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.”