Clearance culture is hindering Canadian artists’ creativity

By: Michael Rancic | Photo by: Chachi Revah

In a cryptic post to her Twitter account in mid-August, Montréal-based horrorcore rapper Backxwash announced that her Polaris Prize shortlisted album, God Has Nothing To Do With This Leave Him Out Of It, would be removed from streaming services and no longer be for sale in any format. “Wish I could go into more details but I can’t!” she added, following up in another tweet by comparing the situation to that of Death Grips’ 2011 album Exmilitary

Like MC Ride & co.’s debut, Backxwash’s latest album is sample-heavy, deploying percussion and vocals from oft-used sources like Led Zeppelin’s “When The Levee Breaks” and Black Sabbath’s “Black Sabbath.” This technique simultaneously situates her work within hip-hop history and forms the heavy metal aesthetic that permeates the album. Alluding to the Death Grips situation hints that some, or all of the musical quotations used on God Has Nothing To Do With This were not cleared for her to use. “Clearing” a sample is a process by which artists attempt to gain the rights to use elements of a song from its rights holder. It’s an intentionally opaque and expensive process that privileges major labels and stifles creativity.

In hip-hop, when an artist can’t clear a sample— either because it’s prohibitively expensive to do so, or they’re denied by the sample source’s rights holder— they often release the song online or on a mixtape for free. But as much as artists have accepted and adapted to this model, it forces them to make an untenable decision: navigate a system not designed for their benefit, or waive their ability to sell their own creative work. 

Non-commercial use exemplified by mixtape culture is enshrined in Canadian copyright law through what’s colloquially known as the “mashup” or “YouTube” provision in our Copyright Act. In Canada, the government defines copyright as “the exclusive legal right to produce, reproduce, publish or perform an original literary, artistic, dramatic or musical work.” The copyrights of a musical work are divided into reproduction rights, handled by Canadian Musical Reproduction Rights Agency (CMRRA), and performance rights, which are handled by Society of Composers, Authors and Music Publishers of Canada (SOCAN), and Re:Sound for songwriters and recording artists, respectively. 

Things get a bit more complicated when factoring in sync rights for TV or film, background music, mechanical rights, satellite radio, etc. Even though we have our own set of laws to protect these rights, for Canadian artists like Backxwash, the terms of sample clearance are dictated by American major label corporations and American case law, and policed through non-Canadian tech companies like Spotify, YouTube, or Soundcloud. 

“We’re seeing a lot of enforcement by algorithm,” explains Brianne Selman, scholarly communications and copyright librarian at the University of Winnipeg. With streaming becoming the most common way for people to listen to recorded music, services like YouTube (with its native Content ID technology), or independent companies like Dubset (recently acquired by Pex) use proprietary fingerprinting to identify sound sources in order to sniff out copyright infringement. 

This method is likely a contributing factor to how Backxwash’s samples were discovered by copyright enforcers. “We know computers are making decisions, but we don’t know how and we don’t know based on what,” says Selman. It’s unclear what technology Spotify uses, though we know they acquired Echo Nest in 2014 after that company developed audio fingerprinting technology. Distributors that work with Spotify, like DistroKid, also license third party digital fingerprinting software. 

These automated copyright infringement algorithms happen at a stage before an artist can even speak to their use of a certain sample and its place in their song. The technology circumvents legal frameworks, thereby entrusting private tech companies with the role of what is or isn’t legal. The algorithms also don’t take into account where an artist is from and therefore the nuances of laws that exist in a global market are lost. Selman says they don’t provide a trustworthy method for tracking actual infringement, citing a recent case where claims of copyright infringement were levied against the sound of static. To the delight of noise musicians everywhere, no one owns the sound of static, but that didn’t stop people from saying they did. 

At the University of Winnipeg, Selman works with faculty and students to explore their rights as creators and users, a knowledge base which also connects to her work with the Cultural Capital Project, a research-based initiative that “aims to establish a ‘radical monetization’ of the music industry based on equity, connectivity and sharing.” Members of the project were involved in petitioning the government for fairer use laws around copyright in the recent 2018 Copyright Act review. 

