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Digital Sampling and Cultural Inequality

David Hesmondhalgh Social & Legal Studies 2006 15: 53 DOI: 10.1177/0964663906060973 The online version of this article can be found at: http://sls.sagepub.com/content/15/1/53

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DIGITAL SAMPLING AND CULTURAL INEQUALITY

DAVID HESMONDHALGH
The Open University, UK

ABSTRACT
This article brings together insights from legal studies with methods of analysis and areas of concern characteristic of media, cultural and music studies. My particular interest here is in how the uses of digital sampling by musicians, and legal practices surrounding these uses, affect how we might think about the issue of cultural borrowing, especially when white musicians borrow from black ones. This in turn throws light on the relationship between, on the one hand, music and copyright law and practice, and on the other, systemic forms of social and cultural inequality. While I agree that copyright law, in constructing digital sampling as unlawful without the permission of the originator of the sample, has tended not to encourage forms of creativity associated with African-Americans and other disempowered social groups (notably sample-based rap and hip hop music), I suggest that arguments for a generous fair use provision for sampling may not always favour the interests of musicians from less powerful social groups either. I do so by reviewing public debates and academic work about borrowing and appropriation in music, and by presenting a case study of one particularly notable recent example of digital sampling and cultural borrowing: the use by the international dance-pop superstar, Moby, of samples of African-American musicians on his album Play. Because these samples were drawn from recordings made by the archivist and collector Alan Lomax, this also raises issues germane to recent debates about the role of ethnomusicology and other scholarly activities in providing materials for cultural production.

KEY WORDS
copyright; cultural appropriation; digital sampling; fair use; musical borrowing; Moby

SOCIAL & LEGAL STUDIES Copyright 2006 SAGE Publications London, Thousand Oaks, CA and New Delhi, www.sagepublications.com 0964 6639, Vol. 15(1), 5375 DOI: 10.1177/0964663906060973

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ECENTLY, SCHOLARS from a variety of disciplines and perspectives have become increasingly interested in questioning the relationship between black musical practice and copyright law. All these scholars in one way or another focus on how assumptions about musical creativity embodied in western copyright law and practice may clash with the assumptions of musicians working in African-American and indigenous musical cultures (e.g. Seeger, 1992; Greene, 1999; McLeod, 2001). Many focus on digital sampling, for although sampling is used extremely widely across many popular music genres, including rock and pop, it forms a particularly important part of rap, where the recombination of sometimes-familiar sounds, especially but not exclusively rhythmic elements such as bass and percussion parts, is a crucial element of how musicians and audiences judge creativity. The conict between Anglo-American copyright law and sample-based rap music is obvious: the former protects what it calls original1 works against unauthorized copying (among other activities), whereas the latter involves copying from another work to produce a derivative product, raising issues of infringement of copyrights in both composition and sound recording. Henry Self (2002) has argued that the debate over the compatibility of digital sampling and copyright law is a manifestation of a broader tension between two very different perspectives on creativity: a print culture that is based on ideals of individual autonomy, commodication and capitalism; and a folk culture that emphasizes integration, reclamation and contribution to an intertextual, intergenerational discourse (p. 359).2 According to this view, copyright, intended as a means to promote the arts, is used to stie creativity, especially forms of creativity associated with marginalized social groups. Nonetheless, Thomas Porcello (1991) has suggested that rap and, by extension, sampling in general, have a tendency to undermine the notion of intellectual property embodied in copyright law. He argued that rap musicians have come to use the sampler in an oppositional manner which contests capitalist notions of public and private property by employing previously tabooed modes of citation (p. 82). For Schumacher (1995) too, sampling technology, especially in the context of rap, by so readily lending itself to the mixing of different voices in a musical text, implicitly challenged the concept of the singular artist as the only embodied voice in the text (p. 268), a concept upon which, in his view, copyright was reliant. Finally, and importantly, McLeods (2001: 145) more recent contribution to this debate argues that because samples generate new meanings that are distinct from their original meanings, they should be treated as a fair use of copyright material. Critics of copyright regimes and practices, then, have tended to be sympathetic to sampling, at least in the case of rap, and with good reason in my view. However, I want to explore some uses of sampling which might limit, for defenders of black cultural practice, the attractiveness of widening fair use provision. Sampling has continued in numerous settings apart from that of rap, and other studies have exposed a complex cultural politics around

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HESMONDHALGH: DIGITAL SAMPLING AND CULTURAL INEQUALITY 55 sampling that may have been submerged in the excitement accompanying the rise of sample-based rap and hip hop music. Of great signicance in this respect is a chapter by Steven Feld (2000a) which provides a tour-de-force case study of musical borrowing. Feld surveys the remarkable array of uses to which western musicians have put the music of the peoples of the equatorial forests of Central Africa, and especially the pygmy music of the Mbuti, Aka, and Binga peoples. An important portion of these uses involved digital sampling. For example, Feld traced the fate of a 1966 ethnomusicological recording by Simha Arom and Genevive Taurelle. This was a recording of a BaBanzl man playing a simple tune celebrating the return from the hunt. In the pan-Africanist political moment of the early 1970s, such ethnomusicological recordings of African music circulated among black musicians, and the tune was imitated (by blowing through a bottle) on Herbie Hancocks Watermelon Man on his album Headhunters in 1973. In 1994, Madonna and her producer Nellee Hopper sampled this section of Watermelon Man for her song Sanctuary from her album Bedtime Stories. Felds primary concern is with the way that sound recordings, split from their source through the chain of audio production, circulation, and consumption, stimulate and license renegotiations of identity (p. 263) and he borrows the term schizophonia to refer to this splitting (Feld, 1994). Felds claim is that the various stories of borrowing he gathers, including that of the Hancock sample used by Madonna, indicate an escalation of difference, power, control, ownership and authority (Feld, 2000a: 264). This, he says, politicizes the schizophonic practices artist could once claim more innocently as matters of inspiration, or as a purely artistic dialogue of imitation and inspiration (p. 264). Musical borrowing, in other words, is no longer an innocent practice.3 By connecting debates about digital sampling to debates about cultural borrowing and appropriation, Felds work therefore also complicates the sympathetic accounts of digital sampling that emerged from most of the early efforts to explain its use by rap artists. The study of musical borrowing and appropriation raises questions about the nature of specifically musical authorship (Born and Hesmondhalgh, 2000) for example, is musical creation from nothing possible and/or desirable? but it can also raise questions about the nature of representation and its relationships to questions of social and cultural power. Cultural exchange and crossfertilization can be pleasurable, and can suggest the possibilities of communicating across boundaries of social difference. But there may be a darker side to such practices. What does it mean, for example, to borrow from the cultures of more vulnerable social groups? What forms of accreditation and recompense are ethically desirable when engaging in such borrowing? These questions are important in any consideration of modern music, because for a variety of social and historical reasons, including the denial of literacy to slave populations, relatively dispossessed peoples have had a proportionately large influence on global popular music. This is most notably true of African-Americans, whose syncretic musics, from jazz to

