Last summer, I received an email from an independent rap label, promoting one of its new releases. It had a note attached about samples. “Do your best to refrain from mentioning them by name unless you know they’ve been cleared,” the label owner wrote. “We’ve already had to pull records because people had named the source in YouTube comments and then it ended up on WhoSampled and the rights holders saw it, smh.”
For nearly as long as hip-hop has existed, there have been lawsuits from copyright holders about the genre’s use of samples, snippets of pre-existing songs and recordings repurposed as elements of the beat. The very first hip-hop hit, Sugarhill Gang’s “Rapper’s Delight,” was the subject of a legal challenge (settled out of court) from the members of Chic, whose “Good Times” bass line the pioneering rap song interpolated. Though sampling old records is no longer the only or even the primary means of making rap beats—its popularity having receded perhaps as a consequence of the legal risks—the lawsuits persist.
In 2021, tracking down potentially unlicensed samples is a lot easier than it was for Chic guitarist Nile Rodgers, who pursued remuneration over “Rapper’s Delight” after he happened to hear the record while out at a club. As the label owner alluded to in his email, the internet is filled with information linking hip-hop tracks with the songs they sample. (He agreed to be interviewed for this article under the condition of anonymity.) Compiled largely by well-meaning fans, on message boards, in comments sections, and on the popular sample-sourcing website WhoSampled, these ad hoc archives are nonetheless a bane for some rap producers and label owners, who see them as helpful directories for any rightsholders out hunting for a lawsuit. When I approached several established producers and labels, asking them for interviews about fans naming sample sources online, most declined to speak with me.
For some, publicly identifying a sample used in a song is tantamount to “snitching.” Rapper-producer Roc Marciano, whose minimalist beats helped spark a resurgence of interest in sample-based production in the 2010s, addressed the issue in a 2014 interview with HipHopDX: “Stop telling people what people use. I guess with the Internet, you can’t control it, and people just wanna share with the people… A lot of times, it’s genuine fans that just wanna spread the word. It’s a culture of sounds and samples. But snitching is a no-no, and I’m not feeling that.” Madlib expressed a similar sentiment to BBC Radio 1’s Benji B in 2013: “I see why a lot of my homies don’t sample... They got sued because y’all talkin’ about ’em on the blogs and stuff. That’s killin’ it for the game.”
The anonymous label owner put it just as bluntly: “Uncleared samples are illegal, so you’re enjoying this illegal music. When you do illegal shit, you should probably not talk about it too publicly on the internet.”
In March 2020, the rightsholders of 10cc’s “The Worst Band in the World” sued over the late J Dilla’s “Workinonit,” a crucial track from his masterpiece Donuts, which samples the British pop-rock band’s cheeky 1974 single. The conspicuous timing, coming 14 years after the 2006 release of Donuts, may be related to the fact that the plaintiff is not a 10cc member or songwriter, but Music Sales Corporation, a company that acquired the right to administer the copyright for “The Worst Band in the World” in 2019. I contacted Eothen “Egon” Alapatt, former label manager for Stones Throw, which released Donuts, who declined to discuss the lawsuit in depth. But he offered an opinion: “Do I think that some unnamed corporation that purchased intellectual property from some other corporation should be shaking down J Dilla’s estate?” he asked rhetorically. “No.”
Stones Throw founder Chris “Peanut Butter Wolf” Manak also declined to address the lawsuit directly, but made his frustration with the state of sampling law clear. “So many examples of great songs being made and then the label approached the original artist and they wanted too much money or too big a percentage and the song had to be shelved,” he wrote in an email. “And of course the fans naming sample sources discourages people from sampling as well.”
Negotiating with rightsholders for a license to legally use a sample can be a challenge. In the U.S., there’s no legally mandated standard dollar amount or percentage that rightsholders receive under such deals, and producers and labels have little leverage for negotiating favorable terms. Such discussions could delay a release significantly or derail it altogether. “We weren’t working to clear samples at the time,” explained Alapatt in a 2019 Red Bull Music Academy interview about Donuts. “We were working to get a record out in the most economical and efficient way possible.” He added that they made “handshake agreements with a couple of people.”
WhoSampled, which bills itself as “the world’s most comprehensive, detailed and accurate database of samples, cover songs and remixes,” compiles information about samples submitted by users and verified by a team of moderators. It is a useful resource for rap listeners, despite its complicated role in sampling culture. Chris Read, the London-based company’s head of content, said that using the website as a fact-finding tool for potential lawsuits is a violation of its terms of service, and that the practice “stands in opposition to the reason WhoSampled was created, which is to provide a place for music fans to discover the origins of the music they love and celebrate sampling as an artform.” He acknowledged that the site does not distinguish between cleared and uncleared samples in its listings, because information about sample licensing is not always made publicly available. Producers can request takedowns of listings related to their work if there is information that “they would prefer was not published” on the site, he added.
It’s difficult to know how any particular rightsholder found the information that led to an eventual lawsuit. In the case of Dilla’s 10cc sample, the text of Music Sales Corporation’s lawsuit mentions the use of “Workinonit” as theme music in a pair of Dave Chapelle comedy specials on Netflix. But some in the rap industry have their suspicions about fan chatter online. “If I’m the lawyer who represents James Brown’s publishing, I can go to WhoSampled.com, put in James Brown, and I’ve got millions of dollars’ worth of lawsuits that I can now strike,” says the aforementioned label owner. “Once a song is on WhoSampled, it doesn’t matter how popular it is. Now there’s this website that just tells [rightsholders], ‘Oh, here they are.’”