“You need to be accessing other people’s creative work in order to make your own. That’s part of how creativity happens,” she explains. “Things like remixes and sampling and those really fantastic ways of using other people’s intellectual property in totally new ways are really innovative and aren’t things that we [as a country] want to be shutting down.“

Selman says that while copyright law is meant to uphold the rights of songwriters like Backxwash, the system is unfairly stacked against those not on major labels. “Copyright formalities absolutely hurt independent artists at this point, even though that’s who these laws are supposedly written for,” she argues. “The creators, the people who generated the work that has copyright, are almost never able to take advantage of the law.” 

The law is also incredibly difficult to challenge given how consolidated the industry is in Canada. The “big three,” represented by major labels Warner, Universal, and Sony, account for about 75% of the total market share here. The recent American federal appeals court decision that sided with Drake over his use of a Jimmy Smith sample, defining it “transformative,” feels like a monumental step forward for how the courts understand sampling. However, it obscures the fact that Drake was likely able to obtain use of the sample in the first place because he’s on Warner, the label that also owns the publishing rights to Jimmy Smith’s Off The Top, the 1982 record that “Jimmy Smith Rap” first appeared on. 

“[Within the same label] you can get those samples much cheaper, much easier than [Backxwash] can, because it’s all within the one big family,” Selman states about how the law, influenced by the major label system, benefits artists who operate within that system. If you’re not Drake, clearing a sample can run anywhere from $4,000 to $20,000 USD to get permission from both the owner of the recording masters, as well as the owner of the composition itself. That’s a huge price tag when you also factor in how the Cultural Capital Project has found that the average Canadian musician makes around $17,900 a year.

It’s also these same record companies who are lobbying against copyright reform, and pushing for longer term extensions so that rights holders can retain their rights over longer periods of time. Longer terms prevent new artists from freely quoting or referencing those creations in their own work. The recent signing of the new United States-Mexico-Canada Agreement (which takes over for the previous North American Free Trade Agreement) means that Canada is now obligated to extend copyright terms from 50 years to 70 years after an author’s death. While our trade relations have greatly influenced this course of action, the change has long been advocated for by Music Canada, the organization that lobbies domestically on behalf of the Canadian shells of the “big three” labels. 

That hip-hop is predominantly a sample-based style of music, means that these copyright laws often disproportionately affect Black, Indigenous, and other marginalized artists. Sampling is historically not the only way copyright law has been used as a tool to disenfranchise non-white musicians, stripping them from the control, autonomy and financial benefit of owning the rights to their own work. Academic and entertainment lawyer Kevin J Greene has focused much of his own scholarship on this very subject, noting in an essay titled “Papa’s Got a Brand New Bag: James Brown, Innovation, and Copyright Law:”

The founding fathers established copyright law as a means for increasing cultural productivity by giving economic incentives for the creation of artistic works. Analysts note that “in large part, the early music industry [ in the United States] was built largely on the creativity and innovation of black composers and artists.” One would think, then, that black artists would have been among the prime beneficiaries of copyright law given their astounding contributions to the world of music. However, the actual history of black cultural production and the law is one of inequality rooted in racial animosity.”

New Feeling reached out to Backxwash to comment on the matter, but she declined. It’s completely understandable that she can’t or won’t comment on the situation because the threat of litigation, over not just uncleared sample use but talking about the rights holder(s) who flagged an issue or issues on God Has Nothing To Do With This is very real. Now, she faces a potential Polaris Prize win, and save for the prize money won’t be able to reap the reward of the storied “Polaris bump” in album sales that winners experience after being thrust into the spotlight

Backxwash could potentially try re-releasing God Has Nothing To Do With This without the samples, and recently revealed in an interview with Complex that she even entertained the idea, but ultimately resolved that they made it what it was. “I was experimenting to go sample-less,” she says. “As I started making these beats, they sounded cool, but the idea of the sample is telling a story, and I miss telling those stories. When it’s coming off a VST, it’s hard to see what that story is. Even if it sounds incredible, I’m not connected to it. With the samples, I’m connecting to those sounds.”

