Kendrick Sued Over “Rigamortis”, Should He Pay Up? (A Sample Clearance Guide)
Ah the music industry, where lawsuits get passed around like chicken wings at Rick Ross' birthday party. This time around, it involves jazz musicians Willie Jones III and Eric Reed suing Kendrick Lamar for a reported $1 million, claiming that "Rigamortis" is a lift of their 2010 jam, "The Thorn."
As a story, there's really not too much more to be said beyond "let's see if we can hear for ourselves," and a lot of other people have already written that story. But every time one of these sample lawsuits hits the interwebs I see a lot of the same questions, comments and music myths being repeated, so I thought I'd seize the chance (once again) to try to clear things up. Hopefully I'll be able to simply point back to this article the next time a situation like this comes up, and I think we all know it will.
For the record, I'm far from an expert when it comes to music law, and I'm certainly not a lawyer. I graduated college with a creative writing degree for a reason. But I have spoken to literally hundreds of artists, producers, music supervisors and publishers about sample clearances, been directly involved in clearing a few myself, and I've even been through a lawsuit or two. I consider myself an educated novice, so those out there with more information, share it. And I know a lot of y'all are even more expert than me in music matters, but I also know there are tons of people out there with basic questions about the entire sampling world, so I'm really going to try to keep things as simple and basic as possible.
With that quasi-disclaimer out of the way, let's get to the business at hand and walk through this step-by-step.
First Things First, Did They Sample "The Thorn"?
Good question me, let's take a listen:
Yeah...I don't really see how any objective listener could hear that and not believe that "Rigamortis" is derivative of "Thorn." That's a pretty unique horn riff, and "Rigamortis" is almost note for note. I wasn't in the studio so I can't say with 100 percent certainty that Kendrick and company did knowingly use "The Thorn," but as the saying goes; if it looks like a duck and quacks like a duck, then it's probably an uncleared sample.
Should Kendrick Pay Up?
I know fans can be quick to rush to their hero's defense, especially when it's a rap god like Kendrick being sued by hip-hop outsiders. Lawsuits like this can feel like the musical equivalent of suing McDonald's because you spilled coffee on yourself, and there's certainly no shortage of shady suits pumping through our legal system, but that doesn't mean Jones and Reed are in the wrong here.
Especially in 2014, it's easy to think of anything in the digital space as fair game (shades of the fappening), but music like "The Thorn" isn't that much different than physical property. Let me see if I can put this in more accessible terms...let's say you live in the country. You spend your own money on supplies, sweat for hours digging a hole, and build your own well. Your neighbor, however, digs a secret tunnel and taps into your well. Now, not only is he drinking off your hard work, you find out he's bottling and selling that water to your other neighbors. You'd be pissed, right? You'd want him to shut off his connection to your well, and give you all the money he made selling it, right? Maybe if he had come to you first and asked you would have been down to work out an arrangement, but since he did it without asking, he can go fuck himself, and if you gotta take it to court, you gotta take it to court.
That's hugely over-simplified, and I don't know why the fuck I'm making well analogies (since so many of us can relate to building a well for drinking water), but yeah...otherwise, it's the exact same thing. I know, I know, you're so lucky I'm here to clear things up.
So yes, I'd have to say Kendrick should pay up for taping their pipe (pause?) without permission. Now, in some cases I think it's legit to argue that sampling, particularly in regards to freestyles, is such a core part of hip-hop that a rapper shouldn't be sued for using a beat. That's not a legal case, at all, but it is a cultural one, and I think it has some weight; it's basically what a lot of people were frustrated with Lord Finesse about in regards to Mac Miller. Here though, we're talking jazz musicians who aren't beholden to any of that, and if they want to get paid, I don't blame them.
Ok, so, assuming Reed and Jones have at least some right to compensation, what are the factors?
Interpolation vs. Sample
Speaking of basics, there's essentially two parts of any song. One, the song as it was recorded/performed by the artist (the master). And two, the music as a combination of words and melody, independent of the performance (the songwriting). So if I sample someone, I'm using both the master (their music as they performed it) and the songwriting. But if, for example, I re-sing a song myself (aka cover it), I'm only using the songwriting (the words and melody), not the master (the original music as it was performed by a specific artist).
Why does this matter? Because using a master requires a sample clearance and using just songwriting doesn't. It's a loophole of sorts, called interpolation, that hip-hop producers can use to include music they can't clear as a sample; Just Blaze is widely known to be the king of interpolation; he's brought in full choirs to re-sing songs he couldn't clear as a sample.
Now, you still have to pay for the songwriting (as a compulsiry license), but not as much, and you don't need permission first. So if Kendrick had brought in another trumpet player to interpolate that horn riff (unlikely but possible), as opposed to directly sampling, it would change things.
