Pay to Play
Who owns a song?
In Western music there are 12 notes, a handful of note values (whole, half, quarter, et cetera) and only so many ways that they can be arranged and combined in different rhythms -- making something completely original virtually impossible. The use of samplers, which directly borrow from source music as much or as little as the operator desires, muddies the ownership question even further. For example: Was "U Can't Touch This" a new song, a different version of Rick James' "Super Freak," or a collaboration between James and M.C. Hammer?
Britain's Lo Fidelity Allstars present a new twist on this dilemma. Their breakthrough song, "Battleflag," from How to Operate With a Blown Mind (Skint/Columbia), is a remix of a song by Seattle duo Pigeonhed from the Sub Pop LP The Full Sentence. Pigeonhed's "Battleflag" was originally released in 1997 and stayed under the radar of most record buyers, which was good because Pigeonhed singer Shawn Smith copped a bit of a Prince lyric (from "Sexuality"). When the Lo Fis remixed the track for Pigeonhed's remix record, Flash Bulb Emergency Overflow Cavalcade of Remixes, they stripped everything but Smith's vocals and wrote entirely new music. The singing that they kept contained the Prince quote, though the Lo Fis were unaware that any of the lyrics came from Prince. "Battleflag" was later remixed a second time by the Lo Fis, with the lyrics of the short guy from Minnesota taken out; that is the version that appears on the Lo Fis record. (Lucky for Pigeonhed, who never paid Prince for the use, he never heard their version.)
So whose song is "Battleflag" now? If the Lo Fis had kept the Prince lyrics, the Purple One probably would have taken all of the publishing money, even though it was only a rehashing of his lyrics and not his voice. In Blown Mind's liner notes, a little p in a circle and the words "Sub Pop" appear just below "Battleflag feat. Pigeonhed" -- meaning that the song's copyright is held by Pigeonhed and its label.
Phil Ward (a.k.a. "the Albino Priest"), de facto leader-DJ of the Lo Fis, understands the game, but it doesn't make him any happier. Speaking during a break from recording the Allstars' next record, he halfheartedly complains about not seeing any of the dough from his band's first hit. "All the publishing [money] goes to [Pigeonhed]; we're not making a penny off of it," he explains. "It is a bit sickening because it looks like [it's going to be] the biggest thing that we're going to have."
Typically a band sees no profit from its records until it sells more than 500,000 copies. In contrast, publishing money is immediate and usually handled outside of the confines of the record company. Whoever owns the publishing has the ability to license the song, so when "Battleflag" was recently used in The Mod Squad and Forces of Nature, Pigeonhed probably garnered high five-figures from each. When a sample of a song is used, it must be licensed in the same way. Generally a sampled artist is listed as a cowriter for a song, receiving part of the publishing money or an up-front dollar amount.
"It's the nature of the music we make," he continues. "I was looking at our publishing statement, and I think we've paid out 50,000 pounds [approximately $81,000] for samples so far. It's quite silly. I don't mind paying people, especially if it's some old '50s or '60s soul singer who probably at the time didn't make a penny from the recording. I think it's fair enough that they get some money, get their dues. But it's when you sample the big acts, the ones that have their lawyers and the publishers -- they're the ones that take you to the cleaners. It gets a bit annoying when you've sampled one bar of a groove that you've reversed, cut in two, and chopped around so it hasn't gotten any resemblance to the original sample, but you have to pay anyway."
Ward's frustrated take on song ownership doesn't do much to clear up the debate. He loves Smith's vocals on "Battleflag" but insists that, because the Lo Fis created totally new music, they should be given partial credit. He didn't fight it out with the band or Sub Pop but is nonetheless concerned with the financial issues. "I know that we took off all the original music, but without his vocals the song wouldn't be the same song, we'd never deny that," Ward says. "The music we wrote is really catchy and suits the song, but his vocals are amazing," he gushes.
The Lo Fidelity Allstars were originally just DJs spinning records at parties. But shortly into their career they began creating music on their own as something to throw into their sets. Ward hooked up with singer Dave (a.k.a. "The Wrekked Train") in 1996, and the two did some home recording. It worked so well they put together a band (now including Andy "A One Man Crowd Called Gentile," Johnny "The Slammer," Martin "The Many Tentacles," and Dale, a.k.a. "Pelemaloney") and promptly got themselves signed to Skint, the British big-beat label and home of Fatboy Slim.
The Allstars released two singles, "Disco Machine Gun" and "Kool Roc Bass," to the praise and delight of fellow DJs, clubgoers, record buyers, and the ever-frothing UK press. The Best New Band award from British music tabloid New Music Express followed in 1997. Soon the Lo Fidelity Allstars set their sights on America, a land that has always presented a challenge for British bands on the make. The Lo Fis were rightly anxious and apprehensive about their prospects, having been told firsthand by others who had tried and failed that breaking in the U.S. is a Herculean task. It didn't calm their nerves when the Wrekked Train abruptly quit the band on the eve of its coming to America. But it did help that the band had the good fortune of following on the heels of the Chemical Brothers, Prodigy, and Fatboy Slim, who opened Yankee ears to electronic music.
This British wave has translated into a growing electronic underground in the U.S. "It's almost like the American rave scene is happening ten years after it happened in England," Ward says. "We come over here, and we see drum 'n' bass shops sprouting up all over America. It seems like you are really picking up on the dance thing now a lot more. In England a few years ago, we'd hear stories [about] America, [from English electronic] bands saying, 'It's really hard to do this stuff.'"
The Allstars' success has meant that they can afford to pay for more samples -- part and parcel of doing business now -- and their rising stature means that they have to give credit when due. "U Can't Touch This" gives songwriting credit to both Hammer and James, which makes sense because the entire song is built around the James track. But what about when someone samples a horn riff for five seconds in a five-minute song -- what percentage of the song should the original artist receive? "It's quite annoying when we sample stuff and then you hear some guitar band ripping off a song from the '60s almost wholesale, just changing a few words and changing a few notes, and they probably don't have to pay a penny for it," Ward complains. "We'll sample one bar of somebody's record and have to pay, like, 5000 pounds [$8100 dollars] for it. That disgusts me, because there are guitar bands out there that sound like bands from ten years ago; they get away with it, and we sample one bar and lose our royalties from it."
Now, as the Lo Fidelity Allstars work on the follow-up to Blown Mind, they hand the tapes right off the tape machines to lawyers. "As soon as we finish a song, we give Skint Records the songs we sample, and they start clearing them now, six or seven months before the record comes out," Wards says. "It can slow [the recording process] down, but we've got a totally different approach; we just clear the samples as the tracks are written. Hopefully the last track we write hasn't got any samples in, 'cause that might delay it." He adds that the band is doing the songs with the "awkward" samples first, in case there are problems, "so we can get the samples cleared, and if we have to rerecord we can."
Though Ward was careful not to mention any specific song by name -- to ensure that the lawyers will be the first to hear about it -- it's certain that the band won't shy from using high-profile samples. As more bands use samples, the issue of ownership will become more complex. Though the Supreme Court ruled that samples had to be paid for -- when Gilbert O'Sullivan sued Biz Markie for borrowing "Alone Again (Naturally)" for 1989's "Just a Friend" -- exactly who owns a song is a question that even the artists may not be able to answer.
The Lo Fidelity Allstars are scheduled to play at 9 p.m. Tuesday, May 18, at Respectable Street, 518 Clematis St., West Palm Beach, 561-832-9999. Tickets cost $10 in advance, $12 day of show.
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