Deep Digs: Mort Garson’s Lucifer: Black Mass (UNI Records, 1971)

Music for Satan and the people who love him

By: Michael Rancic | Mort Garson photo courtesy of Day Darmet

In Deep Digs we take a look at significant albums from Canadian history, with an emphasis on music that might have been overlooked the first time around. Our inaugural feature in the series focuses on Mort Garson’s Lucifer: Black Mass, which writer Michael Rancic argues is the most Mort Garson of all Mort Garson records. 

Black Mass stands out in composer Mort Garson’s long and idiosyncratic discography like an inky smear on an otherwise colourful and varied canvas. The sole album released by his alias Lucifer is filled with shadowy melodies, minor key passages, and a fascination with the occult. It’s a stark counterpoint to Mother Earth’s Plantasia, the album Garson is best known for, with its music written for plants and the people who love them. This album, like Plantasia, is a testament to the electronic pioneer’s ability as a composer to take an idea and immerse himself in it, and speaks to the creative freedom that he was able to tap into once introduced to the Moog synthesizer. 

Wherever he went, whatever he did, Garson never fit in neatly. He was born in Saint John, New Brunswick but lived most of his life in the United States. His synth of choice was a Moog, despite the fact that he lived in San Francisco where the pervading school of thought at the time was very much against the synth’s piano-style keyboard, opting instead for the waveshapers and low pass gate exemplified by Don Buchla’s eponymous machines. Like his contemporary and fellow expat Bruce Haack, Garson studied at Julliard and even had a hit on his hands in the early 1960s after writing Ruby and The Romantics’ “Our Day Will Come.” Yet he never quite had a home in pop music. Garson did find a niche where he could in writing novelty songs, guided by his love for the conceptual.  

I spoke to Garson’s daughter, Day Darmet, for a feature that addressed Plantasia and its influence earlier this year for The Walrus, though those passages ended up getting cut from the final piece. Darmet’s insights into her father’s work are admittedly limited, as she was still a teenager when he wrote and recorded most of his work, but she does recall how the Moog changed him. Garson was working as a songwriter, conductor and arranger when he discovered the synth. For a classically trained composer, the familiarity of the Moog’s keyboard and controls was an open door to discovering the worlds of sound it contained. 

“[Music] was a constant source of conversation just from being around him. He was consistently either writing, playing or at the very least tapping his finger to a song inside his head,” Darmet recalls. Having the Moog around gave him an unprecedented immediacy for writing and recording his ideas. For someone who was used to conducting orchestras, he now had one at his fingertips. “He could write inside his head and he could hear it back right away,” Darmet explains.

As it turned out, prior to his introduction with the Moog, Garson was looking for a way to inspire such a fundamental change in his work. “It had been a long time before he had an option to get out of commercialism and go into something that was more artistically motivating for him,” Darmet says, explaining that the synthesizer was liberating for him and his art for a myriad of reasons. “It was not conventional, it was something that was relatively undiscovered, and that allowed him to make music in a different way.”

Black Mass then is the sound of Garson embracing his anti-commercial side in the most anti way possible: a synthesizer-based album inspired by Satanism and the occult. A “black mass” is a fitting theme for Garson to explore at this stage in his artistry as it represents an inversion or perversion of one of the main pillars of the Catholic faith—essentially going against the grain. His alias, Lucifer, also shares that same contrary nature, acting as a foil to God himself. In that sense, by exploring these themes this record is wholly a rejection of Garson’s own commercial work, making it perhaps the most “Mort Garson” album he ever made. “It didn’t matter to him if it sold, if someone listened. It just had to be produced. It had to be made. It had to come out,” Darmet reveals.

As writer Sarah Jaffe points out, the connection between esoteric wisdom, the occult, and anti-capitalist beliefs is a longstanding one, and a growing stream of scholarly exploration given the recent revival of practices like tarot card reading (which Garson would later explore in full on 1975’s Ataraxia: The Unexplained. “The emerging proletariat had to be trained to defer gratification; to stifle desire; to value accumulation over expenditure,” Jaffe writes for Verso.“A belief in magic, instead, centered desires—and their fulfillment—communal and personal, for care and sustenance and protection.” 

Black Mass begins with an invocation of the pentagram, or “Solomon’s Ring,” with fluttering notes that trill and bloom into an intensely percussive seance. Its driving beat and beguiling melody summon forth streaming synths that pan and howl before dissipating once more. The song establishes a dark mood that hangs over the entire record.  