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blues to soul to hip hop, have been the basis of the most globally disseminated sounds. There has been a long history of vernacular and journalistic discussion of the use by western and white musicians of musical styles associated with less powerful social groups. Did the rock-and-roll acts of the late 1950s rip off black music, or was their music a creative hybrid of black and white musical styles? Did Cream and other beat groups of the 1960s exploit blues musicians when they used the blues as the basis of their hard rock sound, or were they paying a respectful tribute, which drew the attention of wider audiences to that little-known musical tradition? These questions are closely bound up with the invidious position of African-Americans in the social relations of cultural production, and of course in US society more generally, but such concerns are clearly also relevant to the recording of music by indigenous people. In the 1980s and 1990s, debates about musical borrowing and appropriation shifted to the terrain of world music. Paul Simons 1986 album Graceland was a particularly important landmark, with its use of black South African and Southern US styles. Was Simon drawing attention to unjustly neglected musical work, or was he a colonialist exploiter of the musical raw materials of South Africa (Meintjes, 1990)? Such debates concerned not only the way that musicians used, credited and rewarded non-western musicians, they also extended to the motivations and fantasies of white/western audiences. What kinds of projections are involved in the appeal of non-western musics for western audiences? Are world music audiences the musical equivalent of tourists, who pass through a culture without really paying serious attention to the meanings of the experiences they consume? Felds articles, cited above, drew attention to the way that a variety of recordings, including those made by ethnomusicologists, can become incorporated in cultural commodities that generate huge revenues (see also Seeger, 1992). But Feld (2000a) also made important arguments about the way that recordings based on samples can provide representations of the sampled social groups. He argued in particular that, quite often, only a caricatured image (p. 273) survived the use by western musicians of the massive diversity of recordings made by ethnomusicologists: a single untexted vocalization or falsetto yodel, often hunting cries rather than songs or music pieces (p. 273). For Feld, the representational politics of the music involved were deeply dubious: This is the sonic cartoon of the diminutive person, the simple, intuitively vocal and essentially nonlinguistic child (p. 273). Felds work helps to show how digital sampling has added new dimensions to debates about musical borrowing and appropriation. First, digital sampling proliferates such acts of borrowing by making them much easier, in that musicians can transfer musical sounds from one recording to another through a few basic programming commands; though as we shall see, there are great complexities in gaining permission to do this for works that will be released to the public. Second, it involves a more direct form of borrowing of particular pieces of music, in that performances by non-white and nonwestern musicians can be incorporated directly into music made by white,

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HESMONDHALGH: DIGITAL SAMPLING AND CULTURAL INEQUALITY 57 western musicians, without ever having any verbal, face-to-face contact with the musicians performing the sampled extract. And third, as Felds anecdote about the Madonna sample of a pygmy musician suggests, it raises new issues about the way that copyright law and practice protect or fail to protect musicians from less powerful social groups. MOBYS PLAY In an earlier article, I analysed the practices and attitudes of musicians and record company staff at a small independent company, Nation Records, in relation to sampling from recordings of non-western music. I found that they brought a critical and anti-racist perspective to bear on their activities, and thought it acceptable to sample from these sources when this was done in what they saw as a sympathetic and supportive way (Hesmondhalgh, 2000). Despite this, my study, like Felds work, suggested that sampling makes unethical borrowing practices more likely in some contexts, and can risk propagating some highly problematic representations of the non-western musician. Here I explore these issues further via a case study of the use of samples on Mobys album Play (1999). This album of 18 tracks features a number of tracks that make use of African-American performers and styles. One track makes use of a sample from a more recent hip hop record, another of a 1943 gospel hit, and other tracks make use of live singers and choirs who perform in styles associated with African-American music (mainly gospel). The most signicant and commented-upon samples, however, are taken from eld recordings made by the musicologist and archivist Alan Lomax (19152002). Moby was apparently lent the 1993 Atlantic Records 4-CD compilation of Lomax recordings, Sounds of the South, by a friend (James, 2001: 166). Although the Lomax samples, as I shall call them in somewhat dubious shorthand, are the basis of a relatively small proportion of the tracks on Play (3 out of 18) they have been the subject of a vast majority of the commentary about the album. As the album grew to be a massive international hit and critical success (it was the Village Voices album of the year in 1999, and was reviewed glowingly in most music magazines), dozens of articles were published about Moby. Nearly all these articles give considerable prominence to the use of eld recordings. The albums impact on listeners seems to rely heavily on these samples too. If you mention the album to anyone, theres a good chance that theyll describe it in something like the following way: the one that samples old blues recordings. (In fact, as we shall see, this is not an accurate description of Play.) No less than Madonnas Sanctuary or some of the recordings released by Nation Records, Play raises questions about the way in which samples act as representations of musical traditions and of the peoples associated with them; and about why certain, highly partial, representations of these traditions and peoples are especially privileged in the musical and interpretative practices of the white western mainstream. The sampling practices fundamental to the

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albums success also demand consideration of how musical labour is credited and rewarded, and of the role of the copyright system in determining credit and reward. These issues, it need hardly be pointed out, are extremely acute when it comes to a white American singer, whose recordings are distributed by a multinational entertainment corporation, sampling the work of obscure African-American performers who received very little nancial compensation for their work. The further licensing of these tracks for use in commercial advertising only raises the political and economic stakes involved in such appropriative sampling still further. As in those other instances too, simple condemnations of the events and processes under study would be a mistake. There are ethical and aesthetic complexities involved here. Play echoes the cases of Pygmy Pop and of Nation Records in that many of the people and institutions involved in the album and in making the eld recordings it samples had good intentions. The musicians and staff at Nation were explicitly critical of racism and cultural inequality. The same is true of Moby and others involved in the story of Play. But as with the earlier case studies, we need to look at how Moby and others motives and intentions relate to the outcomes of their actions. I will divide my discussion of Play and its sampling into two main parts. In the rst, I outline the use Moby makes of the tracks in question, paying particular attention to the representational politics of the tracks through a textual analysis. Then I turn to issues of accreditation and compensation. Before proceeding with these two complementary forms of analysis, I want to draw attention to a signicant dimension of the case study, regarding how musical scholarship can become a resource in the creation and international circulation of culture. These are not issues of marginal interest: Alan Lomax may with some justication be described as the most famous ethnomusicologist of all time (see generally Cantwell, 1996), and he undoubtedly helped lay the basis of the folk revival of the 1960s and, equally importantly, the blues explosion of the same period. His death in 2002 sparked a heated debate about his legacy, some arguing that he deserved the credit for discovering Muddy Waters, Leadbelly and other blues legends (or, more accurately, introducing them to a white audience); others arguing that he failed to share the credit for these discoveries with his black collaborators, and that his dealings with the copyrights in the material he collected lacked transparency and frequently served his own interests (Marsh, 2002; Williams, 2003). My aim here is not primarily to intervene in those debates, though I do try to show that simplistic portrayals of Lomax as either hero or villain are not adequate. Rather, my main interest is in showing that in ethnomusicology as in entertainment, best intentions can have complex consequences, when they are tied into matrices of culture and capital, creativity and commerce. Scholarly activities such as collecting, notating and archiving play a role in constructing the very practices, traditions and peoples that they purport merely to describe. And since under western intellectual property laws these activities generate rights of ownership in whatever records are made (which include rights to sell such records), this ostensibly pure

