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January 11th, 2012 | Audio Stuff, EarthBound, Uncommon Knowledge

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).

@earthdyedred on Twitter and most everywhere else
soundcloud.com/earth-dyed-red

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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25 Comments to EarthBound Music, Samples, and Legal Issues


Poe said on Jan. 11, 2012

Oh, so it’s sort of like what happened to Vanilla Ice. Yeah, it does make sense.

Roo said on Jan. 11, 2012

Makes sense to me. So I guess my question is: Since EB was made in this lawless era of video games sampling popular music, does that preclude it from being re-released because it would now fall under these new laws? Or would it be grandfathered in? I suppose it depends on if new laws like the DMCA explicitly prevent such sampling, or if legal precedent was instead set via pre-EB laws…

The early Sonic games have been re-released many times since the 90’s, and I don’t hear of any lawsuits against Sega for apparent sampling.

FlyingManCourage said on Jan. 11, 2012

This was a fascinating read, even though I don’t understand anything about music (especially notation)…however it is always interesting to read opinion pieces such as these from people with so much experience in the particular fields.

May I ask if Brandon identified his age at any time? I’m really curious to know if he actually practiced law in 1995 or if this is simply knowledge gained from appropriate study and a relevant education.

Johnwalt said on Jan. 11, 2012

What? I didn’t understand that…

FlyingManCourage said on Jan. 11, 2012

@Johnwalt:

The just is that Copyright laws and the music industry have changed since EarthBound’s release. In 1995, it was very common for artists to take music that had already been composed (Think Puff Daddy) and using it to make “remakes” or “new hits”. This is called “sampling” and is still common today.

However, Brandon is telling us that in 1995, it was extremely common for musical artists to use these “samples” (read: steal other musicians’ work) WITHOUT giving the proper credit. Liner notes are the notes in a booklet of a CD that list who wrote the music, lyrics, etc.

Basically, Brandon is saying that a lot of things have changed legally since EB was released. Things that would apply to EB’s music.

Brandon said on Jan. 11, 2012

@FlyingManCourage :

I’m 26 and graduated from a top-ish law school in 2009. I’m not experienced in this field, but my knowledge base comes from a few areas:

1) Taking Computers and the Law (any class where you read Nintendo’s lawsuit against Galoob for making the Game Genie has to be a great class);
2) Being a musician and writer and therefore having a personal interest in the field of copyright law; and
3) Being a fan of many early ’90s electronica artists (Orb, Orbital, Future Sound of London, Psychick Warriors ov Gaia, etc.) – all that era where the oft-sampled breaks formed the basis of several hits.

So it’s knowledge from appropriate study/relevant education, but it’s coupled with liking music contemporary to Earthbound’s music composition and reading up on it.

@Roo:

1. There’s nothing I’ve seen in any part of the Copyright Code or DMCA (I just read the relevant parts of both) that would prohibit sampling or anything like that.

2. Grandfathering wouldn’t be an issue here. The only issue I can see is if releasing EB in a new format – VC v. SNES – would be considered a new work, which would let the statute of limitations (which for copyright infringement civil lawsuits is 3 years) start its clock again. Depending on how much NOA changes and how informed/ignorant the judge is, you could get any number of rulings there.

3. It’s unclear who owns the Beatles’ copyrights AFAIK. Michael Jackson owned 50% of it at his death, but it didn’t get passed on properly in his will and no one’s sure whom to ask about buying that 50%, not Sony or even the Beatles. Story’s from 2009 and is at http://www.wired.com/epicenter/2009/06/jacksons-death-puts-lucrative-beatles-copyrights-in-play/ .

In my semi-professional opinion, the correct outcome from a judge who knows things about 21st century technology would be that the VC is a different form of an existing work, and the clock on lawsuits doesn’t start running again simply because the offending party started to sell the thing again. Consider if Nintendo started re-manufacturing the Earthbound cart for sale (glory be!); that wouldn’t matter at all to copyright law absent an existing injunction against making/selling Earthbound. Effectively from the gamer-consumer’s perspective, that’s all the VC is doing. Try to explain that to a 65-year-old judge who might not have played a video game newer than Earthbound…

And THAT’s probably the biggest hurdle if you’re NOA’s legal team in 2012 – the outcome would be based largely on the judge they get, not the facts. That, and the more explanations NOA gives publicly, the more chance the copyright holders, who for now are in the dark, hear about it. I assume that’s why they haven’t said anything official. Could be wrong.