“Incubus” wanders insatiably before pitched-up moans materialize (perhaps taken from Garson’s other 1971 project, Music For Sensuous Lovers), while the title track “Black Mass” features disembodied synths and bells that announce the presence of a wildly gesturing, bright melody of mania. “Exorcism” is much more buoyant than the iconic creepfest performance Linda Blair would deliver two years later in the William Friedkin classic, The Exorcist. While the material on Black Mass isn’t purely purgatory, with lighter passages throughout that sound to a contemporary ear less demonic than the high drama typically associated with “horror synth,” they make the record all the more unsettling. As the most talented metal and goth musicians would demonstrate later that decade, horror is just as much about camp and hyperbolic fancy as it is an enveloping darkness. 

There’s plenty of that too—“The Evil Eye” might just mark the birth of dungeon synth with its moody, atmospheric, bubbling electronic sounds that drip like they’re in a dank cave. Its pensive melody advances with trepidation from room to room as if being watched. “Witch Trial” begins with a melody that would not sound out of place on Plantasia, but the order of the natural world that he evokes later on that album gets disturbed and thrown into an unpredictably tense climax here, with an insistent drum machine beat that foretells Bauhaus’ “Bela Lugosi’s Dead.” Finally, album closer “ESP” leans into the sinister for one last disorienting minute. 

Electronic music has always had a close relationship to the macabre, dating back to the theremin’s use in sci-fi and horror scores of the 1940s and 50s, or as a more Canadian example, Myron Schaeffer’s use of his hamograph in the 1961 film The Mask. Garson’s sonic explorations on this record anticipate the specifically synth-heavy horror of Goblin, John Carpenter, and frequent David Cronenberg collaborator, Howard Shore. 

At first impression, Black Mass may seem leagues away from the rest of Garson’s work. But if there’s any throughline in his discography it’s his ability to take on a concept—be it the signs of the zodiac, reinterpretations of the musical Hair, music for plants—and completely live in it to do it justice. While we know albums like The Zodiac: Cosmic Sounds and Plantasia were ideas pitched to Garson that he carried out thoughtfully, how he arrived at the concept for Black Mass is a little less clear, and perhaps will be illuminated by the liner notes in the album reissue Sacred Bones have slated for November 2020. 

It’s a path that even eludes his daughter Darmet. “I don’t know how he conceptually got to those places. I have no idea,” she explains. “I think that anybody that pitched anything to him, he could write music for.”  Garson’s mercurial aspect lies at the heart of his creativity, and it’s something he couldn’t truly express until he had a Moog in his hands. 

Correction: An earlier version of this article described the west-coast school of synthesizer thought as “very much against voltage-controlled synthesizers” and also characterized a Buchla solely as a “mess of wires” when that was not a main distinguishing feature between that make and a Moog.

Untradition
Dark Summer
Independent
Toronto, ON
RIYL: Daniel Caesar; Prince’s “The Cross”; Slash laying out a guitar solo in front of a white church in the desert 

For anyone reading this in 2020 it’s abundantly clear why this album is called Dark Summer: Even as restrictions eased and cases of COVID-19 fell (albeit briefly) it was hard to not feel as though I was watching summer pass me by from my apartment window. Untradition’s latest begins in that headspace, with shimmering piano lines and moody guitar establishing a heady interiority. The Toronto artist’s own vocals run like an inner monologue, urgent and determined. 

“40” doubles down on that front with a repetitive groove and lyrics that fixate on Untradition’s own struggles: uncertainty, nerves, insomnia, among others. Then with the bombast of a gospel chorus, he sings the lines “pain, peace, love, loss, right, wrong, move, on,” like a reassuring mantra, with guitars chugging along in approval. Whatever air of self-doubt remained gets annihilated by swelling strings, impassioned organ and a kickass guitar solo to end all solos. 

Dark Summer is as much about breaking through moments of foggy uncertainty as it is a meditation on faith and a reverence for the creative process. This is a sharp, maximal record that cuts through the darkness in thoughtful and rewarding ways. 

