a rhythmic pattern in Thailand that corresponds with another pattern in Colombia, and with our DJ backgrounds we tried to figure out if they somehow match. We didn’t pitch any of the samples to make them fit. We insisted on finding matches instead.” And so “after hours of inconclusively trying to match a sample with something from our archive, something suddenly truly beautiful touched our ears—simply because two musicians from different times and different worlds started to play together.”[11]

To “release Lektion III with an extensive booklet of liner notes […] carefully listing each and every sample that we’ve used and crediting the artist, year, country, song, and the album we found it on,” means “sharing information was a big, big part of the project. In that way we were able to honor our sources and hopefully inspire people to dig into these […] discographies.”[12] So Lektion III is also a seduction to follow the often obscure music, which has been used to create it, and a seduction to focus on a sort of “counterhistory to the official narrative,”[13] as Max Dax put it.

But there’s more going on. Den Sorte Skole formulated a critical statement with Lektion III. They say, “Copyright in music today favors big corporations and successful musicians. You can’t sample Madonna without immediately facing a lawsuit from her lawyers or paying her off with a lot of money. But if you are an African, Belgian, or Chinese producer and doing something interesting, you can be sure that it’s much more difficult to sue the American production company who took your idea and changed it into something new. You’ll starve before you get your day in court. But the American producer who just sampled an old Turkish record won’t be sued by the family of the copyright owner because they won’t know about it. He didn’t credit the original source and will run off with both the fame and the money. That’s cultural imperialism in disguise, and that’s exactly the reason why we made an extensive booklet that functions as a guide to Lektion III.”[14]

They continue: “this is the political part of our project: to challenge the existing laws and the music business. We actually posed the question directly to the Danish branch of […] the International Federation of the Phonographic Industry. We asked them for a collective clearance of all the samples and suggested that we split the royalties with all the respective copyright holders. We waited for three months, and then they said they wouldn’t do it. They essentially pretend to be representing the interests of the authors but somehow always seem to reject solutions that would benefit them.”[15]

Concerning the future, they conclude: “On the Internet, a new culture of sharing content has already spread. I think the kids of today don’t give a shit about copyright. They simply don’t understand the problem. They can’t understand why the old laws should kill creativity. They can’t understand why they are being criminalized for doing what people have been doing throughout history: taking the things that surround them, altering them, developing them with the technological methods. And the whole copyright issue gets even nastier when you look at vaccines or AIDS medication for instance. Things have to change, and we are proud if Lektion III can play even a microscopic role in this process.”[16]

In an interview with Norman Fleischer they added, “I think it is obvious that you can’t rip off a Michael Jackson hook, add four to the floor and make a lot of money. However we think sampling should be legal, but that you should register what you have done and have a system for distributing the earnings. Today the system favors the big corporations, lawyers, and the biggest musicians.”[17] So Den Sorte Skole recommend the registration in general of all samples used for a track and a general fee, distributed in a fair way to all the right holders involved, based on the real amount of money made with sample-based music. I would call it a democratic, non-hierarchical approach.

2. The second case I would like to introduce is Nate Harrison’s Can I Get An Amen? (2004), an audio installation with vinyl record and record player

Can I Get An Amen? is an artistic research project. It unfolds a critical perspective of perhaps the most sampled drum beat in the history of recorded music, the “Amen Break.” This breakbeat has been used so much, “I might argue it’s now entered in the collective audio unconscious,”[18] as Harrison says. It is a short part of “Amen Brother,” recorded 1969 by The Winstons, here it is: Sample 1 (01:17–01:26). With the advent of samplers and hip-hop in the 1980s, the break was heavily used. Here are three examples of the use of the “Amen break”: Sample 2 (03:34–04:39). Later on, year after year, sampling after sampling, the same break found its way into Jungle, Raga, and Techno, and most of all in Drum and Bass.

“Where are the Winstons in all this?” Harrison asks. The answer is: “They didn’t care.”[19] According to Harrison, this has to do with musical genres. Hip-hop was underground; so were Jungle, Drum and Bass, and Techno. “There seem to be a brief few glory years back then when the novelty of sampling and the rate at which it was employed as a new technique grew faster than the rate at which any sort of copyright bureaucracy could maintain the law,” Harrison notes. And he adds that “sampling was not seen merely rehashing past sounds but as an attempt to make something new from something old.”[20]

However, as soon as mainstream attention and big money jumped in, corporations and copyright holders cracked down on copyright violation.

