Micah Loewinger: In March, a beloved hip-hop group's music became available on the streaming services

News clip: After decades of legal wrangling over sample clearance, the seminal hip-hop group's music will finally be available online today.

News clip: You can actually listen to the De La Soul Catalog. It's an amazing, amazing thing to happen.

Micah Loewinger: A frustrating entanglement of copyright law and record label in-fighting kept De La Soul's music off of Spotify and Apple Music, and thus, largely out of the public imagination. In an interview from 2018, De La Soul members, Trugoy the Dove and Maseo reflected on a series of copyright battles.

Trugoy the Dove: The biggest fear is just almost feeling like you're being written out of history. That's how big--

Maseo: Being written out of history, let alone financially being taken advantage of.

Micah Loewinger: I spoke to Dan Charnas. He's the author of Dilla Time, the Life and Afterlife of the Hip-hop Producer who Reinvented Rhythm. We began the interview discussing De La Soul's song, Cool Breeze on the Rocks.

Dan Charnas: It is a complete riot of a sonic collage

[music-De La Soul: Cool Breeze on the Rocks]

Dan Charnas: These little excerpts of songs are talking to each other. At the very end where Michael Jackson begins singing, "I Want to rock with You," but the word rock is cut out, and instead, Prince Paul inserts run from Run-DMC screaming right in the middle of it. It let us all know that this was going to be a new way to express ourselves in this post-modern referential era. Another moment was the very first track on the album, The Magic Number.

[music-De La Soul: The Magic Number]

Dan Charnas: It's based on a sample of Schoolhouse Rock, and then they're getting it to talk to Johnny Cash, which is talking to Eddie Murphy in this track. That really is the moment that cracks open this idea of how you can use this music to talk to culture, to talk to the future, to speak to the present.

Micah Loewinger: In a way, the sampling kept, it anchored to the past because until recently we weren't able to hear this music on the streaming services. What was it legally that kept this album tied up and collecting dust in record bins rather than streaming online?

Dan Charnas: There was a huge issue of uncleared samples. The dispute between the group and their former label Tommy Boy, was essentially, as I gather, about who was going to pay.

Micah Loewinger: Who's going to pay for these uncleared samples?

Dan Charnas: That's correct. Was it going to come out of the record company share? Was it going to come out of the Artist's share? Reservoir music came in and I think they essentially bought Tommy Boy's sound recordings and injected the cash that enabled some of these samples to clear, but some of them were not clearable. The copyright owners, the record labels can charge anything they want for any piece of music that's being sampled and prevent creators from creating in the way that we all create now. It's not like it's just rap music. Sampling breakbeats and using digital loops became one of the major ways that pop music was created from the 1980s onward. If I take you back to 1990 and we listen to Milli Vanilli.

[music-Milli Vanilli: Girl You Know It's True]

Dan Charnas: Two of their biggest hits in 1990 had a sample of Ashley's Roachclip by Chuck Brown in the Soul Searchers, a very famous, Great Beat record.

[music-Chuck Brown and the Soul Searchers: Ashley's Roachclip]

Dan Charnas: It's subsided a bit that way of making music because there is such a chilling effect because there are essentially zero protections for sampling.

Micah Loewinger: Why can't producers just sample from a set of previously cleared songs to avoid the copyright issues altogether?

Dan Charnas: Well, that response though understandable, comes from a place of not knowing what Hip Hop is and what sampled music really is. It's a reference to history. It's not just, "Oh, I can't play the drums, and let me find somebody who can play the drums and loop it up." That's what people really think sampling is. It's not. The reason that everybody samples the Honey Drippers, Impeach the President--

[music- Honey Drippers: Impeach the President]

Dan Charnas: -or Melvin Bliss's Synthetic Substitution.

[Music-Melvin Bliss: Synthetic Substitution]

Dan Charnas: Why you don't know the names of those records, but everybody samples them is that they are a common language between MCs, producers, singers, audiences. It's the language of a culture every bit as much as the 145-chord progression, which is completely public domain, right? It is the lingua franca of American music, but the fact that Twist and Shout--

[music- The Beatles: Twist and Shout]

Dan Charnas: And La Bamba

[music- Ritchie Valens: La Bamba]

Dan Charnas: Have the same chord progression and the same top-line melody--

[music- Ritchie Valens- La Bamba]

Dan Charnas: They both share that. We've accepted that level of copying. Yet if somebody like the great late producer J. Dilla, were to take two seconds of a samba record and flip it and reverse it and make it non-recognizable, he could still be sued for that usage. There was a moment where J. Dilla stopped sampling because he and Q-Tip were sued over a sample of a song called UFO by the group ESG, which is again part of that common cannon of breakbeat records. It was something like over $100,000 for the use of this tiny little sample.

[music-ESG: UFO]

Micah Loewinger: This is the rink, rink, rink, rink, rink, rink.

Dan Charnas: Very good. Look at you.

Micah Loewinger: I love ESG. I love J. Dilla.

Dan Charnas: [laughs] You and I frankly would not know about ESG if it weren't for Hip-hop. Let's be real.

Micah Loewinger: In 1991, the first Hip-hop sampling case went to court over New York rapper DJ Beat Boxer, Biz Markie's right to the use of Gilbert O'Sullivan's, 1972 Ballad.

[music-Gilbert O'Sullivan: Alone Again (Naturally)]

Micah Loewinger: Federal Judge Kevin Duffy opened his opinion with the lines, "Thou shall not steal." What happened with this case and what kind of precedent did it set?