– Michael Rancic

Le Couleur
Concorde
Lisbon Lux
Montréal, QC
RIYL: Choses Sauvages; David Cronenberg’s Crash; flying first class

In his new book On Nostalgia, Edmonton-based writer David Berry describes the potential trap that nostalgia threatens as “a feedback loop that would gradually but persistently turn our own past into a shining perfect gem, precisely the memory we need to get us back on our feet and out in the world, regardless of its relationship to what ‘actually’ happened.” Looking back at the peak of air travel through the lens of loungy disco on their latest album Concorde, Montréal’s Le Couleur deftly avoid such pitfalls by balancing their retro longing with a healthy dose of tragedy. 

It’s easy to see why the Concorde jet is such a rich concept for a band to hang an album concept on: it’s symbolic of the peak of technology, luxury, and sexiness. But by framing that luxury on a path that leads ultimately to death, there’s a morbidity to the material that questions whether or not the nostalgia is aspirational without a healthy dose of melancholy to go along. That sense of balance is further maintained between the heavy concept and the lightness of the music, which is lush and careens weightlessly without ever feeling like it’s on autopilot. 

– Michael Rancic

Clara Engel
Hatching Under The Stars
Independent
Toronto, ON
RIYL: Ora Cogan; Aidan Baker; Ulvesang

Though this album came out in April, with the days getting shorter and as we head toward longer bouts of darkness and cold, it feels perfectly suited for fall. The stark toolkit of voice and guitar that songwriter Clara Engel has always evoked a nocturnal sensibility. With Hatching Under The Stars they lean into those darker proclivities to create a dreamlike expanse that’s among their best work.

For the better part of 16 years, Engel has plumbed the darkness of experimental folk, spinning tender songs that feel indebted to traditional or devotional music while still sounding wholly original. Here, Engel draws on that wealth of experience in an immaculately constructed and produced record. Highlights like “Preserved in Ice (for Marc Chagall)” and “Little Blue Fox” find Engel crafting distinct tableaus of poetic imagery. Their spare instrumentation gives plenty of space for imaginations to take hold, as each song blooms into a stirring beauty.

– Michael Rancic

Basic Instinct 
Late Bloom
Independent
Vancouver, BC
RIYL: HÄG; Divide and Dissolve; languid riffs

Basic Instinct’s Late Bloom arrived on 4/20 like any self-respecting sludge album should. With this release the Vancouver-based duo do more than just adhere to genre standards or cliché – when the smoke clears, Late Bloom is one of the year’s best metal releases.  

Featuring former members of Hard Bitch and Joyce Collingwood, Basic Instinct takes the raw energy of those punkier beginnings to split sludge metal wide open across this record’s six tracks. No one song sounds alike. With a wealth of confident ideas, the band keeps their material consistently sharp. Album opener “Fresh” begins with marching drums and a slow, creeping riff that flips into a churning, black metal ferocity on a whim. Vocalist Carly Glanzberg is just as versatile as the band’s instrumentals: summoning a deep bellow that sounds at ease alongside the low-end her guitar provides, or a quiet coo on the restrained “Dark Turn.” That song revels in the ghostly, urgent tension invoked by percussionist Joy Mullen before turning into a magnificent slow burn.

On Late Bloom, the brand of metal Basic Instinct offer up is molten and malleable in their capable, creative hands. 

– Michael Rancic

Editor’s Note – Issue 1: Renewal

When COVID-19 hit, the opportunities available to music journalists dried up quickly, but incredibly, the music kept coming. Though there was talk at first about how the music industry would pause during the pandemic, the opposite seems to be true. 

Even though the live music industry virtually disappeared overnight, it didn’t take long before you could spend an entire evening moving from one artist’s livestream to the next. It felt nothing like hopping from club to club, but the flurry of activity was a welcome distraction and a sign that you couldn’t just halt creativity. Similarly, “Bandcamp Days”—the now monthly occurrences where the digital music platform and marketplace doesn’t take their share of revenue—encouraged artists to release new music and continue their creative output, benefitting from an outpouring of audience support. Mutating from its original intent to distribute money to artists affected by the pandemic, musicians began to direct funds to causes if they weren’t in need themselves. 

It’s in that same spirit that we’ve founded New Feeling. As a music journalist, it was frustrating to watch all of these great and interesting stories arise while having so few places to write about them. I think many of us feel the same way, as more and more of my peers are turning to starting their own Substacks or Tinyletters. I think we all know what we have to do: if the opportunities don’t exist, then we have to create our own. 

