You’ve probably heard some of the buzz around Girl Talk — the biomedical engineer-turned DJ whose sample-based music is making waves among hipsters, tastemakers and even the New York Times.

Girl Talk released his most recent album, Feed the Animals, in June 2008. On it, Gillis blatantly samples over 300 artists, demonstrating his uncanny ability to overlay music from traditionally isolated genres: metal riffs run alongside ’70s love songs and West Coast rap; today’s pop gets down with ’60s R&B and classic rock. With its hundreds of easily recognizable samples, the album is part parlor game, part love letter to three decades of popular music.

With tons of great reviews and a world tour underway, it would all seem to be rolling in Girl Talk’s favor. But there’s a big problem: Girl Talk didn’t clear any of the samples on the record. Under the current sample license clearance process, this album might be illegal.

According to most press accounts, Girl Talk and his label, the aptly named Illegal Art, believe that his work is legal under the fair use principle — a term in copyright law that recognizes that a copyrighted work can be used for “purposes such as criticism, comment, news reporting, teaching, scholarship, or research” without being considered infringing. “Because his samples are short, and his music sounds so little like the songs he takes from that it is unlikely to affect their sales,” it says in the New York Times article, “Gillis contends he should be covered under fair use.”

Whether Gillis’ and Illegal Art’s claim could withstand a court challenge of the fair use defense is a question, and one left for another day. Instead, let’s look at the sampling license clearance process itself. Most of the articles about Feed the Animals have glossed over exactly why clearing all the samples on this record would be so difficult. The current sample license clearance process is incredibly complex and contentious: artists who want to sample have concerns, while artists who are being sampled have other interests. Let’s dig in a bit and explain the complexity.

May I use it? The challenges of gaining permission

If Girl Talk had simply recorded an album of covers — faithful reproductions of complete songs — this blog post wouldn’t be necessary. As long as he paid royalties to the original composers, all would be swell. But under current copyright law, copyright owners maintain the right to say “yes” or “no” to derivative uses of their work. In other words, samples. So, to properly clear and license all the samples on Feed the Animals, Girl Talk would have had to first figure out who owns each copyright (which is a huge problem on its own), and then gained permission from both the sound recording copyright owner and the composer/publisher for each work he sampled. If you’re keeping track, that means he’d need about 600 green lights and zero stop signs.

It’s also important to recognize who owns most music copyrights. One would assume it’s the original performer/creator — and in some cases it is — but when artists sign major label contracts, they almost always turn over their copyrights to the record label. Faith No More singer Mike Patton was seemingly okay with Girl Talk’s use of a sample from their hit “Epic” alongside a ’90s rap vocal. “It’s an honor to collaborate with Busta Rhymes,” he said in a recent interview. However, Patton probably doesn’t own the copyright to the original major label recording, so his approval doesn’t have any bearing on the legality of the use. So, in Girl Talk’s case, we’re talking about seeking permission from 600-plus copyright owners.

But in the world of sampling and creativity, the moral and economic rights of the artists being sampled must also be considered. Say, for example, the original artist objects to the use of his/her creation in a manner to which s/he doesn’t agree — like in a song promoting racism. In most of the world, the artist maintains the “moral right” to say yes/no, even if s/he doesn’t own the copyrights. US copyright law doesn’t recognize moral rights, but an artist’s contract often includes a provision that allows her/him to maintain approval rights over types of uses.

While these contract provisions benefit artists by enabling them to retain some control over new uses of their work, for the artist that wants to clear a sample, this means that there’s potentially another structural barrier in the creative process: even if the copyright owner (record label) says yes, the artist may have a provision that allows her/him to veto the use.

And how much will it cost?

Assuming Girl Talk could a) figure out who owns the copyrights, and b) get all the permissions necessary, there’s another set of hurdles: the cost of licensing these samples. Each negotiation — and there would need to be at least 600 in his case — takes time, and prices can escalate very quickly, especially for samples of well-known artists or songs. (And these are exactly the types of tunes Girl Talk sampled on Feed the Animals.)

