[Photo of Chuck D. by Benjamin Franzen]

Holy awesome! FMC pal Kembrew McLeod just published a piece at the Atlantic Online about the nail-biting he does over the music uses in his documentary, Copyright Criminals.

The film, which Kembrew co-produced with Benjamin Franzen, looks at the history of music sampling, and describes how legal precedent and licensing structures make it expensive and time consuming to release legit, sample-based recordings. For example, albums like Public Enemy's classic It Takes a Nation of Millions to Hold Us Back — which is in the Library of Congress as an important cultural work — could probably not be made today, at least not legally. Kembrew:

As we document in our film, the sample clearance system that emerged in the early 1990s put the brakes on this type of music making. Chuck D once told me that a Public Enemy song that contained 20 short samples would more or less cost 20 times what it would take to sample a single chorus of someone else's song.

Why? The music industry believed that the law didn't distinguish between copying one second or half a minute of a sound recording. Therefore, record companies now insist that every fragment of sound needs to be cleared, something that fundamentally altered the aural evolution of hip-hop music. The more complex you make your sound collage, the more impossible it is to share with the world. And in the course of documenting the legal and cultural history of this art form, Ben and I are risking being sued.

He also talks about how the music uses in his own film might not be 100 percent street legal:

Our documentary isn't as good as a classic Public Enemy album, but it shares a key characteristic: it's made from fragments of a few hundred copyrighted sources. If Ben and I tried to clear everything in the film, Copyright Criminals would be prohibitively expensive to make. In other words, we made a film that tries to educate people about the ill effects of the copyright clearance system, but that very same system muzzled our ability to show how crazy this state of affairs really is! Somewhere, Kafka is having a laugh attack. . .

. . .so, how did we pull it off? Two words: fair use. This U.S. statute allows you to quote from copyrighted works without permission for the purposes of education, commentary, criticism, and other transformative uses. In 2005, the Washington, D.C.-based Center for Social Media worked with documentarians to develop and publish an influential document that helped strengthen fair use. The Documentary Filmmakers Statement of Best Practices in Fair Use provides clear guidelines for quoting copyrighted content in ways that documentarians considered fair.

But fair use itself is hardly a get-out-of-infringement-free card:
Obviously, not everything is a fair use, and when making Copyright Criminals we were very judicious in our decisions about what fell into this category. Also, there are some downsides to relying on fair use. It's merely a defense you can invoke after being sued, and intellectual property cases can cost hundreds of thousands of dollars to litigate. Nevertheless, fair use opened doors for us that would have otherwise been slammed shut, so I'm not complaining.

As much as we'd love to keep, um, sampling Kembrew's article, you really should read it yourself. We're not just saying this 'cause we dig Kembrew, but it's one of the best overviews of this issue that we've come across.

If you really wanna dig into the sampling debate, you'll want to check out our upcoming book, Creative License, co-authored by Kembrew and FMC Board member Peter DiCola. Look for it on Duke University Press in 2011.