At the same time, there’s no sense in replicating the very models that are not just failing us in this moment, but have failed us continuously for some time. The immediate slashing of budgets and restructuring of departments at the outset of the pandemic served as a reminder of how precarious our situation already was. I can’t talk about the few opportunities afforded to me since the industry was uprooted without also acknowledging that many people, especially, Black, Indigenous, and writers of colour, are not even afforded those. In trying to build something new, it’s imperative that we also course-correct and question what it is we want to take with us and what needs to be left behind. 

In that sense, “renewal” makes a very fitting theme for our first issue. In Leslie Ken Chu’s profile of guitarist and songwriter Hiroki Tanaka, renewal comes in the form of life cycles and the ways in which family often reciprocate care across generations; Jesse Locke catches up with Katie Lee (aka EEJUNGMI), and learns how creativity was key to her ability to process and move on from life-changing conflict; and Daniel G. Wilson writes about how a new, diverse cohort of musicians fundamentally changes their relationship to CanRock and their place in it. 

Renewal is also a good theme to introduce ourselves with. Though I’m proud of the work we’ve done to get this far, I also know that we can do better. That’s the ethos at the heart of what we’re doing. Our ability to build a new, sustainable model for what music journalism can look like hinges on our understanding of what has come before and learning from it. We won’t be successful if we don’t acknowledge that growth and change are a negotiation, whether it’s in terms of our continual striving as a co-op toward big ideas like equity and democracy, or the dialogue we’ve started today between us, the music community, and our readership. I hope you’ll be a part of that conversation. 

Michael Rancic, co-founder, New Feeling

Yves Jarvis
Sundry Rock Song Stock
Flemish Eye
Montréal, QC
RIYL: Moses Sumney; Sandro Perri; Mocky

Another chapter in Yves Jarvis’ colour-theory informed album series, the green Sundry Rock Song Stock, further refines the artist’s sound while artfully still nudging listeners to new places. 

Jarvis’ previous records Good Will Come To You (released under Un Blonde) and The Same But By Different Means were sprawling mosaics of short song snippets. On the former, the songs felt self-contained, but part of a larger whole, emphasising a sense of communion, whereas on the latter it seemed as though Jarvis intended to overwhelm, with some songs ending abruptly and creating a fractured mentality that was reinforced by the album’s lyrics. 

On this outing, the songs are notably longer affairs, and there’s fewer of them. While Jarvis hones in on some of the hallmarks of his lo-fi sound here (layered vocal parts, lean bass/drums/guitar/keys instrumentation, incorporating ambient sounds), every song save for “Ambrosia,” which is completely instrumental, ends with an instrumental coda. These are dreamlike, often synthesizer-led passages that aren’t framed as intrusions of Audet’s pastoral folk but extensions of it. By their nature, these sections allow Audet’s words to hang and be absorbed. On a record that focuses greatly on questioning others’ motivations, the artist not only provides the space for, but rewards that contemplation with kaleidoscopic dreamscapes.

Michael Rancic

Wish Lash
Chaos Choir
Glow Code
Calgary, AB
RIYL: Karen Gwyer; Corinthian; Laurel Halo

Kerry Maguire’s experimental electronic solo project Wish Lash returns with a stunning set of songs that breaks from the artist’s airy ambience for a hard-lined sound that is as engaging as it is unrelenting. 
Wish Lash’s 2018 debut, Altar of Doubt, balanced the momentum of its beats with a billowing, miasmic veil, which touched everything from its synthy textures to Maguire’s own voice. Whereas Chaos Choir feels of an altogether different mindset– it’s driven far more by rhythm and movement. That attention toward the corporeal is a result of the production values here, which are sharp and feel cinematic in scope, you can hear it from the ominous and seething “To The Hilt” to the jet engine purr of “Not Now.” There’s a certainty in the clarity of her compositions now and Maguire leans into it. The album arrives on Maguire’s own new Glowcode imprint, which if it’s anything else like the rest of her output (see also: Purlicue, Crims & FLow, Juice Box), is definitely worth following.

Michael Rancic