DEAR MIDNIGHT SOCIETY,

Life advice, via Are You Afraid of the Dark (index) (random)

Dear Gary,

I am trapped for all eternity in a pinball machine, and the music is awesome.  It is a paragon of 80’s arcade music, and it has a delightfully sinister edge:

Now that I live in the machine, it plays every time I do something heroic or make an important discovery.  I have really begun to identify with it as the theme music of my life’s progress.  It’s practically a part of me.  Accordingly, I would like to include a sample of it on my debut rap single.  I think it’s going to be my big break.  Unfortunately, I have had no luck getting into contact with the pinball rightsholders—they appear to be fictitious (??)—and I think any further effort to get an official license for the sample will be futile.  Is this really necessary?

Yours,

Prisoner of Copyright

* * *

Dear Prisoner,

It is definitely necessary to license the sample.  Unfortunately, you are at the mercy of the sample’s copyright holders, and even if you were somehow able to contact them, they are under no obligation to grant or even acknowledge your request.

Given that you live in a pinball machine, I’m guessing you are attempting to release the single independently?  This will make licensing even more difficult, as the rightsholders are unlikely to see it as worth their time to negotiate with you.  Music licensing requires the informed judgment and cooperation of business experts, original artists, and lawyers—all with extremely different temperaments.  There’s no simple way to go about it, particularly as you are likely not in the position to offer a large up-front payment.  Again, I am assuming this because you live in a pinball machine.

You may be tempted go ahead and use the sample without permission in the hopes that the rightsholders simply do not hear.  However, this would put you in the unfortunate position of having to bet against your own success—which is pretty much fatal when it comes to launching a music career in this age of media saturation.  Moreover, in the event that your single does become successful, you can bet that the rightsholders will come out of the woodwork to collect.  If the single’s already taken off, this will place you in a very unfavorable negotiating position vis-à-vis the rightsholders, and they’re under no obligation to be kind.  And the fact that you’d have rescued the music from kitsch will help you less than you’d think.  Just ask one-hit wonders the Verve, who, subsequent to the international success of their single “Bittersweet Symphony,” were legally compelled to pass on 100% of their profits to bagillion-hit wonders the Rolling Stones, who were credited as songwriters for the single’s prominent orchestral sample.  This, despite the fact that the sample bore no real resemblance to any actual Rolling Stones song as performed by them and that the sample was, rather, rescued from a long out-of-print compilation of instrumental covers.  This occurred in Britain, of course, but American copyright works the same way.  And I know that “fair use” is a popular refrain among all sorts of independent artists, but the fact of the matter is that “fair use” is an incredibly risky defense.  There is very little positive precedent for “fair use” when it comes to the type of sampling you’re discussing, and even a winning “fair use” argument would nonetheless require you to incur substantial legal fees in defending.

So what do you do?  The philosophy justifying copyright’s laissez-faire approach to the complex problems associated with the licensing of music samples can be summarized rather simply: what doesn’t kill you makes you stronger.  Do something new.  Aren’t “new” and “creative” exactly the same thing?  Copyright promotes creativity.  You may say, “Well, Gary, aren’t all your creations pretty much rip-offs of stories that have been around for decades—and that’s when they’re not just superficial variations on Midnight Society tales from previous seasons?”  Well, yes, but do you really want to end up like me (or, more metafictionally, like show-runner Micheline Charest, whose notorious downfall was trumped only by the embarrassing nature of her untimely demise)?

Another option, then, is to recreate the “sound” of the music you’d like to sample without literally copying it.  Copyright law allows for stylistic similarity.  I mean, yes, given that this particular music literally soundtracks your life, the sample you’ve chosen may have a special resonance that cannot be matched.  The idea of “recreating” the sound may wholly defeat the purpose of using such a sound in first place, and it may, accordingly, deflate the foundational essence of your single.  But I think it’s time to grow up.  We can’t always get what we want, and it sounds like your rap career was doomed from the start anyway.  It is immensely difficult to launch a music career without extensive touring, and you are trapped in a pinball machine.

You shouldn’t have let the game play you.

Hope this helps,

Gary

  • 6 October 2012