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HESMONDHALGH: DIGITAL SAMPLING AND CULTURAL INEQUALITY 59 scholarship is also deeply implicated in the transfers of musical resources to which Feld has so usefully drawn attention. A study of Play allows further consideration of these matters. THE LOMAX SAMPLES AND THE POLITICS OF REPRESENTATION
HONEY

The importance of the samples from Lomaxs eld recordings for Play is clear from the fact that the album opens with two tracks based on such samples. The rst track is Honey, which is based on a loop of an extract from a recording of Bessie Jones and two other uncredited performers, made by Lomax in 1959 in the Georgia Sea Islands. The track is effective in building tension and expectation around the simple repetition of a sample. The track begins with the vocal sample (and handclapping) accompanied only by a staccato piano gure. On the second and third playing of the sample, a drum machine enters to give a sense of building movement. The drum part adds a beat from the fourth repetition, and on the sixth repeat, a guitar enters. But then one phrase of the vocal sample is repeated to disrupt the crescendo movement, and at 1:20 a wah wah guitar, often used to indicate a musical break, is introduced. This creates a tension which is partly broken at 1:43 when we return to the rst version of the vocal sample (accompanied only by staccato piano). A more complete release is signalled by a drum roll at 1:54 and provided by a much fuller drum track. A new backing vocal, possibly Mobys voice electronically distorted, then comes in at 2:12 to add to a sense of building excitement, which seems to carry a sexual undertow. But then a certain emotional complexity is provided by a melancholy synthesizer gure at 2:30 and then the re-introduction of the wah-wah guitar, this time playing a more complicated motif, at about 2:40. There is a sense of unity encoded here, in that most of the sounds previously heard separately on the track are now heard together this is the climax of the piece. A brief coda then returns us to the Bessie Jones sample, which ends the track. The lyrics are unclear, but the phrases my honey come back, Im going over there and of course the repeated some time of the backing vocal are discernible. I think this combination of words, however indistinct, would direct most listeners towards a sense that the track is in some way about the absence of the desired, the honey. The word jack is in there somewhere, possibly adding to a feeling that this is a vocal sample with a sexual element. In fact, the words are as follows: Until my honey comes back, Im going to rap that jack, get a hump in my back, Im going over here [or there]. I didnt decode these words, Moby quoted them in an interview (Harris, 2000). His gloss was as follows: While my boyfriends away, Im going to have sex with someone else until my back gives out. More broadly, Mobys interpretation of Honey is that it has a quality of sexual menace. Its kind of celebratory but theres a dark undercurrent to it. Whether or not the indelity and the

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potential back problems would be apparent even to those who managed to decode the lyrics, Mobys notion of celebratory with a dark undercurrent gets at the feel of the track quite articulately. Without consideration of the emotional work of the track, any analysis would be unfaithful to the aims of such dance-pop. Generically, tracks such as Honey work by combining a sense of rhythmic movement with an emotional edge which allows them to be consumed in the bedroom and living room as well as the dance club. But what distinguishes the track from other examples of the sub-genre of adult-oriented dance-pop is the vocal sample, including its distinctive handclap. The lo- quality of the voices, the heavily accented pronunciation, and the unfamiliar timbre, are all important here. Combined with the massive publicity work carried out by Moby and his record companies in drawing attention to the novelty of the blues samples, in my view, the foregrounded primitiveness of the sample helps generate a preferred reading of a distant voice speaking of a fundamental human experience of some kind, probably sexual, and certainly involving strong desire. In my view, we are not far from familiar representational terrain: the AfricanAmerican as more sexual than other social groups.

FIND MY BABY

The second track on Play, Find My Baby is based on a sample from Joe Lees Rock by Boy Blue (and Willie Jones). The structure of the track has similarities with that of Honey. A short vocal sample is repeated many times, and there is no verse and chorus, but rather the structure of the track is created by adding instruments, dropping them out and then reintroducing them. Here though, in contrast to Honey, the whole vocal sample is immediately discernible and this sets a mood straight away: Im gonna nd my baby [a hollered whoop here] before that sun go down. The aim, perhaps, is to pick up on the menace, which, as we have just seen, Moby sensed in the previous track, and to add to it. Its hard to avoid the sense that the singer is going to commit an act of violence once he nds his baby, and the holler adds to this. The intense repetition begins to add to this sense of menace. Here a great deal of the musical work on the track is done by an electric guitar played to imitate the sound of slide guitar. This instrumental texture has become irrevocably associated with southern sleaze, through its use in lm soundtracks (which are formidable ways in which the connotations of particular musical sounds, so difcult to pin down, are stabilized over time). Is it fanciful to think that Moby is drawing on the kinds of representations of black life in the American South which have become familiar to audiences through decades of ctional representation (The Color Purple springs to mind)? In Find My Baby, the violently misogynistic AfricanAmerican male is on the prowl.

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HESMONDHALGH: DIGITAL SAMPLING AND CULTURAL INEQUALITY 61

NATURAL BLUES

Moby has described how he aimed, in sequencing Play, to reproduce a quality he liked in albums he grew up with, where the slightly more energetic songs [were] at the beginning and the more subdued songs at the end. In the same interview, he also described how he aimed to differentiate his music from other contemporary music:
I think one of the reasons that Play has been successful is that its emotional and melodic, and theres a beautiful quality to it that a lot of contemporary music doesnt have. Most of the modern records that I buy are fun or funky or aggressive, but very few are beautiful. And I desperately aspire to making beautiful records. (Harris, 2000: 103)