Dan Charnas: It allowed the equation of sampling and interpolation with theft. My point is this, the devil in all of this is not copying, the devil is deception. The devil is putting out a record that confuses the consumer, that it's not the record that you think you're buying or not paying for a substantial use.

Micah Loewinger: You actually published a biography about J. Dilla last year called Dilla Time: The Life and Afterlife of the Hip-hop Producer Who Reinvented Rhythm. For listeners who are lucky enough to be encountering his name for the first time, who was J. Dilla?

Dan Charnas: J. Dilla had a very short career in the 1990s. He was affiliated with groups like De La Soul and A Tribe Called Quest, Common.

Micah Loewinger: Erykah Badu.

Dan Charnas: Yes. He died at the age of 32 in 2006 of a rare blood disease, but in that short life of his not only was regarded as the master of the sampled art form, but he literally on his machine created a new rhythmic time feel that did not exist before him. Our popular music has had two basic time feels, straight time, where every beat is even swing time, where beats are uneven, and J. Dilla collided those two time fields in what I call Dilla Time.

Micah Loewinger: Can you give an example of a Dilla Time Track by J. Dilla?

Dan Charnas: Yes, a song called Come Get It off of his album, Welcome to Detroit in 2001.

[music- J Dilla: Come Get It]

Dan Charnas: If you listen to the very first bars of that song, you can hear swing time and straight time really fighting with each other and it gives this limping drunken quality to the rhythm. It almost seems erratic, but it's not. It's completely deliberate. That has, for the first time a beat maker, an electronic music producer, influence the way that traditional musicians played their instruments and felt musical time.

Micah Loewinger: Can we talk about his album Donuts? It was, I guess you could say his last official release. It's an experimental Hip Hop album, all instrumentals. In some ways, it can be heard as a kind of concept album about sampling. Even the first song features this very memorable drumbeat.

[music-J. Dilla: Donuts (Outro)]

Micah Loewinger: It samples this amazing song called The Worst Band In The World by British Band from the '70s, 10cc and that original song is itself a satire of the music industry and it's delightfully meta. One lyric from the song goes, "Here I am a record on a jukebox."

[music-10cc: The Worst Band In The World]

Micah Loewinger: A physical object of music singing to us and Dilla is borrowing from this physical object. It's almost as if he's encouraging us to think of the records themselves that he's using. He's asking us to be aware of his medium and his special relationship to it.

Dan Charnas: Now that's some great analysis, Micah. I've never heard that before. That's great.

Micah Loewinger: Let's go.

Dan Charnas: I'm convinced. You got me.

Micah Loewinger: As you've said, Donuts was a return to what he did so well, but prior to his work on it, the process of trying to get samples cleared had become so frustrating. He nearly stopped sampling altogether and which I think speaks to your point of the litigiousness around clearing samples can have a chilling effect on this type of creativity.

Dan Charnas: That's the thing that frustrates me that nobody wants to address. We are all so serious about the moral right of artists to deny use of parts of their songs, but we have nothing to say about the moral right of artists to create in the first place. Sampling has been demonized as copying.

Micah Loewinger: How much of that is just racism? A lot of the people who were defining sampling as an art form were young Black people.

Dan Charnas: Well, there are also people who feel that the use of the compulsory license in the 1950s was what allowed any record company to remake R&B songs using white artists and thus cut Black folks out of their due equity and access. Pat Boone remaking Little Richer, for example, or Pat Boone remaking Fats Domino. There is an argument that the compulsory license allowed that, but overall, watch what gets protected and who gets protected by law and watch who doesn't. Most of the folks who were suing were white artists, British artists who had essentially created their entire Irv out of Black music. Yet, looking at what these young Black programmers were doing as somehow unmusical or anathema.

Micah Loewinger: Hip-hop's about to turn 50 years old. That's 50 years of gray albums by artists who did manage to clear samples. The art form has flourished in spite of these legal obstacles. Then what's at stake here?

Dan Charnas: I would disagree. Listen to Paul's Boutique by the Beastie Boys. Listen to 3 Feet High and Rising by De La Soul. Listen to Public Enemy's, It Takes a Nation of Millions, or Fear of a Black Planet, all of those records happened in the late '80s or early '90s. You won't see them anymore. They don't happen anymore. Donuts, that had a lawsuit against it 15 years after Dilla died. It's very difficult to compose in this way without a lot of effort, a lot of time, and the risk of some copyright owner saying no for whatever reason.

As an artist, as somebody who loves this music, who's written a biography about the person who was at the apex of this style and to realize that that person never had any protection for what they'd practiced is anathema to me and it's the 50 year anniversary of Hip Hop. It's time to speak out on it.

Micah Loewinger: Dan, thanks so much.

Dan Charnas: Thanks for having me.

Micah Loewinger: Dan Charnas is the author of Dilla Time: The Life and Afterlife the Hip-Hop Producer Who Reinvented Rhythm.

[music]

Brooke Gladstone: On the Media is produced by Micah Loewinger, Eloise Blondiau, Molly Schwartz, Rebecca Clark-Callender, Candice Wang, and Suzanne Gaber. Our technical director is Jennifer Munson. Our engineer this week was Andrew Nerviano. Katya Rogers is our executive producer. On the Media is a production of WNYC Studios. I'm Brooke Gladstone. 

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