7Mar/11166

Compliments Breed Confidence II

Beneficial, Thun, Versive, Kace, and even Hamza 21 had some interesting takes on the biting dilemma. Everyone has an idea about when mere influence turns into biting. Hamza 21 is a literalist. Hamza 21 feels that “biting is biting.” Versive and Kace feel that there is a difference between “totally jacking a line and re-working it to create something new.” Thun points out that there is an arbitrary standard that the peanut gallery fails to apply to certain artists.

Since this topic is so unsettled I figured we could go through some legal analysis. I know that laws are manmade and that they are not perfect.  I know some laws do not make sense.[1] But let’s give all our opinions a frame a reference by applying intellectual property law to our biting dialectic. Once again, I am not saying the law in this situation is right.[2] But maybe you will agree with it. And in future conversations you’ll have more than your opinion in this now-non-opinion-based conversation.

(BELOW IS NOT LEGAL ADVICE AND IT IS NEVER CERTAIN HOW COURTS WILL COME OUT ON THESE FACTORS)

According to intellectual property law, there are two broad elements of infringement.

Infringement is essentially “biting.” The first element is “actual reproduction,” in other words actual copying. The second element is an inquiry- was the protected material owned by the intellectual property owner? In other words was the bitten material owned by the person asserting biting (infringement)? In this part of the analysis Hamza 21 seems to be on point. Here, according to the law, “biting is biting.” But unlike Hamaza 21 and other “borked out super-conscious underground four Velamints of hop-hip types,”[3] the majority of people and law makers understood that if this were the end of the analysis science, progress, and the arts would be terribly underdeveloped.[4]

So, there is sometimes a defense to biting (infringement). The defense is called Fair Use.  There are 4 factors courts consider in determining whether the accused biter’s use is fair (not biting).

1. The court looks at the purpose and character of the use- Was the use of the work transformative or supplanting? In other words, is the accused biter’s work much different than the original work? Next, was the allegedly bitten work used for commercial use? The most ideal situation for an accused biter is for the work to be transformative and noncommercial, like these mix tapes for example: free, transformative, and really good.[5]

2. The courts look at the nature of the copyrighted work- Are we talking factual works or fictional works? Are they published or unpublished? Factual and published works are the best situation for the accused biter.

3. The courts look at the amount and substantiality of copying- Did the accused biter take more than necessary in terms of quality and quantity? Did the accused biter pay a licensing fee?

4. Effect of use on the potential market for the song (the most important factor) – Will the accused biters act potentially harm the market (present or future) for the original song writer’s work? For example, will fans no longer listen/buy Willie Hutch’s I Choose You, because UGK sampled the beat on the International Player’s Anthem? Probably not.

Quiz-  Now you do the analysis:

ANSWERS HERE!!!

— Droopy


[1] Why property transgressions are treated more severely than bestiality?

[2] But it holds more weight they your opinion.

[3] Thanks Thun!

[4] Article I §8 cl.8 of the Constitution

[5] Honestly, check these boys out, bound to blow up!

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166 Responses to “Compliments Breed Confidence II”

  1. versive says:

    Are you fucking serious with this kid?

    “But let’s give all our opinions a frame a reference by applying intellectual property law to our biting dialectic.” Yeah, let’s not.

  2. versive says:

    You’ll have to pardon my curtness, but I really don’t think this applies.

    I suppose that knowing the law would be useful in arguing with people who don’t listen to hip-hop (Do they still exist, better yet, does anyone still bother having these types of arguments with them?), but most hip-hop fans acknowledge that yes, hip-hop was founded on the re-purposing of other musicians’ works, and that it often times evolves within that paradigm.

    That said, having a legal defense for biting doesn’t mean its a respectable or exusable act. And at the same time, just because making something old out of something new could probably most often be covered by the fair use defense, that’s not why I think its ok. My feelings on this subject (and I suspect the feelings of most other hip-hop fans, no mattter what their stance is) have more to do with the artistic expression itself than the legality of said expression.

    • Droopy says:

      I appreciate the fact that you expanded on your first comment. Pardon accepted.