A number of the early tracks on Play have a subdued feel to them. The aptly named third track, Porcelain, for example, attempts to echo the themes of personal fragility in the lyrics by the use of delicate piano and faint, distorted vocals. For many listeners, though, track 8, Natural Blues, provides one of the most powerful moments of sadness, and perhaps beauty, on the album. The track initially frames the sample in a way very similar to Honey and Find My Baby. An African-American female voice sings, Ooh lordy now, trouble so hard, ooh lordy now, trouble so hard, dont nobody know my troubles with God, dont nobody know my troubles with God. This is underpinned on the rst play by a synthesizer drone, but this is joined by a percussion track for the rst repeat, and then a piano backing on the third. Unlike Honey and Find My Baby, however, most of the rest of the original vocal performance is also included, and this produces a structure more like those to be found in conventional pop songs. Essentially, the structure of Natural Blues is chorus-verse-chorus-verse-break-chorus, with the chorus equivalent consisting of three or more repetitions of the lines quoted earlier. Like Honey and Find My Baby, the track ends by returning to the relatively unadorned presentation of the vocal sample with which the track began. The subject matter is only just audible in the verses but the fact that it deals with death marks it out from nearly all contemporary popular music. The singer takes a walk down the hill the other day, my soul got happy, and I stayed all day. She then visits her brothers house and nds him dead in his bed (whether this is a blood brother is unclear). The female voice, that of an Arkansas spiritual singer named Vera Hall, is only really clear at the beginning and the end of Natural Blues. When I have presented oral versions of this article and have played the original Lomax recording of Hall singing Trouble So Hard, audiences familiar and unfamiliar with the Moby version nd the Hall version very moving. This may be because a cappella performance has come to be associated with strong emotion, and it may also be because of certain sentimental misconceptions about the nature of the eld recordings (see later) but it is also, I think, because, when it is stripped of Mobys backing, the original allows us to hear Vera Halls powerful and very distinctive vocal textures and mannerisms. The

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intimacy of the recording combines with the grief expressed in the song very effectively. This intimacy is obscured in the cover version. But my interest here is less in comparing the quality of the two versions than in thinking about the way that Halls blackness is represented here. In my view, the very fact that her voice is foregrounded, then is covered by the instrumentation, only for her to re-emerge at the end, suggests a certain resilience, but also a sense of her historical remoteness. Moby almost seems to be presenting this voice to his listeners as one that contemporary listeners cant quite gain access to. (Unlike Bessie Jones and Boy Blue, the singers of the other two Lomax tracks, Hall is un-named on the album sleeve.) The problem is that the nature of the accompanying instrumentation and the fact that she isnt named on the album sleeve serve to add to that inaccessibility. While its a remarkable achievement to engage audiences with a song about death, the fact that this is sung by a dead and un-named African-American keeps death at a safe distance, some time in the past, in some other place. There is similar ambiguity in the way that the religious content of the song ts with Mobys own image as an out-and-proud Christian pop star. At one level, Natural Blues indicates Mobys skill at nding, identifying and foregrounding a wonderful performance by an obscure African-American singer from a very different time and place. Such curiosity about musical traditions generally ignored in the world of contemporary pop is admirable. And to some extent, Moby is fragmenting his own musical voice by bringing in the samples to speak in other tongues. However, these other voices become incorporated into Mobys own star persona; they become an element within the Moby brand. This is particularly true, I think, of the Christian elements of this track. Halls spiritual becames absorbed into the novelty of Mobys eccentric world view. Similar processes are at work in Track 11 on Play, Run On, which samples a 1943 gospel hit by Bill Landford and the Landfordaires, Run on for a Long Time. The message of Run on for a Long Time is that God is going to sort out those who indulge in hedonism. The very idea of a dance track which preaches such a ferocious religious message to its audience provides the novelty here. Were left to guess whether Moby endorses the sentiment, or whether he is merely presenting it for us to mull over. In his interview with John Harris (2000) in Q, he comments that it was supposed to be scary.4 There is no space here to analyse fully the way that the three tracks which draw on the Lomax samples t into the rest of Play. But the centrality of African-American voices is worth emphasizing. Although samples of eld recordings are used on only 3 out of 18 tracks, African-American voices are present elsewhere, and not just on Run On. The third track on Play, Porcelain, features vocals from Moby but with a sample, uncredited on the sleeve, of a voice which has the rhythm and texture we might associate with gospel or soul. The fourth track Why Does My Heart Feel So Bad? features a solo male vocal, which is credited on the sleeve to the Shining Light Gospel Choir. This is more than just a reection of the pervasive inuence of

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HESMONDHALGH: DIGITAL SAMPLING AND CULTURAL INEQUALITY 63 African-American music on pop music; at times the album almost seems to be about African-American music. Taken together, what semiotic work is being done by the AfricanAmerican elements in the tracks I have been discussing, based on samples of the Lomax eld recordings? The title of that last track, Natural Blues, in my view, provides a very strong hint. This, suggests the title, is a voice which is closer to nature, more deeply spiritual. The sample therefore functions in a similar way to the way that pygmy samples and inuences function in some of the examples discussed, as noted earlier, by Steven Feld. As with the uses discussed by Feld, there is an ambivalent appropriation of the perceived features of another culture. The samples pay tribute to that other culture, even celebrate it, but on terms which ultimately reduce the complexity of the appropriated culture to something crude and simplistic. However, the most striking aspect of the samples is the way they are contained within the star persona of Moby himself. There is something uneasy about the relationships between the sampled and the sampler in this situation, and this in my view partly emanates from the invisibility of the black performers. Moby is everywhere visible in the texts that proliferate around Play and the singles which were released to publicize it: the record sleeve, publicity photographs, live gigs, television broadcasts of his performances of the records. Meanwhile, the black artists are invisible, faceless representatives of spirituality. The samples become signs of a Moby product, distinguishing that product from other dance-pop products, while these dead black artists are reduced to a remoteness which echoes that of the Central African pygmies discussed by Feld. As with any textual analysis, my reading of these tracks begs the question of how audiences would read these songs. Journalism provides some evidence of how these tracks have been received, and certainly how they have been framed in publicity work. In line with Mobys New Age image, reviewers felt that the samples spoke of access to a deep spirituality. The Guardians Dave Simpson (1999), for example commented that suffering, thoughtfulness and nally redemption are revealed. Many writers discussed how the album combined the ancient and the modern, the primitive and the futuristic. John Harris (2000), in Q magazine, was typical. Harris wrote that Plays trump card is the collision of a very modern kind of music with the very embodiment of folksy authenticity. That the people sampled are probably long dead only heightens the albums disembodied spookiness. Disembodied is a good choice of word here. The black performers are without bodies, without substance in the Play intertext, whereas Mobys image is everywhere. In the same Q article, there are 14 images of Moby in a variety of settings and outts (including one in which he wears only a very long and conveniently placed sock).

