Jeff Chang & Angus Batley Article: Are Record Companies Racist Against Hip Hop Acts By Refusing To Release Greatest Hits Packages?

Monday, October 11th, 2010

Hip-Hop, Copyright + Cultural Legacy, Part 1 :: A Conversation With Angus Batey

Angus Batey is a one of the most original and thoughtful music critics and cultural journalists I know. Over the past couple of weeks, we had an email exchange that began as an interview for a piece he was doing on hip-hop reissues. That excellent piece was published at The Guardian, where he writes regularly.

That conversation quickly evolved into a broader discussion on what copyrights are good for and bad for, how the record industry handles Black music and artists, and the role that copyright plays in the way we understand musical and cultural history. Here’s Part 1 of the conversation.

Angus: One of the reasons I’ve heard advanced several times for the lack of a hip hop equivalent of the Beatles Anthology series of releases or a big four-disc expanded, remastered box set of a classic rap album is the hip hop audience’s supposed lack of interest in old music and obsession with the new and with what’s coming next. Do you feel this is an excuse for laziness on the part of major labels, or is the average hip hop fan really not that interested in the music’s history?

Jeff: The people arguing this are either being disingenuous or stupid. The primary market for hip-hop reissues is not the 18-24 year-old demographic, it’s the 35-50 year-old demographic, just as it is for the rest of the reissues market.

Where I go off the rails is when I begin to hear such arguments as a cover for not treating Black music acts in the same way that others are treated. Most Black music tends to fall behind the copyright fences about 10 years after it’s been released.

There’s a cycle that happens to Black music. About 20 years after the music has been released, hipsters and DJs rediscover the music–and champion it once again, oftentimes rewriting the history that comes with it. It happened with jazz, the blues, soul, free jazz, funk, fusion, and now it’s happening again with hip-hop. Hipsters and DJs do two things–they create audiences for previous musical genres and they recontextualize the music at the same time.

This underground economy of hipster rediscovery has lots of upsides to go with its downsides, and it’s worth a longer separate discussion. But let’s focus for a minute on the question of impact. I find it infuriating that right now it is impossible to find De La Soul’s first 6 albums for legal download on iTunes in the U.S. The last one came out in 2001!

Yet major labels would never let a Jackson Browne album or an obscure new wave band with primarily local appeal, like Translator, go out of print. That’s not to diss Jackson Browne or Translator, both of whom I’ve liked, it’s to make the provocative argument that major labels place a low value on Black music not currently on the pop charts.

Angus: Why, do you think, hip hop history has been so neglected by the same music business institutions that are so very alive to the commercial up-side of exploiting their catalogues in other genres?

The reasons I’ve been given, at various points, include the questionable legality of reissuing material based on samples that probably weren’t cleared properly at the time and the ruinous costs involved in going through that process for a reissue; the lack of interest of the hip hop audience in old music; the lack of interest from artists in helping compile and promote reissues of their old records; the collaborative nature of a lot of rap records – guest emcees, various producers, etc. – and the lack of a watertight set of paperwork to ensure someone involved won’t sue over their share of reissue royalties; the pointlessness of doing a reissue when there may not be out-takes or other material to add to it which would increase its value to the potential purchaser.

Jeff: There are three broad reasons as I can see:

1) Structural Change
First off, the irony of global consolidation is the birth of the corporation as oversized amnesiac baby. It’s a big, slobbering toddler that can’t walk or even remember what it learned just yesterday. In real terms, corporate consolidation means that vast libraries of music are now behind copyright fences. But most of the institutional memory in these companies has long been downsized amidst corporate mergers and restructuring. The folks left–or the unlucky ones coming in–have no clue as to what is in the vaults or how to put it to use.

2) Market Failure
The reissues business remains overly fixated on white Baby Boomer tastes. The industry either ignores or condescends to post-Boomer tastes. It’s left up to indies and enterprising artists and managers who figure out how to make it work–like Traffic Distribution, Universal Sound/Soul Jazz, Stones Throw, or even Duck Down.

3) Copyright Hysteria
The Public Enemy Def Jam boxset is a perfect example. Their catalog remains influential, they still demonstrate proven commercial potential, and they did all the work of putting together their own boxset, only to have Universal nix the project presumably because they were worried about publishing and sample clearances.

What we are left with is not quite a racist conspiracy. But the accumulated devaluing of Black music works like institutional racism–all of the little things add up to a vast and widening hole in the American memory about the cultural legacy of Black artists.

Angus: When I see phrases like “copyright fence” they’re so often being used by people who seem to want the dismantling of copyright law in its entirety that I suppose I instinctively move to shore up some elements of those fences. That said, I always wince when I hear a copyright defender claiming that sampling is parasitical of “real” creatives. There’s so much misunderstanding and consequent mistrust in this debate that even working out what the middle ground might look like is hellish difficult.