The sample license clearance process is primarily a set of private negotiations. Even though the process can be clumsy and inefficient, it ensures that the copyright owner and publisher can both set the price for the sample, and receive money for the license. It also means the original creator can share in the success of the new recordings that contains his/her original work. Indeed, in some cases, sample licenses have created an additional revenue stream for original recording artists, some of whose careers peaked decades ago.

In addition, if using a pre-recorded sample is cheaper than hiring flesh-and-bone musicians to play on the new recording, it could negatively impact the hiring and development of professional musicians.

But for the person who wants to clear a sample, the cost of licensing is extremely unpredictable and time consuming. The price can be based on such intangibles as an artist’s street credibility (on both sides of the transaction), existing negotiating history between publishers and managers and whether a sample will reinvigorate the back catalog of the sampled artist. In some cases the cost is simply untenable, with the copyright owner of the sample asking for hundreds of thousands of dollars per sample, or for percentages of sales royalties.

Given the cumulative effect of multiple expensive samples, one can see why the sample-laden albums like the Beastie Boys’ Paul’s Boutique or Public Enemy’s It Takes a Nation of Millions couldn’t be made today. It’s likely that even if Girl Talk had tried to clear the hundreds of samples he used, the time necessary and licensing fees would have sunk the project.

Creative solutions

Copyright law attempts to strike a balance between the rights of creators and the rights of users. But in the case of sampling, the users are also creators (whose interest is often at odds with the original creators), as well as the interests of the copyright owners (who are often not the creators). The sample license clearance process that has developed over the past 20 years has led to an ad hoc system that, while protecting the copyright owners, can be so complicated, inefficient and unpredictable that it inhibits the circulation and creation of these new works. When the system is too inefficient, or when the prices for samples are too high, nothing gets licensed, nothing new gets created, and both the sampler and the samplee lose.

Any successful balancing act — any determination of who gets what rights and receives compensation — must involve consultation with all the people with first-hand knowledge of the process and something at stake. Having already organized some panel discussions about sampling going back to 2003, FMC decided to interview people on every conceivable side of this issue.

Throughout 2006 and 2007, we talked to musicians who sample, musicians who have been sampled, and musicians who have been on both sides. We also spoke with music lawyers, industry executives, sample clearance professionals, public-interest group representatives, law professors, music historians, and journalists. The results of these interviews, and some possible remedies for the sampling license clearance process, will be released in a book — Creative License — co-authored by media professor Kembrew McLeod. Look for it via Duke University Press in fall 2009.

FMC is also curating a public conversation about sampling. In July 2008, FMC was at Pitchfork Festival with Public Enemy to talk about their landmark collage masterpiece, It Takes a Nation of Millions — which would certainly be impossible to re-create using today’s sample clearance process.

Next up is a panel discussion in New York City this fall. Date and venue are still being determined — keep your eyes on this space for details.

The sample clearance system is a microcosm of the music industry as a whole. During the past two decades, the disputes that have arisen over sampling implicate many issues of broad importance, such as creativity within economic and legal constraints, moral rights, artistic appropriation and sequential innovation, fair compensation for intellectual property, and even freedom of expression. It is tragic that some of the best-loved types of music will not or could not be made in the future. It would be equally tragic if the only solution to this problem were to further remove control from artists, who are often powerless to enforce or benefit from their rights without first — as a condition of getting into the major commercial pipeline — signing all their rights or percentages of them away in recording contracts.

By conducting these interviews and organizing these events, we hope to present the issues of sample clearance in a new and useful way. Ideally, a more informed, nuanced, and productive public discussion can result. Sampling, mash-ups, and collage are valuable musical practices, both financially and artistically, but the moral and financial rights of the original creators should also be considered. While there is no easy fix to the system’s deficiencies and challenges, understanding the strengths and weaknesses of the current sample license clearance process is the first step.