Last week Matt Schruers wrote a blog post at Project Disco titled “Today’s Internet: Made Possible By A Rude Rap Song” (both TechDirt and Reason’s Hit & Run wrote follow up pieces). I enjoyed the post but as a hip hop head and a copyright nerd I need to drop some knowledge. I have one small critique on the copyright analysis but I think the piece misses a much larger and more important story altogether.
Schruer’s original post reflected on the 20th anniversary of the landmark Supreme Court decison Campbell v. Acuff-Rose. This case found that the rap group 2 Live Crew’s song “Oh, Pretty Woman”, a riff on Roy Orbinon’s famous “Pretty Woman”, did not violate copyright because it was a parody.
The Copyright Part…
The case is seen as a landmark fair use case because it protected the defendant even though their parody song was a commercial success. Shruer wonders why, that despite this precedent, most judges and officials seem unaware that fair use can apply to commercial works. On this copyright point I would say that it is because the court decision really focused more on the fact that copyright doesn’t apply to parody, rather than that commercial works could be fair use.
The More Important Story…
What I really take issue with in this piece is a secondary argument that Shruers indirectly makes in his post. The piece, notes that this “rude rap song” by 2 Live Crew was found to be fair use by the Supreme Court despite being a “lewd skewering” of Roy Orbison’s original song. Basically that the stuffy old Supreme Court didn’t let the fact that it was a hip hop song prevent them coming to the correct verdict. Then Schuer writes “[here is] some interesting C‑SPAN coverage of the case before the Court’s decision, hinting at class overtones of the dispute…” (emphasis added).
I personally read that sentence as dismissive of 2 Live Crew’s argument that race was a factor, but at a minimum it fails to even acknowledge that this case was part of a much larger story about, culture, race, and hip hop.
The War on 2 Live Crew
Hip Hop wasn’t always the pop radio favorite like “Thrift Shop” is today. Believe it or not there was a time when hip hop was not widely embraced by mainstream American culture.
In 1989 “Oh Pretty Woman” was released on 2 Live Crew’s iconic double platinum album “As Nasty As They Wanna Be”. At this time ‘gangsta rap’ was just emerging with N.W.A’s “Straight Outta Compton” album having been released in 1988. Meanwhile the Parent’s Music Resource Center, founded and headed by Tipper Gore (Al Gore’s wife), was on a crusade to keep explicit lyrics away from the ears of children. It was the PMRC that came up with the infamous “Parental Advisory Explicit Content” stickers, which the PMRC pressured music labels to apply to their albums. These stickers were a big deal and Wal-Mart, the largest music retailer at the time (iTunes did not exist), wouldn’t sell any album that had such a sticker. In response many hip hop artists had to create ‘ clean’ versions of their album and so 2 Live Crew created an edited “As Clean As They Want To Be” version of their album. The arbitrariness with which these stickers were applied was seen by many as a form of censorship.
To illustrate just how ferocious this moral crusade was, a federal district judge (with the involvement of Florida’s Governor) actually ruled that “As Nasty As They Wanna Be” was obscene, a legal designation which overrides free speech protections and made the album illegal in the court’s jurisdiction. Three members of 2 Live Crew were then arrested in their home state of Florida on the same charges of obscenity. Though they were eventually acquitted on appeal, the trial was a major story and included testimony from Harvard Professor Henry Louis Gates (of Obama Beer Summit fame) who wrote in the New York Times that the case included “the volatile ingredient of race added to already complex arguments about artistic freedom”.
As the 2 Live Crew member in the CSPAN video linked to in the original blog post notes, “it isn’t Weird Al Yankovic being sued” (alluding to the fact that famed parodist Weird Al wasn’t the one trial but it was black rappers). I would highly recommend watching a clip of that CSPAN coverage here, and listen to the case that 2 Live Crew makes as to why it was them, and not other parodists, that were the one’s being targeted.
Copyright as a weapon against HIP HOP
While the copyright infringement charges against 2 Live Crew eventually failed (ironically because white judges mistook their remake as a parody), this example wasn’t the first time that copyright law had been used to try to shutdown the emerging artform of hip hop. At the same time as Campbell v. Acuff-Rose it was a different district court case against rapper Biz Markie that changed hip hop forever.
Hip hop’s humble beginnings stem from a setup where a DJ would hook up two turntable’s and a mixer to use as his/her instrument. By necessity these new hip hop works used bits and pieces of the sounds on the individual records to create a new genre of music. As the genre grew and technology progressed the means of creating hip hop songs became more advanced though the underlying art form remained the same. Incorporating older musical clips into new hip hop songs became known as sampling and 9 out the 10 ‘Greatest Hip Hop Songs of All Time” used this technique (just to give a sense of how foundational sampling is to hip hop).
Pioneering early hip hop artist Grandmaster Flash on ‘Turntables’ circa 1980
To give an illustration of sampling check out this WhoSampled page, which demonstrates how a single from N.W.A’s 1988 “Straight Outta Compton” album (mentioned above) samples a Marva Whitney track from 1969. Check out a more modern example of J. Cole sampling Kanye West or Tupac’s California Love sampling British rocker Joe Cocker.
In 1991, the very same time period as Tipper Gore’s moral crusade and 2 Live Crew’s legal problems, a New York district court heard a sampling case involving rapper Biz Markie. I won’t go into the details of the arguments or the case Grand Upright Music, Ltd. v. Warner Bros. Records Inc. except to say it was about this song sampling this song. The decision of the court ruled against Biz Markie in the harshest way. The judge’s opinion cited not a single precedent, only citing the bible, with the opening line of the opinion reading, “Thou shalt not steal”. The opinion goes on to say…
This callous disregard for the law and for the rights of others requires not only the preliminary injunction sought by the plaintiff but also sterner measures.
The judge then referred the case to the US attorney general for criminal charges to be filed.
Fair use doctrine was not considered at the trial and Judge Duffy’s shallow legal thinking left many outraged. The result of this case was that hip hop songs thats used dozens of samples in a single track were no longer possible. Even you could get licenses from each owner so many different royalties would quickly add up. Hip hop sampling, and the heart of hip hop, was stifled and artists had to turn to a technique called interpolation to try to make their records. It was this period where copyright litigation put the muzzle on the hip that marked the end of hip hop’s golden age.
It’s hard to say how much race and culture played a role in Judge Duffy’s opinion, but I find it hard to believe that his ruling would have opened with “Thou shalt not steal” had it been a white pop star who was on trial for sampling instead of a black rapper. It is also worth to noting that now with the mainstreaming of hip hop and emergence of remix culture on youtube there is much more attention and support is given to issues around sampling and fair use. Unfortunately it was early cases like Biz Markie that set the precedent for everyone.
*As an aside I’d also like to mention the precedent setting sampling case Bridgeport Music, Inc. v. Dimension Films which centered around gangsta rap group N.W.A
Conclusion
While I did enjoy Matt Schruers’ “Today’s Internet: Made Possible By A Rude Rap Song” piece, I just thought it was lacking in context and that actually today’s internet and copyright system is worse off because of precedent setting hip hop cases, not better in spite of them.
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They called “freedom of speech”…