AutoTune has become one of the most annoying and overused techniques in current hip-hop, but there's probably more to it than everyone just getting on the latest bandwagon. Rather, the death of sampling in hip-hop is an economic and legal one.
The staple of hip-hop's beatmakers for nearly 30 years, sample-based production has slowly eroded over the past decade, due to rising costs and rampant litigation. Today the average base price to clear a sample is $10,000, and the threat of lawsuits over copyright infringement looms heavy over artists and labels. High-profile rappers have become legal targets for music publishing companies, while independent MCs struggle to compete. With no standardized pricing, the prohibitive cost of samples has altered the creative approach of many hip-hop producers. The trend toward purely electronic production -- synthesizers, drum machines, Auto-Tune -- has injected major stylistic changes into the genre, with producers like the Neptunes, Timbaland, and T-Pain at the forefront.
This once again highlights the problems created by the Bridgeport decision, which held that there is no de minimis sampling when it comes to digital samples. In that case, the Sixth Circuit overturned the trial court's decision that a three-note combination from a solo guitar used in a rap song was de minimis. Instead, they reasoned that using a digital sample was always a direct copy and "never accidental", and thus must be cleared no matter what.
Cost is a major issue, particularly for smaller acts.
A sample must be cleared with two camps: those who own the master recording (typically the record company that released the song or whoever purchased the catalog) and those who own the publishing rights (usually the songwriter). "Generally, one side is going to cost about as much as the other," says Eothen Alapatt, general manager at Stones Throw Records. Sampling a major artist like James Brown would cost about $20,000 -- $10,000 for the master recording side and $10,000 for the publishing -- a figure that rivals the entire budget for an album released on Stones Throw. But to not clear the samples on an album poses a high risk. Though he wouldn't get specific, Alapatt says that Stones Throw has paid $25,000 to $35,000 to have samples cleared after the release of an album.
Remember, copyright is a limited monopoly with the stated goal of balancing the "incentive to create" with the interests of the public. In many ways, the current state of sampling swings way too much to protect the owner, offering carte blanche protection for digital samples no matter how small.
RZA believes sampling needs to be regulated, starting with standardized fees and government oversight. Producers often have to give 50 to 100 percent of any publishing revenue to the original artist they're sampling. RZA would like to see a new system where the publishing is equally split between the new producer and original artist, and in which session players from the initial recording even get paid again. "All this publishing was taken away from the artists," he says, "and that kind of raped the hip- hop industry."
If the uncertainty and costs are effectively drying the market for samples, everyone suffers. The original artists will lose an ongoing revenue stream and creativity suffers. And we'll all be forced to listen to more AutoTune. Just one more reason to rethink the copyright in the digital era...