      I was not trying to say the law is right. I was simply adding another element that should be considered. Further, whether or not you and I agree with the law, it is the authority, so why shouldnt we be familiar with it? Maybe because hidding behind opinions feels safer?

      Whenever laws are brought up, people get defensive. Naturally I guess. I really wasnt trying to get that response. Essentially I agree with you, but I wanted to provide an additional perspective. Also, if you read and understood the law, you’d see that the law agrees with your opinion too.

      • versive says:

        Nah, as I said in my comment, “just because making something old out of something new could probably most often be covered by the fair use defense, that’s not why I think its ok.” I don’t care that the law agrees or disagrees with my opinion on this because either way it has nothing to do with my opinion. My opinion is based on my appreciation of music, not the legal issues. If you really wanted to talk about legal issues you should have written more extensively about how big law suits have affected how producers go about sampling.

        Detroit Murder Dog’s comment, while clearly a knee-jerk reaction, is something the people who run this blog should take into consideration. I have no problem with Thun’s detailed dissections of classic hip-hop songs/tropes/etc., in fact I enjoy most of them, but to say that coming to an understanding of the fair use defense and intellectual property rights will help inform the debate about on biting in hip-hop is a HUGE stretch.

        Please somebody else tell me if I’m wrong here.

        • Thun says:

          We can’t publish things that Versive is going to agree with 100% of the time.

          • versive says:

            Nor should you, but that doesn’t mean you should publish shit that is at best not well-supported and at worst totatlly unfounded.

            I disagreed with you on that Stakes is High critique, but that led to a pretty good discussion I think. This will not.

        • Droopy says:

          Stop looking for an adversary man. I see your point and I am not disagreeing with you.

          It may be a HUGE stretch, but I’d rather have an informed conversation than one based on your APPRECIATION for music (even though thats really sweet). I think it is fair to say that all of us here, appreciate music, but I’m not expecting you to take my word on anything based on my emotional feelings.

          Like I said, just trying to inform. If you’d like I will write something on how big lawsuits have affected sampling.

    • Thun says:

      You frequently make mention of what “the majority of hip hop fans” think or know. Like, too often.

      • versive says:

        Really? Off-hand I can’t think of another time I’ve done that. I’ll try to watch that from here on out.

        I bet you agree with me on this particular article though.

        • Thun says:

          I don’t even understand the argument you two are having, to be honest. Are you bickering about whether or not the article should have been published or whether it presents a cogent argument?

          As for biting, in my experience, people condone it from artists they LOOOOOOOOOOVE and talk about it like its the apocalypse when it is done by artists that make them cry by violating the sacred five Velamints. Also, most people who rant and rave about this particular issue seem to show a genuine lack of ability to discern between borrowing, paying homage, and straight jacking, and even fewer seem to have the capacity to realize that the boundaries are pretty damned blurry, letalone take into account the fact that hip hop itself is a reconstructed artform, pieced together from other genres in which borrowing and reappropriation figure signficantly.

          So basically, this is pretty much another “YO THE CONTRIVED SUB-GENRE I LOOOOOOOOOOOOOOOVE IS BETTER THAN THE TERRIBLE ONE YOU ESPOUSE” and nothing more. Another stagnant debate fueled more by emotional outburst and subrational sloganeering than honest discussion. I’ll pass.

  3. Is this blog serious or an art school in-joke? I once bookmarked this blog because it was about rap. Now it’s about being as needlessly fake-academic and pretentious as possible. Seriously, you’re not that smart and you sound like a fucking idiot.

  4. Thun says:

    “Nor should you, but that doesn’t mean you should publish shit that is at best not well-supported and at worst totatlly unfounded.”

    I don’t see how you’ve demonstrated that the article is either not well-supported or totally unfounded. Explain it to me like I’m in third grade and I don’t care about the Temple Of Hip Hop.