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SOCIAL & LEGAL STUDIES 15(1) EXTRA-TEXTUAL WORK: ACCREDITATION AND RECOMPENSE

I hope to have shown in the above analysis that the Lomax samples are central to Play, and that they are used in a way that resonates with more general representations of African-Americans. It is worth emphasizing this point. This is in contrast to the way in which samples have been used in hip-hop and in rap-inuenced musical styles, where very short bursts of music, such as a drum pattern or a bass guitar motif, are used, often looped to form a rhythmic basis for the track. In the case of Moby, the songs are almost about the samples. This is accentuated by the fact that the rst two tracks have titles derived from the samples used. But what about the politics of cultural production and dissemination involved in the album? How has the industrial apparatus around Play credited and compensated the musicians and musical traditions involved? We might begin with the gure to whom the album is attributed: Moby. Play has turned Moby from a moderately successful dance-pop-rock artist into an international superstar, largely on the basis of his use of the Jones, Boy Blue and Hall samples. To what extent has Moby acknowledged the musical traditions and performers he samples? There is no doubt that Mobys use of the Jones, Boy Blue and Hall samples has raised interest in these performers and the traditions they were working within. Indeed, through a strange intertextual twist, Mobys use of these performers has provided them with considerable posthumous celebrity. One of the most interesting and perhaps unexpected repercussions of digital sampling has been the rise of a small subgenre of compilation albums devoted to making available tracks which have been sampled by contemporary musicians. The rst CD in the Virgin Records series Sampled begins with the Bessie Jones track and this reects the widespread interest in the originals, once Mobys versions became well known, mainly through their use in advertising, in the year 2000. A compilation album entitled Natural Blues was released that year containing the three original tracks recorded by Lomax, with the various performers named. Enter the names of Vera Hall and Bessie Jones into a good search engine and you will nd a number of references to both singers, including databases of the use of their voices in advertising, archiving projects devoted to them, and encyclopedia entries which, in at least some cases, might not have been written had Hall and Jones not appeared on Play. Both singers have achieved a renown they could surely never have imagined. Boy Blue, whose real name was Roland Hayes, seems to have missed out on such historical recovery, probably because he seems to have had a short career in music, whereas both Hall and Jones were very active in music making for much of their lives. But his assumed name is known to tens of thousands, if not millions. Yet the new fame of this trio is surely bittersweet. The fact that such musicians owe their posthumous celebrity to white liberals such as Moby, or indeed to white radicals such as Alan Lomax, is a symptom of racial and cultural inequality, more than their fame itself is a challenge to such power differences. It is striking that, on the sleeve of Play, the Lomaxes receive

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HESMONDHALGH: DIGITAL SAMPLING AND CULTURAL INEQUALITY 65 considerably greater credit than the artists they recorded. In small print on the rst page of the CD sleeve for Play, Moby thanks the Lomaxes and all of the archivists and music historians whose eld recordings made this record possible. The sleeve to Play credits only two of the performers involved, Bessie Jones and Boy Blue. Even they are credited only in the standard form required for sample clearance. Vera Hall goes completely un-named, and it isnt clear why. My understanding is that the copyright on all three recordings is held by the same company, Warners, so why they would have different requirements for accreditation is difcult to gure. It may be simply that in a large company with huge numbers of copyright clearances taking place on a daily basis, the request for a credit wasnt made. The paucity of the recognition granted to these performers is all the more striking given that Moby devotes hundreds of words on the CD sleeve of Play to his thoughts on fundamentalism, the treatment of prisoners, veganism, despotic regimes and on Christians who support the use of violence. And Moby has only very occasionally cited in interviews where he found the samples (as mentioned earlier, Atlantics 1993 compilation of Lomax recordings, Sounds of the South). The various interviews with Moby contain very little reection by him on the singers or on the Lomaxes, or on the musical traditions involved. In fact, he has been very open about his lack of interest in these traditions: I wasnt so much attracted to the traditional context. When they were recorded and the cultural tradition they reected didnt interest me as much as the emotional qualities of the vocals on each record (quoted by Gee, 2000). We might also reect on the recognition of musical traditions. Various misconceptions have been circulated about the music that Moby uses on Play, and how that music came to its audience, misconceptions which Moby has done very little to correct. One important misunderstanding is that the samples used are blues recordings (Brend, 2000; Harris, 2000). In fact, Vera Halls Trouble So Hard is a spiritual, and Bessie Joness Sometimes is more like a play song derived from African forms. Only Boy Blues Joe Lees Rock can really be thought of as having a blues form. Such distinctions might seem pedantic but I think they are indicative of a lost opportunity to develop awareness among contemporary music audiences about musical traditions and the social conditions that produce them. Another misconception is that the original tracks are older than they actually are. Most articles and reviews attribute the samples to the 1930s and 1940s (see Simpson, 1999; Madden, 2000). The writers of such pieces have perhaps been confused by Plays tribute to the Lomaxes, plural, and by Mobys own references in interviews. The following quotation from Moby is typical of the way in which he has attributed the recordings: The indigenous recordings were made by a folk historian called Alan Lomax who, along with his father [John], amassed a huge catalogue of them from the early part of the 20th century (cited in Barr, 2000). The Lomaxes travelled together making recordings in the 1930s and 1940s, but the samples used on Play were all recorded during Lomax juniors trip

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to the US South in 1959. The effect of the mistake is to make the recordings seem more ancient and distant than they really are, and to justify the anonymity of the performers. Bessie Jones, it is worth pointing out, was still an active performer in the 1970s. And these were not musicians who lived their life in obscurity. Jones was a very prominent exponent of the music of the Georgia Sea Islands, which has been of great interest to ethnomusicologists because of its very high levels of retention of African musical forms.5 Hall performed spirituals at New Yorks prestigious venue, Carnegie Hall. My favourite misconception surrounding the Lomax samples comes from a review of one of the aforementioned compilations of sampled originals, Natural Blues, in Uncut magazine in August 2000: We get Vera Halls chillingly powerful original of Trouble So Hard . . . recorded in a eld by Alan John Lomax [sic] in the 1930s . . . . The misunderstanding of the term eld recording here suggests that this journalist was unable to move beyond certain images of black life in the South. While such misunderstandings cant directly be blamed on Moby, he has done little to provide the kind of information that would temper such ignorance. This is in contrast to musicians such as the Rolling Stones and the Animals in the 1960s, who worked to raise awareness of the musics they were borrowing from, and their histories. What about compensation? Bessie Jones died in 1984, Vera Hall in 1964, and it seems likely that Roland Hayes (Boy Blue) died in a car crash not long after Lomax recorded him in 1959 (Leiby, 2000). How much money will go to the estates of the now-dead performers? The small print on the CD sleeve provides one way into investigating this issue. This is how Jones and Boy Blue are credited on the sleeve.
Honey: features samples from the Bessie Jones recording Sometimes, produced under license from Atlantic Recording Corp. By arrangement with Warner Special Products. Find My Baby: features samples from the Boy Blue recording Joe Lees Rock, produced under license from Atlantic Recording Corporation. By arrangement with Warner Special Products.

