Musical Musings: Sampling and Fair Use
By Andrew Willoughby
If you know me, you know I love Death Grips.
I’ve said it countless times, I even wrote about it in a review of the band’s latest LP “Bottomless Pit.” I firmly believe Death Grips to be one of the most creative, revolutionary and influential musical projects since the Beatles.
However, they’re definitely not for everyone.
The Sacramento trio burst into the underground and alternative hip-hop scene in 2011 with their debut album, “Exmilitary,” a record that raked in a profit of approximately $0 for the band – thanks to a plethora of uncleared samples.
These samples also barred the album from being released on streaming services such as Apple Music and Spotify. The only way it can be obtained is through the band’s official website thirdworlds.net.
Eleven of the album’s 13 tracks contain at least one sample which was used without the permission of the original creator – some even have three or four.
The album contains samples ranging from other artists’ work such as Black Flag’s “Rise Above,” David Bowie’s “The Supermen” and Link Wray’s “Rumble” to obscure sources such as vocal clips from the video game “Half-Life 2,” a clip from the viral video “Mental Health Hotline” and even an early computer-animated short from 1986.
Death Grips aren’t afraid to make music out of nearly anything.
The band put tremendous e[orts into composing, recording and mastering these songs, and I firmly believe they deserve monetary compensation for their work.
What’s holding them back from doing so is copyright law.
I’m no lawyer, but the way I see it, Death Grips isn’t breaking any laws on this record. This is because I believe the way the band uses samples falls under fair use.
One of the biggest deciding factors in fair use is whether the implementation of someone else’s property is transformative.
According to copyright.gov, a work is transformative if it adds “something new, with a further purpose or different character, and does not substitute for the original use of the work,” – something that Death Grips definitely does.
Admittedly, there is the exception of the clip from a Charles Manson interview which serves as an introduction to the themes of the album. I can argue that the use of this clip is non-transformative. However, Death Grips could easily cut this and re-release the record. Myself as well as countless other fans will gladly pay to support the band.
The “transformative” law is a relatively new subject, so specifics are still being worked out in court cases.
It doesn’t seem that this is having an adverse effect on Death Grips, though. Their output has been both constant and consistent since their 2011 debut.
The band still works with samples. Every single sound on their 2014 album “N***as On the Moon” is a manipulated vocal sample from Björk and they only recently entered the studio with experimental harsh noise musician Lucas Abela to produce samples for their upcoming seventh record.