  5. versive says:

    Dude, please stop trying to paint me as some type of wannabe purist because I thought the KRS-One True Master album was good. It was. I like all different “subgenres” of hip-hop (though I find genrefication to be annoying and wouldn’t bother trying to parse shit like that) and never try to seriously claim that my opnion is more valid than anyone else’s. As far as music goes, if I don’t like something then I just say it’s not for me and move on… unless the artist in question is Mac Miller.

    To answer your question, it’s the matter of cogency. You really need me to point out evidence? Just look at the run down of the 4 points of Fair Use. The only references to hip-hop are some totally arbitrary (and questionable) mixtape shout-out in #1 and a reference to two songs that use the same sample in #4.

    I’ll grant that there are some parallels between legal infringement debate and the conversation about biting in hip-hop. But to use one to support an argument about the other is grasping at straws (even though Droopy’s legal analysis supports my stance, mind you). Also, if we’re going to talk legalities then why stop at Fair Use? Wouldn’t you be able to draw even more mostly coincidential parallels with a discussion of the evolution of copyright law over the past 30 years?

  6. Droopy says:

    Like I’ve been saying, I am not arguing anything. I figured the Copyright Act, The Constitution, and black letter law from the Supreme Court were pretty telling. But heres why I didnt provide more examples. The few I presented, were to explain harder to grasp legal concepts. I figured “factual content,” “published works,” and “quantity v. quality” were concepts that didnt need examples or further clarification. I have plenty of examples that I could have footnoted to explain these simple concepts.

    But, you offer good advice. In the future I will offer more examples and footnote more. Thank you.

  7. versive says:

    Sorry again about going off.

    • Thun says:

      Speaking for myself, I was only annoyed when you implied that there is some desperate need on our part to modify our editorial process to suit your particular opinions and tastes.

      I know that you didn’t mean that in such a literal sense, but lately around here there has been a spate of responses that imply just as much, suggesting both subtly and directly that TROY violates some kind of unwritten anti-intellectual Jansport-endorsed pact by publishing articles that attempt to engage in analysis.

      No writing is perfect, no argument is perfectly constructed, no opinion is so well-formed that it defies the need for revisitation and discussion. We do not write and publish pieces under the assumption that they are the last word on the subject. Anyone who writes an analytical essay does so with the risk that someone out there may not see things the same or might just consider the whole piece to be a waste of time. That does not mean that we are obligated to refrain from posting anything that is more substantial than an upload and a half-literate note that “DIS SHYTT IZ DOAP, YO! DOWNLOAD IT!”

      If the publication of analytical pieces on this blog irritates anyone to the extent that they cannot simply SKIP OVER such pieces (how hard is that?), I invite such people to simply unsubscribe or stop visiting. You are not doing us any favors by hanging around and suggesting that we’ve fallen off or need to change or just suck. Constructive critique is fine, and hell so is a little aggressive debate if it actually sticks to the topic. But this business of telling us what we should be doing, as if we are beholden to any visitor’s vision of the site, is ridiculous almost any way you look at it. For one thing — we’re not getting paid. We don’t need to have high traffic, hell we don’t actually have high traffic in the grand scheme of things, only in relation to niche old school blogs. Certainly not enough to treat this like a business that needs t meet client demands or sink. To say nothing of the fact that only a coward makes a cottage industry out of writing the safest, least controversial, least original, most replicated opinions, paid or unpaid.

      I can furnish a list of a few dozen old-school centered blogs that provide literally nothing in the way of analysis, many of which do not even suggest why the random rap they upload is worthy of a listen. There are also some that do bother with analysis but its the same bullshit we’ve heard since it was published in The Source circa 1992. If anyone feels that such websites are better suited for them, BOUNCE the fuck on over there and don’t look back. Let the subscriber count plummet for all I care. There are enough intelligent, open-minded, reasonable people reading and participating here that we do not need to pander to the LCD.

      This whole rant wasn’t directed towards you, Versive, but just to the ideas that were brought up in this thread, or things that this thread reminded me of, so take that for what its worth. Just getting something off my chest.

  8. versive says:

    All things considered, both of Droogy’s articles have sparked my interest enough to make me comment several times… so of course, keep doing what yall do. I rock a Samsonite anyway. Jansports are for teenagers.

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