Atlantic was the record company that issued the CD box-set of Lomax recordings, Sounds of the South, in 1993. Sounds of the South was also the title of an Atlantic Records Lomax LP compilation from 1960. In fact, Atlantic provided funding for Lomaxs 1959 trip to the US South, where he revisited many of the places where he had made recordings with his father during the 1930s, this time with much better equipment. At the time, Atlantic was an independent record label run by two entrepreneurs with a deep love and appreciation of rhythm and blues, Ahmet Ertegun and Jerry Wexler. Their company became part of Warner Bros in the late 1960s as part of a series of mergers and acquisitions, and eventually was merged into WEA (Warner-Elektra-Atlantic). The parent company of Atlantic in its various forms has changed over the years, but since 1999, the Atlantic brand name

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HESMONDHALGH: DIGITAL SAMPLING AND CULTURAL INEQUALITY 67 and the various intellectual property rights belonging to it have been part of Warner Music Group, which is owned by the AOL Time Warner conglomerate. The publishing rights were held by the famous publishing company Chappell and Company, which also became part of AOL Time Warner, again through a series of mergers and acquisitions. Warner Special Products, as referred to in the sleeve notes quoted earlier, is the section of AOL Time Warner that will usually deal with requests for the licensing of recordings. Lomaxs recordings were carried out in the spirit of folkloristics, of preserving for posterity the cultural heritage of the USA, and his work with Atlantic represented a left-liberal alliance. Many of the recordings are still available today (on licence) on the independent folk label, Rounder Records. Through mergers and acquisitions, however, signicant portions of the rights in the recordings he made passed into the hands of the most powerful corporations in the cultural industries. In order to investigate issues of compensation, it is important to understand how clearances for the Lomax samples would have been obtained. There are generally two copyrights in every recording of music: the copyright in the sound recording and the copyright in the composition that is recorded. In the USA, for example, copyright in the composition is held by the composer, whereas copyright in the sound recording is held by the person or persons who produce the xation of . . . musical . . . sounds that constitutes a sound recording as a matter of law.6 This is generally understood by commentators on US copyright law to mean that, in the absence of a contract of employment or assignment vesting the copyright in some other natural or legal person, the performers, recording engineers and record company will be the rst owners, jointly, of copyright in a sound recording because together they produce the xation (Abramson, 1999). Federal copyright protection for sound recordings, as opposed to compositions, came into force in the USA for the rst time in 1971.7 Sound recordings xed before 15 February 1972 the effective date of the amending legislation might, however, have continued to be protected under state common law regimes of copyright, unfair competition, misappropriation or unjust enrichment, or by criminal anti-piracy statutes enacted by state legislatures, until 15 February 2067. Because the Lomax recordings were made in 1959, Atlantic Records title to any copyright in them presumably therefore depends on state law, unless the box-set reissue of 1993 effectively constituted a new sound recording for legal purposes, attracting a federal copyright in itself. However, I have been unable to conrm this with the Alan Lomax archive. (For an overview of the complicated legal position in the USA regarding pre1972 recordings, see Capitol Records v Naxos (2005).) Moby is signed to Mute Records in the UK and Europe, and to V2 in the USA and Canada. V2 and/or Mute will probably have written to Warner Special Products to clear the way for use of the recordings as samples. For uses of short, relatively insignicant passages and/or the use of less wellknown songs, a at fee will usually be charged by both the record company which owns the copyright in the sound recording and the publisher which

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owns the copyright in the composition. One source quotes a range of US$1500 to US$5000 for such at fees (Passman, 1998), though this is sometimes much higher. Warners charge would depend upon their assessment of the likely commercial success of Play. They are unlikely to have predicted the huge success it became, which means that Moby may have managed to clear these samples for a relatively low fee. On the other hand, the various parties may have negotiated a deal whereby Warner would receive a percentage of the revenues from the tracks, in which case the rewards from their ownership of the Lomax recordings would be considerable. Copyrights in musical compositions, as opposed to recordings, are generally held by music publishers and referred to in the industry as publishing rights. In the case of the particular tracks sampled by Moby, payments in return for licences of these rights were negotiated with, and collected by, Warner Chappell. The Alan Lomax Estate and the estates of the performers, in their roles as composers, were paid by Warner-Chappell. Again, it is worth asking how Lomax came to be regarded as entitled to any payment at all in respect of the compositions. As has been shown, his role in relation to the sampled material was that he recorded it: he had no role in composing it. If the performers composed the material they performed, then they owned the copyright in it outright, not jointly with Lomax. The evidence suggests that Lomax himself regarded the performers as the composers of the songs they performed, but that he persuaded them to enter into a contract with him under which they each assigned to him a share of what would otherwise have been their solely owned copyright. There has been a long history of black musicians signing unconscionable contracts, often with white entrepreneurs, during much of the 20th century (Greene, 1999), and while it would be totally unjustied to describe Lomaxs relations with the black musicians he recorded as exploitative or unconscionable, it would add further fuel to recent controversies surrounding Alan Lomaxs role in modern music history if he were perceived retrospectively to have claimed composition rights in songs that he did not have any role in composing, even if this was a prevalent practice in recording at the time, and even if this joint composition credit was freely assented to by the musicians, in return for Lomaxs undertaking to arrange for their music to reach a wider audience. Lomax may have thought that he was trying to help black musicians through a legal mineeld, and given the racism of the time, that his name would add legitimacy to their copyright claims. This might be especially the case where there might be ambiguity about whether songs come from the public domain, or whether a particular musician might claim copyright on the basis of having arranged and adapted musical and lyrical motifs that are in common circulation.8 It is at least questionable, then, what interest (if any) the Alan Lomax archive had in the outcome of the negotiations between Little Idiot, Mobys publishing company, and Warner Chappell, for licences to use the compositions Alan Lomax had recorded. What then was the outcome of those negotiations (Little Idiot is part of Warner Chappell, so these negotiations were effectively in house)? In other words, what were the terms of Little Idiots

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HESMONDHALGH: DIGITAL SAMPLING AND CULTURAL INEQUALITY 69 agreement with Warner Chappell? Since this agreement remains condential, it is only possible to speculate. In cases of very signicant usage (and as we saw above, Mobys use of the samples most denitely falls into this category), the publisher owning the copyright in the composition (the licensor) will usually require a percentage share of the users (the licensees) income from the track(s) incorporating the sample(s), rather than a at fee. This share can be as high as 100 per cent in cases where the song based on the sample is deemed to rely very heavily for its effect on the sample, but the standard fee would tend to be in the region of 2050 per cent. Depending on the publishing companys agreement with the composer of the sampled music, and/or its usual business practices, the publisher may demand a writing credit for the composer. However, if a small company requires immediate payment, and does not anticipate many sales, it may ask for a at fee rather than a percentage. How much money will have gone to the estates of Jones, Boy Blue and Hall from the rights to the composition will thus depend on three factors. The rst is the at rate or percentage negotiated by Warner Chappell with Little Idiot when they agreed to issue licences permitting use of the compositions by Moby. The second factor is the contract that the estates of the composers have with their various publishing companies (the Lomax archive represents only the estate of Bessie Jones): normally, songwriters get more than 60 per cent of the money received by the publishers.9 A third and crucial factor in determining how much money will go to the estates of the performers is the nature of the arrangements Warner Chappell (acting on behalf of the Lomax Estate) made with Little Idiot, Mobys publishing company, concerning the further licensing of Mobys tracks for use in other media, most notably advertisements, lms and television programmes. Needless to say, this has become an increasingly important issue in recent decades with the proliferation of media outlets using music, but the issue of further licensing is particularly signicant in the case of the Moby tracks under discussion, because Mobys willingness to license his tracks has become something of a talking point in the music business. Over 400 licences have been granted to use tracks from the album for advertising campaigns, including campaigns for Renault, Adidas and Microsoft. The Lomax samples have featured heavily in these campaigns. Moby and the Lomax archive have been keen to maintain good relations with each other, and the Lomax estate will have received considerable money in mechanical royalties (i.e. royalties based on sales of Play) and royalties for licences to use tracks from Play in advertisements, lm soundtracks, and so forth.10 However, negotiations between Warner-Atlantic, Mute/V2 and Little Idiot over the use of tracks from Play in other recordings, such as compilation albums, had still not been resolved at the time of writing. Anna Chairetakis Lomax, Alan Lomaxs daughter, who is Director of the Alan Lomax archive (Lomax himself died in 2002) was quoted in 2000 as saying: Im perplexed. Id be surprised if [Moby, his record company, and his lawyers] didnt want to share in their good fortune with Alan and the performers . . .

