Sampling: Creativity or theft?

 Synthesizer keyboard [Photo: Unsplash]

“Trap and drill music sampling the old school classics sucks. I have tried to listen to akina Ice Spice and some new Gen Z music with some 90s samples, but I just can’t. Lots of bass and auto-tune and dragging bass beats. I think the best era of sampling soul and old classics was during the Puff Daddy and Jermaine Dupri era,” wrote photo journalist, Moses Matiba on his Facebook page.

Many upcoming artistes have been going over and beyond on matters of sampling music. Once in a while, you may hear a familiar tune or hook, but in an entirely different song. As an artistic technique, sampling allows for creative reinvention of existing works, but it also raises legal issues regarding copyright and intellectual property. Where is the line between creativity and outright infringement in this long-standing practice?

“Sampling is the reuse of a part of an existing song in another song. I do sampling sometimes, but I do not like the sampling where anyone will be able to know or tell where I have sampled from. That is why I am more into original production than sampling. If I am requested to do it, I flip around everything from the melody to the drums and the groove. I maintain the vibe, which is the most important element in a song to me,” says producer and beatmaker Ricco Beatz. 

“The basic principle behind copyright law is that if it's not yours, you must clear the rights with the rightful owner. So in the case of sampling beats, or music or a melody or whatever the case may be, you must find the rights holder," says IP Lawyer Liz Lenjo.

If you listen to Lil Maina’s songs you will notice remarkable similarities to other songs. This has seen a couple of his singles being flagged on YouTube.

Gengetone is characterised by its youthful, rebellious spirit and gritty, realistic lyrics focusing on life, and this makes it relatable to most youngins. It is without a doubt that Gengetone and its sampling of retro beats is making waves in the music industry.

However, some critics argue that the heavy borrowing from past musical styles poses dangers. There are concerns about a lack of originality and “over-reliance” on sampling. Some also worry the electronic distortion and repetition common in Gengetone could promote “mindless” music consumption. Supporters counter that Gengetone’s sampling is a homage, not a copy, and it introduces younger generations to Kenya’s rich musical history.

"Round hii si Gengetone wameacha mabeats za raggaetone na moombahtob wanatumia za dancehall sasa ganjatone,” says Musician Bandana.

The use of retro beats in Gengetone has been controversial, with some arguing that it promotes musical plagiarism. By sampling classic beats from veteran artistes without consent or attribution, some singers have been accused of benefiting from the work of others. However, supporters counter that sampling falls under fair use and expands the reach of traditional music to younger generations while paying homage to earlier artistes.

"The secret to why artistes love sampling is that it makes a song familiar to the listener therefore they become more receptive to it. When one hears a sample, it rings a bell and automatically vibes to the song," says rapper XLVI K.

"I don’t think sampling kills any one's creativity. We have seen even most big artistes sample songs and they are doing fine. Although at times one wants to play with their creativity I don’t actually think it kills anything,” says Rapper Kuky whose song 'Peng' is a sampled song.

Sampling is also common in other genres like hip hop, where short segments of existing songs are repurposed in new creative works. When done tastefully, sampling can be seen as fair use that expands the legacy of veteran musicians.

"This act was popular back in the day, especially in the Western world, where such tracks were referred to as 'Mixtapes'. The likes of lil Wayne would jump on beats by other artists like Gucci Mane and do their own versions of songs using their beats. But they would pay or share the revenue with the original owner of the beats. Unless one involves the original owners of the tracks/beats, It might not be very lasting," says  Ricco Beatz. 

The debate around sampling ultimately comes down to the question of how much borrowing constitutes plagiarism versus fair use.

How sampling works

When done legally and creatively, sampling can be an art form, but it also raises questions about copyright law and artistic integrity. To understand the complexity, you must first comprehend how sampling is utilised in songs.

A producer selects a portion of a song to sample, such as a drum beat, bassline, melody, or vocal. They may sample multiple layers from the same song or different songs to create an entirely new musical work.

"When I use samples, it usually comes across two ways. Either I'm referencing the original song or I'm making something completely different out of it. I think the best place to draw the line is when the original composer can't tell that it's their work. I use a lot of sampled stuff off of YouTube but I only post beats and stuff on soundcloud, and you can usually get away with a lot on there. The risk of a copyright strike isn't huge if you're an underground artiste," says Producer Ianobeats.

The sample is usually looped, repeated continuously in the new song, or rearranged by changing its pitch, tempo or sequence. Producers often layer samples with new instrumental and vocal tracks.

Recognisable samples, especially of vocals or melodies, are used to evoke nostalgia or make an artistic statement. Unrecognisable samples are more subtle and used primarily for percussion, rhythm or feel.

Some songs rely heavily on sampling, while others only use samples sparingly or in the background. A single song may utilise dozens of samples, recontextualising them into a cohesive musical collage.

As an art form, music sampling allows for creative reinterpretation and expression. For artistes, it provides several advantages. By incorporating elements from songs they enjoy, artistes can pay homage to their musical influences and heroes. Sampling opens up possibilities for creative collaboration across genres and generations.

This experimentation can lead to innovative sounds, rhythms, and styles. Hip-hop music in particular has showcased how sampling fuels creativity. Many sub-genres have developed from the innovative use of sampling.

For new artistes, sampling provides an easy way to get started, making music without expensive equipment or instruments. All that is needed is a computer and digital audio workstation. This accessibility allows more people to develop and share their creativity.

While there are certainly arguments to be made regarding copyright infringement, music sampling should be recognised for the creative possibilities it enables. When used responsibly by artistes, sampling celebrates music's ability to be reimagined in new ways.

But when an artiste samples another musician’s work without permission, it creates legal issues regarding copyright infringement. Unauthorised sampling poses several significant problems.

"In  this instance, where one uses part of someone else work, we call it derivative works, because it's borrowing from an original, the consequences of failing to clear the rights that would arise to caution yourself form legally liable for that infringement. Most of the time is a civil claim, and depending on how big the song is, it can be lots and lots of money, including legal fees," says Lawyer Liz. 

Musicians invest substantial time, money, and effort into crafting their work. When another artiste samples that work without consent, the original creator loses control over how their creation is used and interpreted. They are unable to determine whether the new use of their work aligns with their artistic vision or brand. If a sampled artiste takes legal action over copyright infringement, the musician who used the unauthorised sample can face significant liability.

Penalties may include paying damages, ceasing distribution of the infringing work, and even facing criminal charges for willful infringement. Lawsuits can be extremely costly, time-consuming, and damaging to one’s career.

What to do?

With all that said and done, what should one do to ensure they find the right balance between creativity and copyright? As an artiste, you want to build on the work of those who came before you, but you must do so respectfully and within the confines of the law.

The safest way to sample is to obtain licensing from the copyright holder, whether that is a record label, publisher, or artiste. Licenses provide permission to use a song or portion of a song in your work. While licensing does come at a cost, it protects you legally and allows you to sample with full creative freedom.

The musical scene is likely to continue grappling with this issue as sampling becomes even more prevalent and technology makes it easier to sample, manipulate, and share. 

“One needs to get permission to be able to sample a certain track, and this is what we call sample clearance. It is in most cases costly and can involve quite a long process. Also, I would say it will depend on your team/relations with the artistes/label at hand,” says Ricco Beatz.