So let's say we know it's a sample, not an interpolation. There's still no strict formula for how much a sample costs, but prominence is a huge factor. To use the "Hey!" sample I wrote about previously as an example, on "Live Fast Die Young" Kanye uses that sample repeatedly throughout the song and it's a significant part of the beat. On "Ashley" though, that same sample is barely noticeable, so it likely cost much less to clear than "Live Fast."
In this case, Reed and Jones have said, "The song isn't merely part of Rigamortis, it is Rigamortis," and again, it's hard to argue with them. That riff is the central part of the entire instrumental, and runs in continual loop throughout. Unfortunately for Kendrick, this means that Reed and Jones kind of has him by the balls.
It's all part of the dance. When Nicki came to Sir-Mix-A-Lot on "Anaconda," he knew he could charge her a lot more and she'd have to pay - if the sample isn't cleared the entire song would have to be scrapped. But on "Ashley," if the rights holders of that "Hey!" had asked for too much, No I.D. would have likely just removed the sample entirely. It wouldn't have really affected the song, and those rights holders would have made nothing.
But Wait, I Thought "Section80" Was a Mixtape?
The idea that "if you don't sell the music you can't be sued" is easily the most common misconception in music today.
First and foremost, there's no such thing as can't be sued. It's the difference between the legal system in theory and in practice. Someone can sue you over just about anything. Now, they might not win the case, but you're still going to have to go through the trouble and expense of fighting that lawsuit to get it dismissed.
So yes, you can be sued for using that sample off your mixtape that you didn't sell. It just likely isn't worth it for someone to sue you. They'll spend more in time and money on lawyers in one hour than they could possibly hope to make from even winning the lawsuit. So a lot of rappers are protected by their own poverty, which they then mistake as actual legal protection. And a lot of what looks like opportunism - artists only getting sued once they blow up - really just means they were always legally in the wrong, that poverty blanket is just no longer covering them.
For the record, "#Section80" was both a free project and for sale on iTunes, with "Rigamortis" included, so it's kind of a moot point.
Ok Then, So How Much?
Ah, the million dollar question (pun intended).
Way back in, say, 1998, before the internet really took off, this was a much easier question to answer. Someone looking to sue over a sample could come up with a percentage they thought the sample mattered to the song, multiply that by the number of copies sold and boom, that's how much they could sue for. There may be some fighting around that percentage, but the rest was relatively straightforward. (That only addresses the sample of the performance, the publishing around the songwriting could be, and often is, far more lucrative.)
But in 2014, that shit is almost impossibly complicated to figure out. You'd have to add up all the album sales, song sales, YouTube streams, Spotify streams, Pandora streams, and that's just the basics. They're also likely including concert ticket sales and his overall rise. (Even if Reed and Jones claim their sample on "Rigamortis" was .01% responsible for people coming to see Kendrick live, for how much he tours, that can add up.)
The truth is, there's really no standard agreement on how much any of those things are actually worth. If this does make it to court, at some point the judge will ask Reed and Jones' lawyer how they came up with the $1 million in damages figure, and I'd be fascinated to hear their logic. Unfortunately for them, "I don't know, that seemed like a round number, and I'd like to have that much money," isn't going to cut it.
So there's a thousand mathematical and legal factors at play here. But really, when it comes to sample clearance, it's all about relationships. If the rights holder of a sample doesn't like someone, or doesn't like the song, they're not obligated to clear that sample, for any amount of money. Reed and Jones have said they hate hip-hop, and they're obviously angry they weren't asked for the clearance first, so they're going to drop the hammer.
By contrast, if a rights holder is a fan of the artist, or better yet knows and likes them personally, they might even clear the sample for free, or do it in exchange for some sort of favor (like a verse on one of their songs). Beatles samples were thought to be unclearable, for any amount of money, until RZA befriended George Harrison's son, who petitioned his dad on behalf of RZA, and that's why "Heart Gently Weeps" exists.
Really, the lesson behind sample clearances is that it's a deeply personal, thoroughly complicated and essentially made up as you go along affair, which isn't much of a lesson, but it's the truth. Still though, hopefully that serves as a foundation for artists and producers out there to be able to ask people who know a lot more than me the right questions on their own path to sample riches/poverty.
"Rigamortis" is still a dope ass song though...and so is "The Thorn."
p.s. - Just in case it's not already absolutely clear, I have absolutely no inside knowledge of how "Rigamortis" was recorded, any negotations Reed and Jones have had, or not had, with TDE, and the specifics of the lawsuit itself. I'm only using this "Rigamortis" lawsuit as a platform to discuss sample clearance more broadly. And yes, this is me adding on this p.s. after spending the last two hours thinking about lawyers.
[Nathan S. is the managing editor of The DJBooth and a hip-hop writer. He also occasionally talks in podcast form and appears on RevoltTV. His beard is awesome. This is his Twitter.]
Written by Nathan S. on 09/4/14
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