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I feel very strongly that the artists should get something out of it or their heirs, wherever they are (Leiby, 2000). At the time of writing, lawyers for both the Lomax archive and Moby are trying to resolve the situation harmoniously, and out of court.11 The Lomax archive has been extremely active in attempting to trace the heirs of the performers. They have traced Bessie Joness two sons and deal directly with them in distributing the royalties due to them.12 The descendants of Boy Blue have a deal with another publishing company. The saddest case is that of Vera Hall. The archive has traced Halls grandson, but a woman who is in charge of Halls probate is receiving all the funds accrued by Halls work. The nancial stakes involved here become clear when the case of the Lomax recording used in the Coen brothers lm O Brother Where Art Thou? is considered. In 1959, Lomax recorded some prisoners singing the traditional song Po Lazarus. The main vocal was sung by a convict called James Carter. In 2001, following the great success of the O Brother soundtrack and the reasonable success of the lm itself, the archive was able to provide James Carter with a cheque for US$20,000 and this was only the rst of a number of ongoing payments. This indicates once again that any account of Lomax as exploiting black musicians is misplaced. Lomax emerges as a contradictory gure, with good intentions, clearly carried on by the staff working at the archive established in his name, but also as someone whose business dealings are not retrospectively transparent. To summarize this discussion of payment for the samples used on Play: AOL Time Warner will have received considerable sums through its ownership of the recordings and the publishing rights; the Lomax estate (and therefore the archive it supports) will have received considerable money from Lomaxs stake in the publishing rights; the estates of two of the performers should have received considerable money, one of them via the Lomax estate; and of course by far the biggest share will have gone to Moby and his record companies. It is impossible not to wonder, though, whether the share going to the black performers estates reects the huge contribution their work makes to the aesthetic impact of the tracks. LOVE AND THEFT IN THE AGE OF DIGITAL MINSTRELSY Mobys use of samples of African-American music invokes a long tradition of debate about the role of African-American musical culture in the recording industry. There is a complex dialectic in the history of white borrowings of black culture, a history of homage and exploitation, of love and theft, in the title of Eric Lotts (1993) book on the history of minstrelsy. The passionate embrace of black music by white youth throughout the 20th century, and into the 21st, cannot altogether be dismissed as assimilation. In some cases, of course, as Paul Gilroy (1993) has pointed out, enjoying black music can co-exist with hating black people. But the infatuation with black music on the part of white musicians and audiences has also at times represented an

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HESMONDHALGH: DIGITAL SAMPLING AND CULTURAL INEQUALITY 71 effort to move beyond the connes of various social contexts, both emotionally, by embracing forms of music that allow for the expression of overpowering feelings of frustration and constraint, and politically, by imagining a life based on more communal principles. This can often involve both solidarity and unacceptable projection. Both these processes are apparent on Play. There is an effort to validate black musical traditions, and Moby at least invokes those traditions, if only occasionally, in interviews and according to his record companys press ofce13 in live performance. At the 2001 Grammy Awards ceremony, Moby performed Natural Blues with nu-soul star Jill Scott singing the Vera Hall part. Yet Mobys use of the samples draws on dubious forms of representation of African-Americans. I have consulted dozens of articles about Moby in researching this article. Yet I have found only one piece that included explicit criticism of the aesthetic and production politics involved in Play. Occasionally, and usually in passing, Moby has been asked in interview about the political implications of his use of the samples. For an intelligent and articulate man, his responses have been at times disappointingly complacent:
The real litmus test for me was at the MTV Music Awards. I met [AfricanAmerican comedian] Chris Rock and if anyone was going to skewer me for sampling African-American vocals from the early 20th century, it would be him, and he told me how much he loved the record. (Cited in Scheerer, 2000)

Perhaps the point is that we can enjoy some aspects of the music, but recognize that there are some representational issues that even Chris Rock might miss. What does all this tell us about the cultural politics of digital sampling and the legal structures and practices surrounding this type of musical activity? I think the case of Mobys Play shows how sampling has raised the representational and economic stakes involved in the borrowing and appropriation of cultural artefacts and traditions. Sampling does so primarily because it facilitates the direct borrowing, rather than imitation and adoption, of actual performances. I have divided my discussion of this into two realms: the textual and aesthetic; and the political-economic and institutional. Some closing remarks on each of these areas are in order. When the Rolling Stones imitated a blues guitar sound made well-known by Muddy Waters, they were invoking meaning via the familiarity of listeners with pre-existing blues records, and possibly knowledge of Muddy Waters distinctive style. But if the Rolling Stones had actually been able to sample Muddy Waters, then this would have involved a process more like the incorporation of visual clips into a television programme, where the meaning depends more on a direct resemblance of the musical sign to a referent. Semiotics would describe this as a shift from indexical signication (where meaning is based on some direct, if conventional, relationship between the sign and the referent) towards iconic signication (where the meaning is based on direct resemblance). This does not in itself bias the technology itself