Coming back to The Winstons: despite being sampled hundreds of times, they “never pursued legal action.” For Harrison it seems the Amen break “had entered into a type of public domain; if not legally, then certainly culturally.”[21] Nevertheless, the story doesn’t end here but comes to a next level. Sample CDs for producers and beat makers sell the “Amen break,” 2002, “copyrighted” by the Zero G. company. So it seems we have two copyrights of the same material: The Winstons and Zero G.: Sample 3 (13:13–14:22).

Harrison comes to two conclusions. The first revisits the history of the use of the “Amen break” focusing on sampling as cultural technique and ending with the concept of Creative Commons. Sample 4 (14:45–15:48). In the second, Harrison argues that overprotecting cultural property is damaging culture. Sample 5 (17:22–17:55).

3. My third case is called more circulations, a seven-inch record made by the Society for the Emancipation of Sampling aka Jan Jelinek (2012)

The Society for the Emancipation of Sampling calls itself in the liner notes “rather a rough idea,” “committed to one primary and pragmatic notion: financial backing and legal support in case of active breaches of copyright—the process of sampling.”[22]

The background for the society’s activities is that music copyright disputes are mostly about money, in most cases legal fees. “So,” the society suggests, “what if the members of the G.E.S. contributed an annual fee to cover such fees […]? The sampling artist could pursue his work, secure in the knowledge that any legal correspondence or similar would be covered by the society.”[23]

The society’s aim is “to prevent persistent worries about the source material’s recognizability—does it require further distortion or modification to avoid infringement of third-party rights?” But the more general aim is to “enable the emancipation of aesthetic and content-related consideration from copyright claims” as well as the “decriminalization of sampling.”[24]

Despite this idea at the society’s heart, how does a “Society for the Emancipation of Sampling” sound? On the society’s records we hear audio collages with pre-existing music played in public space and recorded as field recordings, with all the ambient sounds and random noise. For example, you could do it with Madonna’s “Hung Up” played at a shopping mall, and recorded there. Hence, the method is clear: “playback devices are placed in public space and broadcast the desired sampling material.”[25] The society’s question is “to what extent does the recording process affect potential claims?” Their own answer is that “the resulting field recordings relegate music to the casual, circulating background elements—just one event among many.”[26] And here they come with the main question: “Do the rules of copyright still apply?” At least the society proposes “a potential solution to the criminalization of sampling: take your sources and sample them in public space.”[27] As part of the public space, of the public situation, following the concept, music changes its status and is going to be public, becomes public itself. Therefore it can be treated and used as any field recording made in public space.

Axel Ganz talks about “präparierte Lautsphären,”[28] “prepared soundscapes” that the society builds up and uses. Ganz’s term is not overartificial at all, instead recalling a term like “prepared piano” in music—making us think of “prepared soundscapes” as an instrument like the “prepared piano,” an instrument not only in a legal but also in a musical sense, changing the sounds by environments.

Axel Ganz sees the society’s recordings as a mise en scène of a recording situation as well as a utopia of a space free of copyrights.[29]

Being utopian, the third case is an impulse to start questioning practices of dealing with copyrights, like the first one. Not to forget the second case, which calls copyrights into question not only with two different holders of copyright for the same piece of music but with demanding to take care of the relationship of creative possibilities and overprotection of copyrights.

Den Sorte Skole points to this relationship, saying that “we try not to have our creativity being limited or blocked by legal restrictions.”[30] And regarding Lektion III, Sebastian Reier asks: “Shall sampling not be regarded as a form of cultural tradition, preserving culture?”[31]

How are we allowed to deal with the past and its cultural artifacts? This was the main question in my abstract. I still have no solution. Especially since the legal situation is so different from one country to another. Turkey, for example, still has no functional copyright law for music concerning sampling and music’s re-use and re-release. As far as I know, they are currently drafting one.

What can be observed are different strategies of dealing with the problem. We have learned about three of them. They aim at questioning the status quo—or the absence thereof—of securing all possibilities for free creative expression. The freedom of art, protecting visual arts in a completely other way than aural arts, enabling whole genres of sample-based art like collage or appropriation art, seems to be in the focus of the three strategies we have seen here.

That’s why these strategies are similar to art or media art projects like Mediengruppe Bitnik’s Opera Calling (2007)—an artistic intervention into the system of the Zurich Opera.[32] Audio bugs were placed within the opera house’s auditorium and the general public outdoors was given access to the performances on stage—free of charge.

The Zurich Opera tried to find the bugs and first threatened to take legal action if the transmissions were not stopped. This kicked off a discussion about cultural property and ownership. Later on the Zurich Opera decided to tolerate the “Opera Calling” project.