Brandon said on Jan. 11, 2012

@johnwalt

To add to FlyingManCourage’s great summary of my e-mail (which I didn’t anticipate getting republished in its entirety:

We’re used to thinking of EB as being a 1995 game, at which point the law was *starting* to figure out what to do with music sampling. Obviously, EB’s music was composed before 1995, though. And while that music was being made, all these sampling issues were virtually the Wild West. Musicians weren’t crediting anyone anywhere in the early ’90s AFAIK, so why would EB’s composers care?

Re-releasing onto the VC might trigger those issues under 2012 law, and while it shouldn’t be a problem, technology law is so weird that it might be. That uncertainty is annoying to everyone, and it has a particular annoyance to our community.

Kuwanger said on Jan. 11, 2012

@FlyingManCourage:

“However, Brandon is telling us that in 1995, it was extremely common for musical artists to use these “samples” (read: steal other musicians’ work) WITHOUT giving the proper credit.”

I wouldn’t call it “steal other musician’s work”, exactly, though. As Brandon pointed out, just about any musician could stitch together samples to make a dance song. But, it took a good musician to take those samples and stitch together a remix or an entirely original work. This is a rather large truth throughout history, that one musician, artist, or novelist comes up with an idea that’s original enough but hardly fleshed out to its extremes or perhaps not even done well and others come alone and take those ideas, or the style, or whatever and go with it to produce something greater than either of them alone would have come up with.

Now, obviously there’s the argument that lifting words/paint strokes/samples is going too far. But, consider where things like vampires, goblins, etc come from; that is, their descriptions and mannerism are frequently copied nearly if not strictly verbatim and reused and few people take issue with even that it should be that the original author(s) are never mentioned. Of course, when the author(s) are still breathing and complain, people take a more personal issue with it. 🙂

But, then, a lot of artists, I think, actually like the idea that people so like their work that they want to reuse it. I mean, sure, if you’re a relative unknown, someone takes you work, and they hugely profit on what you consider to be minor tweaks based on another theme (say, take your English murder mystery and make it an American Western murder mystery), you might be upset, jealous, etc–and you probably wouldn’t mind the royalties, either. But I don’t think the Beatles music’s copyright owner cares too much, or they would have likely sued NOA.

PS – I know you were just trying to sum up things. Certainly there are musicians who have used the concept of sampling as a basis to plagiarize the work of others and the culture of non-attribution was helpful to them. But, I think most musicians of the era simply liked certain music and wanted to change it either for the challenge of it or because they thought it’d work better in another form. I’d say that leans much more towards art for art sake, so it’s hard for me to hear a word like “steal” associated with it. Yes, it shows a certain lack of creativity on their part to come up with something original. But, originality is often overrated. After all, it’s precisely those little references that makes Earthbound so neat. It’s precisely the lack of references that make it a requirement that those in the culture be a good, knowledgeable student of that culture to actually known the references even when they’re not given. That’s something magical as well, even if it can be overused or abused in various ways. So, while I can certainly understand not wanting to be plagiarized…I’d say the resulting effective change in law–the law itself didn’t change, it just made the potential lawsuit outcomes more clear–was overly negative. :/

kal said on Jan. 11, 2012

tl dr

Mato said on Jan. 11, 2012

u r dum

? said on Jan. 11, 2012

Nintendo should just re-release the dang thing and re-jigger the few questionable bgms if they have to. I mean people keep buying the Star Wars even though it gets raped every time they’re re-released so I don’t understand.

People have willing to pay $100 for the cart alone for years and Nintendo can’t seem to tend to the demand. It’s insulting in an age where they can host a download and not need to actually produce anything and still they don’t even bother with it.

Darien said on Jan. 11, 2012

Oh, is that all it would take? Just completely rescoring the game and pissing off the entire hardcore fan base? Can’t see any problems with that plan at all.

FlyingManCourage said on Jan. 11, 2012

Kuwanger, forgive me it was, indeed, pretty long so I did a summary skim of your post for now. I promise to go back and read it more carefully.

As you said, I was trying to summarize and keep it as simple as possible for the sake of the person asking what was going on. I tend to look at these things on a case-by-case basis. IMO, Vanilla Ice stole the beat for “Ice Ice Baby” and Puffy stole the music/hook for his 90s hit “Missing You”. Of course, that’s personal opinion and everything. There’s also obviously cases where a sample makes up a very small part of the final work. So, my generalization was a little tactless.

The important point on this topic of sampling – and this is still done today (morality opinions aside)- is that in the 90s, as Brandon pointed out to us, there was really no legal standard for issuing proper credit for a Sample used. As it applies to EarthBound, there would be lots of credit that would be given today that wasn’t given because of the nature of the industry and the developing laws/technologies of the time.

Also, I’m uneducated and have no experience/knowledge whatsoever with music, so this is all conjecture and speculation on my end combined with what I understand to be the main ideas in Brandon’s e-mail.