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towards politically regressive uses. Yet somehow many recent uses of sampling come close to providing the equivalent of aural stereotypes. I think this is because we have become accustomed over 30 years of discussing the visual politics of representation, but discussions of aural representation are remarkably underdeveloped. The political-economic and institutional processes involved in Play should give some cause for concern among those concerned with how social inequality is refracted in the realm of cultural production. In some cases, as we have seen, samples of non-western music have gone uncleared in a way that would be almost unthinkable for the use of music produced in advanced industrial countries. There is no question of such dirty dealing in the case of Play. The album has, it seems likely, made the estates of Bessie Jones, Boy Blue and Vera Hall wealthy, and has brought unimaginable attention to the work of these artists. But there are important questions to be asked about whether these rewards match the importance of the contributions of these performers to the tracks on Mobys Play. It is unlikely that a living musician, working in the studio, contributing a vocal that is as central to a track as is Vera Halls performance in Natural Blues, would receive no payment for their contribution, though of course there are countless examples of musicians being ripped off by the royalty system. How much the descendants of these performers receive is unclear, because of the condentiality of the various contracts, practices and negotiations involved. In terms of accreditation, Jones, Boy Blue and Hall have achieved some posthumous fame, but more could have been done by Moby and those around him to promote greater awareness of these performers and the musical traditions they draw upon. Accreditation is a vital part of the ethics of these cases. My argument is not that the overall impact of the digital sampler has been negative or regressive. Some uses could indeed, as Porcello (1991), Schumacher (1995), Vaidhyanathan (2001) and others suggest, contribute to a rethinking of copyright law which does not rely on a notion of cultural work as based entirely on original authorial initiative, but which acknowledges the fact that creativity is social (Toynbee, 2001): not only in the sense that it is often complex and collaborative but also in the sense that the creation of all texts owes a great deal to other texts already in circulation. However, such a contribution to reassessing copyright law would rely on activism and argument in the relevant public policy arenas. The technology itself will not do the work of reform. Rather than criticize digital sampling, my aim has been to point out some of the potential problems involving inadequate protection for sampled musicians. These problems would presumably be exacerbated by signicantly widening the fair use provision to cover all, or nearly, all uses of digital sampling. This complicates the view that fair use provision should be massively extended, in order to encourage creativity. On this basis, the estates of the black musicians sampled by Moby would have received nothing. But current law and practice as regards sampling is nevertheless vulnerable to the criticisms I outlined at the beginning of this piece.

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HESMONDHALGH: DIGITAL SAMPLING AND CULTURAL INEQUALITY 73 I suggest that when recordings rely as enormously for their impacts on sampling other musics as do the cases discussed earlier, musicians and others in the music business should consider two sets of options. First, full and prominent credit should be given to the sampled musicians and the musical traditions to which they belong, giving indications of the cultural sources of the music, instead of mystifying the origin of the track in interviews and elsewhere (such as the misleading title Natural Blues). This would not require academic notes, merely some basic research. Second, musicians should make strenuous efforts to establish ways of recompensing musicians, their descendants, or representative organizations. Such measures would at least begin to address some of the problems surrounding digital sampling under present copyright regimes.

NOTES
My thanks to Don Fleming, of the Alan Lomax Archive in New York City, and to Anne Barron for her wonderful editorial input. The remaining faults are my responsibility. Thanks too to Dave Laing, Andy Linehan, Goffredo Plastido and Jason Toynbee for help and advice, and to audiences at the Open University, the University of Auckland, University of Chicago, and Curtin Institute of Technology for comments. 1. 2. See Copyright Designs and Patents Act 1988 (UK): s. 1; and Copyright Act 1976 (US) 1976: s. 102. Thus for Self, copyright laws proscription of sampling is signicant chiey because it ignores the cultural dimensions of rap/hip hop, a musical genre which in the eyes and ears of many, owes its tendency to sample, borrow and rejuxtapose sounds to the tradition in African-American culture of borrowing and recombining snippets of older stories, songs and so on, a process known in vernacular African-American English as signifyin (Gates, 1988). Feld (2000b) has pursued these issues further in a case study of the sampling of ethnomusicological recordings. Like nearly all Mobys publicity interviews, this interview (Harris, 2000) raises no critical questions about his use of the Lomax samples. See, for example, the reference to her in the work of leading blues scholar Paul Oliver (1984: 7). Copyright Act 1976 (US): s. 101. Sound Recording Amendment Act 1971 (US), amending the Copyright Act 1909 (US). I wrote to the Alan Lomax archive twice to pursue these questions, but received no answer (after initial help on other aspects of this article). In fact, whether Jones, Blue and Hall are composers is an interesting point. For example, the 1960 album Sounds of the South credits Trouble So Hard as trad, arr. Hall. Nevertheless, a new arrangement of an existing composition is itself an original composition if materially different from the underlying work, so Hall would in these circumstances be regarded in law as the author of her arrangement. The Lomax estate, since Lomaxs death, receives royalties due to Lomax; the archive acts as an organization representing the interests of Lomax and the black musicians he recorded.

3. 4. 5. 6. 7. 8. 9.

10.

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11. 12.

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This information comes from personal correspondence with Don Fleming, of the Alan Lomax archive in New York City. This indicates that the archive acts as the publisher of Joness recordings for Lomax, whereas they do not act in that capacity for Boy Blue or Vera Hall. Nevertheless, the rewarding of a joint composition credit is still controversial, as this is a separate issue from any publishing contract. Personal communication by phone with author, June 2001.

13.

CASES CITED
Capitol Records v Naxos (Court of Appeals for the Second Circuit, unreported, 5 April 2005)

REFERENCES
Abramson, Christopher D. (1999) Digital Sampling and the Recording Musician: A Proposal for Legislative Protection, New York University Law Review 74: 166095. Barr, Gordon (2000) Nothing Wrong as Moby Raves On, Newcastle Evening Chronicle, 24 February. Born, Georgina and David Hesmondhalgh (eds) (2000) Western Music and Its Others: Difference, Appropriation and Representation in Music. Berkeley, CA: University of California Press. Brend, Mark (2000) Clever Dick, Record Collector, September. Cantwell, Robert (1996) When We Were Good: The Folk Revival. Harvard, MA: Harvard University Press. Feld, Steven (1994) From Schizophonia to Schismogenesis: On the Discourses and Commodication Practices of World Music and World Beat, pp. 25789 in C. Keil and S. Feld (eds) Music Grooves. Chicago: University of Chicago Press. Feld, Steven (2000a) The Poetics and Politics of Pygmy Pop, pp. 25479 in G. Born and D. Hesmondhalgh (eds) Western Music and Its Others: Difference, Appropriation and Representation in Music. Berkeley, CA: University of California Press. Feld, Steven (2000b), A Sweet Lullaby for World Music, Public Culture 12(1): 14571. Gates, Henry Louis (1988) The Signifying Monkey: A Theory of African-American Literary Criticism. New York: Oxford University Press. Gee, Mike (2000) Play It Again, Man, Sydney Morning Herald, 14 August. Gilroy, Paul (1993) Small Acts. London: Serpents Tail. Greene, K. J. (1999) Copyright, Culture and Black Music: A Legacy of Unequal Protection, Hastings Communications and Entertainment Law Journal 21: 33991. Harris, John (2000) Mobys Dick, Q, July. Hesmondhalgh, David (2000) International Times: Fusions, Exoticism and Antiracism in Electronic Dance Music, pp. 280304 in G. Born and D. Hesmondhalgh (eds) Western Music and Its Others: Difference, Representation and Appropriation in Music. Berkeley, CA: University of California Press. James, Martin (2001) Moby Replay: His Life and Times. London: Independent Music Press.

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