Threed Circus Tent Glitch
Back in my old post about EarthBound and its Virtual Console issues I asked people more knowledgeable about copyright law to chime in on the subject. I recently got an e-mail from a fellow named Brandon who did just that. Here’s what he has to say:
I was just digging into the samples informing EB music – I knew they were there but hadn’t heard the sources until looking at your page. You sound like you’re the type who would know some of the below material, but as a lawyer, musician, and EB fan, some things about the music composition make more sense to me than they would to those in your comment thread.
My 2012-era question in the midst of the music’s sampledelic nature is, “How did the music get cleared for the US in the first place?” Certainly some of the differences in copyright use are Japan-US differences, but some of the samples are clearly recognized from Beatles songs – i.e. the least obscure band they could have used.
The trick is in the development period.
As you might know, affordable samplers hit the market around the same time as the Ultimate Breaks and Beats compilations (the latter of which has its own Wikipedia entry: http://en.wikipedia.org/wiki/Ultimate_Breaks_and_Beats). The series allowed DJs to sample the Amen Break, which has shown up in basically everything. The series + turntables + samplers meant that snippets of songs were suddenly new sources for instrumentation. This didn’t show up until the mid-’80s.
Most importantly, if you get a bunch of late ’80s or early ’90s rap or dance albums (particularly early ’90s house), there are two main things you pick up:
1) They’re obviously built off samplers; and
2) They’re never sourced in the liner notes.
A lot of that house era is defined by a transposed chord. “Everything” by Moby has a piano break in C minor-G minor-B flat minor; this is probably a sample he transposed. Similarly, the 808 State hit “Pacific” opens with a Fmaj7-Gmaj7-Cmaj7-Dmaj7 sequence. Samples with transposed pitch formed the chordal structure of tons of these works. It’s what the new technology could do.
That’s precisely the type of sample manipulation in EB. The Star-Spangled Banner insert in Jackie’s Cafe music is transposing the same chord at different pitches to approximate the melody, which is why it sounds creepy – nobody aiming for melodic music would play chords that way together – and also why it’s difficult to detect initially. The main point here is that making songs like that is very much a product of its era. The composers took their cues from contemporary devices and how other artists used them. That they managed to transcend the sameness of those influences is a testament to their skills as composers. Anyone can throw samples on a beat and make a dance song, but good composers shine because they use their technology to enhance original ideas.
At the same time, frenzied sampling was also very much of its time because the copyright laws simply hadn’t caught up to musicians yet. In technology-related areas of the law, the law takes a long time to get somewhere, because it has to go through these steps in essence every time:
1) Something happens.
2) It grows popular enough to get noticed.
3) The affected party notices it.
4) The affected party sues.
5) A judge hears everything and makes a decision.
The step from 1 to 2 usually never happens. Sampler-heavy genres – rap, jungle, house – stayed underground for long enough that it took years for artists and lawyers to figure everything out. Add those couple of years to the year(s) it can take to get through a case, and the thing that started it all might be 5 years past.
If step 2 and 3 are connected in the public, things accelerate, but that still can take time. The Orb, who used samples for everything, got in trouble for sampling Rickie Lee Jones’s interview in Reading Rainbow at the front of “Little Fluffy Clouds,” but not only was it unaltered, it was the backbone of a UK #10 hit, where everyone could find it easily. Enigma, a.k.a. Michael Cretu, had to reveal his real name because of a sample/royalty-based lawsuits, but again that was only because it came out from his worldwide hits such as “Sadeness (Part I)” and “Return to Innocence,” and the latter’s lawsuit didn’t happen until 5 years after its release.
My point is: Earthbound’s sample-heavy uncredited music couldn’t have been made in any other era due to technology on one end of the timeline and emerging copyright law on the other end. The samples they used probably weren’t strictly legal to U.S. copyright law, but it was an area of emerging law particularly during EB development and was only fully forming into what we’re used to around the time of EB’s U.S. release. While NOA lawyer teams might have been antsy enough to ask for a music change, that’s retrofitting 2012-era legal-ness onto 1994 lawyers. I can’t say for certain that 1994 NOA could have said, “oh, that samples the Beatles; that’s a lawsuit waiting to happen.” Music sampling copyright law hadn’t caught up to the technologies that brought about the lawsuits during EB’s music composition. It would catch up very soon afterward, but at the time it was still being worked on. Nowadays, every album cites its samples, the copyright information, and so on in its liner notes. When EB music was being written? Nobody did that; nobody thought they had to.
I guess that just makes Earthbound more unique in the end – it required cheap sampler technology, a game system capable of playing those samples, composers who had in-game reasons to use them (few games needed a soundtrack so wigged out), and a body of copyright law that hadn’t yet said no to it. That pretty much narrows it down to Earthbound, and it’s stunning how far ahead their music was given those constraints (compare to, e.g., Boards of Canada’s Geogaddi album, how important it was on its release, and how much that band is cut from the same cloth as Earthbound when it comes to composition).
This actually makes sense to me – you can see this same thing happening with the Internet and technology too, where laws always seem to be several steps behind new technology. What do you folks think?
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