So my attempt at a conclusion would be that as long as copyright laws are felt to restrict free creative expression in music, strategies will be developed to question this restrictiveness: legal, semi-legal, and illegal strategies. Musicians will also focus on making music, but as long as they are challenged by restrictive laws, they will develop strategies or artistic concepts to cope with them, doing music on laws, playing on restrictions, making conceptual sounds. It’s worth listening to the genre of “law music,” in any sense.

 

Holger Lund is a professor for media design at Baden-Wuerttemberg Cooperative State University (DHBW Ravensburg), Ravensburg, Germany since 2011 and a curator and DJ living in Berlin. He has finished his PhD on Max Ernst’s collage novels in 2000. From 2008 to 2011, he was visiting professor for theories of design at Pforzheim University of Applied Sciences, School of Design, Pforzheim, Germany. Together with Cornelia Lund he runs the media art and media design platform fluctuating images, Berlin. He has published on the relationship of sound and image and is the coeditor of Audio.Visual—On Visual Music and Related Media (2009) and Design der Zukunft as well as co-compiler of Bosporus Bridges 2. A Wide Selection of Turkish Funk and Jazz Pearls (2011) and Saz Beat (2013). Holger Lund was a fellow for art coordination at Akademie Schloss Solitude from 2001 to 2002.

[1] See http://www.discogs.com/Den-Sorte-Skole-III/master/554432 (accessed March 1, 2015).

[2] Ralf Christensen: “Time Space Collapse Royal,” in: Den Sorte Skole (eds.), Den Sorte Skole III, booklet accompanying the record set (2013), p. 1.

[3] Ibid., p. 2.

[4] Ibid., p. 3.

[5] Ibid.

[6] Ibid., pp. 4f.

[7] Ibid., p. 5.

[8] Ibid.

[9] Den Sorte Skole in Norman Fleischer: “Interview: Den Sorte Skole—The system favors the big corporations,” December 19, 2013, http://nbhap.com/music/interviews/den-sorte-skole/ (accessed March 1, 2015).

[10] Max Dax: “Den Sorte Skole—‘Every sound tells a story, and every voice has an echo’”, in: Max Dax (ed.), Electronic Beats (11/12/2014), http://www.electronicbeats.net/en/articles/den-sorte-skole-every-sound-tells-a-story-and-every-voice-has-an-echo/ (accessed March 1, 2015).

[11] Ibid.

[12] Ibid.

[13] Ibid.

[14] Ibid.

[15] Ibid.

[16] Ibid.

[17] Norman Fleischer, interview (2013).

[18] Nate Harrison: Can I Get An Amen?, audio installation with vinyl record and record player (2004), https://www.youtube.com/watch?v=XPoxZW8JzzM (accessed March 1, 2015). See also: http://www.discogs.com/Nate-Harrison-Can-I-Get-An-Amen/master/509676 (accessed March 1, 2015).

[19] Ibid.

[20] Ibid.

[21] Ibid.

[22] Gesellschaft zur Emanzipation des Samples (Society for the Emancipation of Sampling) aka Jan Jelinek: more circulations, liner notes (2012), http://www.discogs.com/Gesellschaft-Zur-Emanzipation-Des-Samples-More-Circulations/release/3389701 (accessed March 1, 2015).

[23] Ibid.

[24] Ibid.

[25] Ibid.

[26] Ibid.

[27] Ibid.

[28] Axel Ganz: “Gesellschaft zur Emanzipation des Samples—Circulations,” in: Zloty Vazquez and Axel Ganz, Jahrgangsgeräusche. Popkultur und unbedingte Zonen (07/10/2009), http://www.jahrgangsgeraeusche.de/2009-07-10/gesellschaft-zur-emanzipation-des-samples-circulations/ (accessed March 1, 2015).

[29] See ibid.

[30] Den Sorte Skole in Leonhard Dobusch, “Remixer #40 Martin Højland (Den Sorte Skole): ‘Wir hoffen die Dinge ändern sich’“, in: Netzpolitik.Org (03/13/2014), https://netzpolitik.org/2014/remixer-39-martin-hojland-den-sorte-skole-wir-hoffen-die-dinge-aendern-sich/ (accessed March 1, 2015). Translation the author’s.

[31] Sebastian Reier: “Jazz: Das Ohr zur Welt”, in: DIE ZEIT No 41/2013 (10/04/2013), http://www.zeit.de/2013/41/jazz-den-sorte-skole (accessed March 1, 2015). Translation the author’s.

[32] See https://wwwwwwwwwwwwwwwwwwwwww.bitnik.org/o/ (accessed March 1, 2015).