Carl said on Jan. 11, 2012

The formatting of this article is a little messed up in Google Reader. Only Brandon’s first paragraph appears as a blockquote, the rest looks like normal text.

Kuwanger said on Jan. 11, 2012

@FlyingManCourage

Sorry, I tend to ramble. My knowledge of music is rather limited as well and my conjecturing is based upon my, again, limited knowledge of other copyrighted works like books. In books, plagiarism is rare because there’s plenty of space to rewrite an idea so copyright and even claims of ownership focus on ideas. In music, plagiarism is near inevitable because of the constraints of the format (it has to be melodic enough, it has to be short enough, and it most often has to use fluid sung words to convey a message); a lot of sampling in music seemed to try to break those rules of music (except the time one) using the components of other songs precisely to try to expand what music was. So, it seems a bit hazy to me just how much of it was a parody of a body of works for which the sampler didn’t think clearly enough about the need to attribute given simply a lack of foresight that that was the real big issue other musicians might have. :/

Roo said on Jan. 11, 2012

@Brandon

Thanks much for the clarification. I certainly agree that the biggest hurdle here is Nintendo relying on some random judge to successfully adjudicate what (I believe) would be the first lawsuit of its kind in US history.

No doubt they figured it would be easier to just avoid the headache entirely, which is too bad for us fans.

Mach Pizza Delivery said on Jan. 11, 2012

Couldn’t they just rerelease it and cite the sources? Or would they have had to check with the record companies first?

PK Mao said on Jan. 11, 2012

great informative summary. I would think that if this did go to court (though I doubt the copyright holders, whoever they are, of the Beatles and Beach Boys’ music would even notice enough to take it to court), Nintendo would win based on the “grandfathering in” argument.

but of course that’s way too much trouble for Nintendo to risk for a fan base that doesn’t guarantee huge sales, unfortunately.

RandomGuardian said on Jan. 11, 2012

@Roo you hit the nail on the head in the last sentence of yours. It’s not that Nintendo dose not want to fight for copyrights and lawsuits, it’s the fact that they don’t want to put up the effort. First Nintendo tried and failed to market Earthbound to match up with Japanese popularity which may or may not have been there fault. The next is Nintendo not doing so hot here in America. The 3DS didn’t sell as big as they hoped and it’s a bit to late for a new Nintendo console to take the market by storm. Now more than ever Nintendo and NOA have to keep themselfs out of a market slump, and I hate to say this but, selling the next big Mario or Zelda is alot more important than bringing back Earthbound.

Johnwalt said on Jan. 11, 2012

FlyingManCourage said on Jan. 11, 2012

@Johnwalt:

The just is that Copyright laws and the music industry have changed since EarthBound’s release. In 1995, it was very common for artists to take music that had already been composed (Think Puff Daddy) and using it to make “remakes” or “new hits”. This is called “sampling” and is still common today.

However, Brandon is telling us that in 1995, it was extremely common for musical artists to use these “samples” (read: steal other musicians’ work) WITHOUT giving the proper credit. Liner notes are the notes in a booklet of a CD that list who wrote the music, lyrics, etc.

Basically, Brandon is saying that a lot of things have changed legally since EB was released. Things that would apply to EB’s music.

Ok that made alot more sense lol.

Halloween said on Jan. 12, 2012

The more I think about it, the more it doesn’t make sense to me. I feel like us the fans are trying to rationalize Nintendo’s decision for not re-releasing Earthbound when the real reason is just “it’s a cult hit.”

Nintendo are the world champions of playing it safe. They can (and do) just ride on a few old franchises. They can just release a dozen Mario games, a Zelda game, and maybe a Kirby or Pokemon game and they’re good for a year or two.
Earthbound was apparently a failure in sales back in the day, and there’s no coming back from that in video games, especially with Nintendo in charge. They don’t have the numbers that say “release Earthbound.”
EVEN THOUGH it is the right thing to do because of all the new fans, asking them to do that is like asking a big old rich guy to do you a favor. He’s not going to because he’s busy and doesn’t need to.

Anyway I really don’t think the music/legal reason is an honest one. It’s great to think about this stuff but until someone says something official we’re just making things up at the end of the day.

Oh wait was I talking about the Zelda timeline in that last sentence??

BigDream said on Jan. 15, 2012

I’M CONFUSED…

Dan CiTi said on Jan. 22, 2012

I always knew Mother was the De La Soul of video games!!

Minifig2401 said on Feb. 7, 2012

you know i wonder what would happen if the music that was sampled, their copyright holders sued nintendo for not releasing earthbound………..

Ness1985 said on Jun. 8, 2012

It’s all just a bunch of bulls***


 
 

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