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No sale = no defense

From Flosstradamus to Kanye West, artists are learning the hard way that they can catch heat for an uncleared sample even if they give their songs away

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In early February production duo Flosstradamus—Josh "J2K" Young, who lives in Chicago, and Curt "Autobot" Cameruci, who's left for Brooklyn—finished mixing a song called "Total Recall." After spending the better part of a decade building a reputation in the international dance-music scene as DJs and remixers, they'd decided to focus on their own compositions—in November they'd released their first EP of original material, Jubilation, on the Fool's Gold label. (Jubilation 2.0 came out this week.)

"Total Recall," like most other recent Flosstradamus tracks, combines expansive, rave-influenced electronic dance music with the stuttering rhythms of the southern-born hip-hop varietal known as "trap" music. "It was really cool," says Paul Devro, manager for Diplo's label, Mad Decent. "Josh came through and was like, 'Hey, you know I have more stuff, would you guys want to put it out?'" Devro figured that an EP built around "Total Recall" would work well on madcap Mad Decent's even more freewheeling subsidiary, Jeffree's, which launched in December 2011 and releases music mostly for free through nontraditional platforms like microblogging platform Tumblr and file-locker service Mediafire.

Jeffree's tends to post a new release for free every week or two (usually a single or an EP), and occasionally rounds them up and sells the resulting collection of MP3s, encoded at a higher bit rate for improved fidelity. Only a couple of the label's releases have used samples, and they've been taken out of consideration for the for-pay collections. This policy was developed, according to Devro, as a pre­emptive defense against lawsuits by copyright holders. If a label isn't charging for a song containing a sample, the thinking goes, how could the song damage the value of the original copyright? And who would bother going after people for samples they're not even trying to make money from?

Well, Netherlands-based "hardstyle" electronic dance musician Olaf Veldkamp would. "Total Recall," released on February 23 as part of a three-song EP of the same name, uses a sizable chunk of melody from "Recalled to Life," a song Veldkamp released under the name Dutch Master in early 2010. Though Jeffree's wasn't charging for the EP, on April 12 the label received a cease-and-desist e-mail from Veldkamp and his legal team. Devro says Jeffree's first offered to rebrand "Total Recall" as a Dutch Master song remixed by Flosstradamus, an account that Veldkamp's lawyer confirms. When Veldkamp rejected rebranding the track, the label removed it from the Total Recall EP. (The original version of the EP is easy to find reposted elsewhere, but that's the Internet for you.)

EDM and rap artists have experimented much more thoroughly with releasing music for free online than their peers in other styles. The genres have shared roots in sampling, remixing, and otherwise playing around with preexisting recordings—and because getting a sample cleared (which costs around $5,000 on average these days) is beyond most musicians' budgets, EDM and rap also share a history of doing their playing around without permission from rights holders. In the days of physical media, copyright scofflaws had to release music surreptitiously, like bootleggers, to avoid being hunted down and sued. But now that the absence of manufacturing expenses makes it practical to distribute derivative works online for free, unauthorized samplers and remixers have begun to maintain (like Jeffree's) that they're in the clear because they're not diverting consumers' money from the original release. File lockers and sites like SoundCloud overflow with illicit remixes and mix tapes full of uncleared samples.

But the argument that not charging for a derivative work makes everything OK doesn't hold water in the States. "Copyright infringement is the use of somebody else's copyrighted work," says Chicago entertainment lawyer Linda S. Mensch, who specializes in intellectual property law. According to her, and to several other lawyers I spoke to, it doesn't matter whether or not you sell the results. The problem, Mensch says, "is they're mistaking the notion of damages—'Well, I haven't made any money'—with the notion of liability, and they're completely separate. There are several measures of damages, only one of which is damages in profits. So you can elect, if you are the holder of the copyright, to go for statutory damages." Statutory damages are determined by the court, and can range from $250 to $150,000 per infringement.

Flosstradamus aren't the only act to find themselves in trouble recently over uncleared samples in a giveaway song. Kanye West—who's run into sample issues in the past—was sued in late March by Robert Poindexter of R&B group the Persuaders over his use of a sample from their 1973 song "Trying Girls Out" on a remix of Jay-Z's "Girls, Girls, Girls" that West included on his free-to-download 2006 mix tape Freshman Adjustment 2. And Young Chop, the local producer behind Chief Keef's "I Don't Like," has threatened to "sue the shit" out of West for the remix of it that dropped early this month. The vast number of copyright-infringing mix tapes and remixes floating around on the Internet, many by highly successful artists, could be a gold mine for rights holders willing to go to court.

Services such as Legitmix, which uses clever technology and an even more clever legal strategy to allow artists to safely sell sample-based works without paying for clearance, will surely continue to proliferate. But lawsuits like Poindexter's could still have a chilling effect on the Web's sampling and remixing free-for-all—not least because Legitmix (for example) has a limited library of sample fodder and charges users for songs made via its platform. Considering that this free-for-all is in large part responsible for the unprecedented amount of cross-genre communication in modern pop music, this would be a bummer on an epic scale.

One approach that might help, Mensch says, would be for rights holders to make clearing samples as simple as registering cover songs. It's easy and affordable to cover a song on a record—no permission is needed from the rights holder, who is paid a set amount (usually just pennies) per copy of the cover version that's sold. Clearing samples, on the other hand, requires negotiating with the owners of each work being sampled, any one of whom can simply deny permission, and the owners of valuable catalogs can ask whatever they want. Going to a cover-song model would probably discourage free distribution of derivative works, since clearance would have a cost—but that cost would almost always be much lower, resulting in more artists clearing more samples (instead of just taking what they want and hoping for the best).

Though Mensch says there's a "movement" to reform sampling laws and remove the obstacles to getting samples cleared, she admits that it's too small to be very influential. But she respects hip-hop and dance music, and she's seen the damage the current system can do. She once represented a rap group that lost a clearance suit and ended up owing 50 percent of their royalties to each of three sample owners—for every record they sold, they had to pay out 150 percent of what they made. Mensch hopes that fans of rap and EDM can turn sampling reform into a political issue.

With any luck they will. The aforementioned chilling effect isn't yet being felt in the wider musical world, but in some corners it's already set in. "It's kind of scary," Devro says of his run-in with Veldkamp's lawyers. "It definitely makes your skin crawl."

Correction: This story has been updated to reflect a response by Olaf Veldkamp's lawyer, which arrived after it went to press.

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