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The Hip Hop rich get richer while the Hip Hop poor get poorer. And this man is to blame...

Want to use samples like the Hip Hop elite but can't afford clearance? Blame this Irish guy - it's all his fault!

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There's no doubt that the Hip Hop rich are very rich indeed. And to get so rich they had to excel in three areas rapping, promoting Hip Hop culture, and creativity in making backing tracks from sampled sources.

The history of using sampled extracts of a wide range of musical sources goes back well over twenty years and has become an accepted part of Hip Hop culture.

However, samples have to be 'cleared' before you can release your record. Clearance costs a considerable amount of money. And where a budding rock musician can buy a fine guitar for $1500, that might not be enough to clear even one sample for release.

So if you are already successful at Hip Hop, then you have the money to clear as many samples as you like, and you can afford to pay extra if one that you really want costs a little more.

But if you are just starting out in Hip Hop, how can you possibly afford to use samples?

The alternative to clearing samples and using them legally is of course not to clear them and to use them illegally.

So the best advice to a budding Hip Hop artist who can't afford sample clearance is to give up their dream and not make any music at all. Don't worry, the existing Hip Hop elite will make all the music the market requires (and make even more money doing so!).

In practice it is ludicrous to think that people will give up making music simply because they can't afford clearance. The problem is that this condemns people to a lifestyle of illegality.

So the Hip Hop elite get to live their bling-laden lifestyles, and budding Hip Hop musicians are forced into being criminals.

It wasn't always this way. When sampling was first invented there were no hard and fast rules because copyright law was not sufficiently specific on the topic.

So creative musicians got to work and mixed and manipulated their source samples into an amazing variety of sonic textures.

Among them was a rapper called Biz Markie who is best known for 'Just A Friend'. His album 'The Biz Never Sleeps' went gold.

But trouble stuck when Biz Markie released a song called 'Alone Again'. This featured a sample from a song by Irish pop singer/songwriter Gilbert O'Sullivan. O'Sullivan's real name is Raymond Edward O'Sullivan. His stage name is clearly a play on the names of Gilbert and Sullivan, creators of light operatic works including 'The Pirates of Penzance' and 'The Mikado'. (And who would have thought there was a link between 'The Mikado' and Hip Hop?)

Gilbert, or at least his publishers, heard Biz Markie's tune and didn't like it. They took Warner Bros. Records, Inc. to court and won.

The ruling meant that permission to use any sample would in future have to be cleared with the copyright owner(s), and of course that would involve payment.

Legal battles often turn on very small issues and it's interesting to consider that if this case had gone the other way, the use of samples might be absolutely legal, and either free or paid via a statutory rate, which if it followed the example of the statutory recording right in the USA need not be prohibitvely expensive.

So Gilbert O'Sullivan is to blame for Hip Hop's woes at the grassroots level. Or is he?

Maybe it's Biz Markie who is to blame for the mess. After all, he called his song 'Alone Again'. O'Sullivan's song was 'Alone Again (Naturally)'. This is tantamount to asking for trouble, I would say.

So where are we now? It really does seem that there is something inherently wrong with the current system where budding Hip Hop musicians have to become criminals to get started.

What we need is a change to copyright law to permit sampling, perhaps with payment at a reasonable statutory rate, or some other workable payment mechanism.

Any suggestions on how that could be done would be most welcome.

By David Mellor Thursday November 30, 2006
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