I had an interesting conversation on Twitter today. One of those ones where I came away glad I use the service. It made me really consider and forced me to come to a conclusion about something that I think is actually very messy and complicated – and not black and white at all.

For the record, I believe:

– That musicians and composers should have the right to prevent their work being used by organisations (whether commercial, political or religious) whose views are in conflict with that of the artist;

– That artists whose recordings are sampled in songs that become commercially successful should see some appropriate financial reward from that inclusion.

– That artists should NOT have the right to prevent their recordings from being sampled by other artists.

It’s on that third point that Jeff Price, the founder and former CEO of Tunecore and I differ. I’m grateful to my friend Fer Isella for retweeting his original statement, to which I responded.

My position, in a nutshell, is that writing, recording and releasing a song gives you certain rights over that song because of a series of agreements that took place at some point in history. The agreements (codified in copyright law) were settled upon in order to assert certain types of monopoly privileges over certain types of commercial works, in order to ensure benefit to society as a whole. There was not (and never has been) a natural, moral dimension to who owns a song.

I don’t happen to think all of those agreements are still useful, and I think that we over-privilege them when it comes to thinking about how the world should be. They’re merely settlements that are temporally and geographically situated, not divine law.

So – while there might seem to be inconsistency in my position (artists get to decide about some uses of their music but not others), the metaphor of ownership which might make it appear simple is not actually a useful one here. Otherwise, artists might also get to choose who can listen to their music, or who can broadcast it.

The distinction, then, is between ownership and moral right. I think the moral right should extend to how your work is represented and the meanings associated with that piece of work. I think it gets very problematic when you start telling people what art they can and cannot make with culture that exists in the world. Especially since all songs are derivative and build on prior culture in one way or another.

It’s an important distinction – because what Jeff Price says is not that artists have a right to choose whether someone samples their music, but that they should be afforded that right. That as a society, we should decide to allow that choice to be in the hands of the musician whose work is sampled.

I don’t happen to agree – for reasons that I hope will become clear when you read the conversation. For the sake of clarity, Girl Talk (Gregg Gillis) is a recording artist who makes music out of HUNDREDS of samples taken from the whole history of popular music recordings.

Of course, the problem with leaving the solution there is that so much of the commercially released recorded music in the world is ALL rights reserved, and that generally has very little to do with the wishes of the artist. I imagine that not one of the artists sampled by Girl Talk has the right to choose to have their works Creative Commons licenced, even though it would go some way toward solving this.

My point about collage remains. If you have to ask permission to sample a work, then not only does that generate an extra step of bureaucracy before you even get to create something, it also introduces an opportunity for someone to say “not unless you give us money”. For Jeff Price to both “love Girl Talk” and wish to make what Gillis creates both administratively and economically inviable seems a contradiction.

Of course, what constitutes a sample and what constitutes a wholesale ripoff is another question entirely, and not one I plan to address here. But there is clearly a difference between using a 3-second loop or a guitar chord, and simply re-presenting someone else’s work as your own. These are the reasons that we make these settlements, and yet another reason we need to completely rewrite (not amend) copyright law from scratch (and from first principles) in the light of the new technological environment.

These are exactly the sorts of conversations we should be having.

Incidentally, I don’t happen to believe that Jeff Price should have to be asked in order for our conversation to be posted here on my site. In effect, I am sampling his Twitter account in order to make my blog, but I am drawing from material that is already out in the world, and fashioning something else out of it.

That said, if he was uncomfortable about it, I’d take this post down. Seems entirely consistent, after my post about asking The Brummie to stop aggregating my content, even though they had every right to do so.

UPDATE: This just in: Everything is a Remix (Build 2012)