Alapatt concurred: “That website is probably the source of every copyright lawsuit taking place with anybody that put out a record that was successful enough and didn’t clear the sample on it.”
The fraught dynamic between the DJs and producers flipping rare and obscure samples and the fans who want a peek at their crates is nearly as old as the genre. In the beginning, they were more concerned with avoiding biters than they were with lawsuits. The late Robert “Rocky” Ford published what is widely considered the first news article on hip-hop in Billboard in 1978. The story opens with kids flooding a downtown NYC record shop looking for the same “b-beats” that hip-hop pioneer DJ Kool Herc used in his sets. In Jim Fricke and Charlie Ahearn’s 2002 book Yes Yes Y’all: The Experience Music Project: Oral History of Hip-Hop’s First Decade, Afrika Bambaataa describes using water to peel the center labels off records he played so audiences couldn’t visually identify them.
By the late ’80s, new technology made it possible for producers to take “the original hip-hop DJ concept and apply it to making hip-hop records,” by making “cut and paste collages using older obscure records and electronic samplers,” Manak explained. As a young San Jose producer, he debuted under the name Chris Cut on Lyrical Prophecy’s 1990 single “You Can’t Swing This.” “There was a pride in finding the most off-the-wall stuff sometimes and making hip-hop out of it,” he said.
In 1991, Gilbert O’Sullivan filed a suit against Biz Markie that established the use of uncleared samples as copyright infringement, placing a significant roadblock for sampling producers just as the practice was beginning to reach a creative peak. Then there were bootlegs like Pete Treats and the Tribe Vibes series, which compiled sample sources of particular star producers. As the ’90s became the 2000s, soul-sampling producers like Diddy’s Hitmen, Just Blaze, and Kanye West came to define the sound of mainstream rap, and with them came “sample troll” corporations that specialized in demanding proceeds from major releases. The Holy Book of Hip-Hop, a mysterious volume sold in record shops, claimed to identify the samples for hundreds of popular hip-hop songs (many of its entries turned out to be incorrect), and the now-defunct website Encyclopedia Breakannica brought the sample-spotting model online.
DJ Premier recorded a rant about this increased scrutiny on Gang Starr’s classic 1998 album Moment of Truth. “What’s the deal with you break record cats that’s puttin’ out all the original records that we sampled from and snitchin’ by putting us on the back of it, saying that we used stuff?” he asked on the outro to “Royalty.” “Stop doing that! Y’all are violatin’, straight up and down!”
It’s worth pointing out that two of the most fascinating hip-hop trends of the past few years—revivalist street-hop modelled on ’90s thug-rap and Donuts-style beat loops—center on a renewed zeal for the art of sampling. Despite the legal risks, some producers use samples freely, with little thought of consequences. “A lot of times, the artists on our roster either don’t remember where they got certain samples from, or just don’t even tell us they sampled,” Manak said. “Sometimes we find out after the fact, when we get that call from the artist who was sampled.” Other artists have taken to using sample-like audio loops crafted by instrumentalists and producers for the express purpose of licensing to hip-hop beatmakers.
Old heads might remember Mike Herard, vice president of A&R for Shady Records, as “Mike Heron,” a producer and co-owner of the excellent ’90s butter beats label Hydra Entertainment. “I’m old school, bro, I’m from the street culture,” he said. “It’s kind of like the ‘no snitching’ thing, right? I’m not with telling people stuff, especially if it’s going to get people sued.” Still, he acknowledges, “The beat culture is huge, and all these kids are communicating with each other. It’s very different than it was back when I was a kid.” Without a community of fans and producers talking about sampling online, trading tips and occasional sample sources, it’s possible that the culture Herard references would not be quite as vibrant.
Alapatt, who in 1999 scratched and cut on Count Bass D’s indie hit “Violatin’,” an homage to Premo’s Moment of Truth broadside about sample snitching, now says he doesn’t mind when fans talk about samples online. These days, he’s more concerned with convincing artists that it’s better to properly clear samples than hope you don’t get sued. Now that hip-hop is a dominant force in mainstream culture, rightsholders are generally more prepared to negotiate licensing deals, seeing sampling as a legitimate new revenue source for aging catalogs rather than an attempt to steal intellectual property. “It isn’t that expensive anymore. The days of punitive sample clearance fees because the people that represented the catalog didn’t like rap music or whatever—those days are pretty much gone,” Alapatt said.
Along with his current work as head of Now-Again Records and as a DJ, Alapatt also manages Madlib. He noted the producer’s work on the 2019 Freddie Gibbs collaborative album Bandana, for which he cleared nearly every sample (except for one instance, where “the guy was out to lunch”). “Listen to Bandana!” he said. “There’s tons of samples on it!”
Bandana was released by the RCA imprint Keep Cool, and presumably had more resources behind it for sample clearance than releases on small indie labels. Alapatt hopes for a day when U.S. rules about clearance are more formalized, with a provision that fees should be proportional to the sales of the record with the samples, so that smaller labels could afford to release sample-based albums in an above-board way. Until then, rightsholders will have the upper hand in any negotiation.
Still, even the anonymous label owner admits that it can be useful to make a proactive effort—and that fan chatter about sample sources can be helpful, depending on where you’re sitting. “I’ve been on the other side, where artists have sampled releases I’ve put out on my label, and I found out about it through WhoSampled,” he said. “Having been through it, I didn’t ask for anything crazy…I reached out to them and said, ‘You could’ve hit us up beforehand. We would have cleared it.’”