Robust copyright law, interpreted logically and with understanding of different forms of creativity, is surely the least we have a right to expect in the 21st century. Creators need not only to have the rights to their work, but access to the legal mechanisms that exist to defend those rights adequately.

The main problem as I see it at present – and this goes across the board, it’s not just about sampling – is that access to those mechanisms is restricted by economics to conglomerates and wealthy individuals; this perpetuates the division by allowing a group of folks that the British technology writer Andrew Orlowski calls the Freetards to continue portraying copyright as an exploitative tool by which corporations ring-fence their profits.

All that said I really do feel for the original artists and wouldn’t want to ride roughshod over their rights. I just think there has to be a sane middle-ground between this “don’t do it just in case” over-caution and the “there shouldn’t be any laws preventing sampling, all music ought to be fair game” postures of the Freetards.

I wrote some sleeve notes for the DVD release of Shadow and Cut Chemist’s The Hard Sell a couple of years ago and found myself arguing for a kind of airplay-like system of royalty payment/compensation based on giving the original artist a cut that was a function of how many seconds – or fractions of a second – their work appeared in a piece like that.

Certainly the way things currently work, where the figure that will permit clearance isn’t based on anything other than the number the original artist’s publisher has in their head, isn’t doing anyone any favours. Here we have potentially new income for the original artists that won’t ever materialise because the law as it stands doesn’t make it worthwhile for someone like Chuck D to jump through the various hoops and thus the music never comes out. Though I realise that I’m arguing here for changes to the laws of many different nations, not merely for record companies to work harder.

Jeff: I agree with you regarding compensating the original artists. I think one thing everyone who cares about artists and creativity—whether you’re an ethical intellectual property lawyer or you are a hip-hop artist who not only samples but is being sampled as well—agrees upon is that a balance needs to be struck between allowing creativity and compensating creatives.

The solution that you proposed are what are called compulsory licenses out here—they would work exactly like mechanical royalties, on a fixed basis. Everyone on the panel agreed that’s what we need—but I expressed huge pessimism about getting such a policy passed. In the current situation there’s no incentive for the publishers and labels to fix the problem on behalf of the artists. They make too much money exploiting the situation now.

It’s the usual market-gone-crazy stuff. Artists are often left out of the deals that get cut, and at the same time, labels and publishers are only working on the 0.5% of copyrights that are worth a fortune. Included in all the rest of it is the landfill stuff—the records no one wants to ever hear again, including the artists who made them!—but also what I was calling cultural legacy. Cultural legacy is piled up with the garbage behind the copyright fence.

Government is the only place where this stuff can be worked out to the benefit both artists and the public. But the only time this stuff gets taken up in Congress is when corporations want to extend the copyright fencing or when publishers, radio and media companies, and labels can’t work out a price agreeable to all sides to do the business. It’s fucked!

And the point you make about this being a global situation is serious. Culture is one of the places countries are still waging huge battles in international bodies that don’t get talked about. But in this new economy, the debates over cultural things like movies and music are related to and just as important as, say, the debates countries are having over plant seeds.

Hip-Hop, Copyright + Cultural Legacy, Part 2 :: A Conversation With Angus Batey

Photo by the great Glen Friedman.

Here’s Part 2 of my conversation with the fine journalist Angus Batey of The Guardian. (Part 1 is here.) Angus was pulling together material for a piece that came out last Friday on hip-hop reissues.

In this clip, we get deeper into the lost Public Enemy Def Jam boxset, geek out on what hip-hop boxsets could include, and speculate on what this all means for how we pass on our shared musical and cultural history.

Angus: Public Enemy has got a box set out now, but it’s just of the post-Def Jam material. I imagine those issues over clearances for previously unreleased material will remain an issue for Universal. Chuck D has told me that it would have been easy to do under the Def Jam/Sony relationship because there was – to paraphrase him – a very different set of corporate instincts regarding the risk inherent in that kind of project; but after Def Jam was bought out by Universal there was a change in attitude.

He also talked about something he called “new discovery” which would happen if and when anyone went back to the original PE master tapes and remixed or remastered them: there are sonic elements on those records which are unidentifiable, and indeed pretty much inaudible, in the finished and originally released versions, but without which the tracks don’t work – yet the legal onus would be on the company releasing a remaster to go through the multitracks and ensure every last thing was cleared. Chuck said those PE albums didn’t just contain samples from hundreds of records – they came from thousands.

Full clearance would be impossible under the present free-for-all rules; and there is absolutely no incentive for any of the people in the clearance industry to have those rules changed — unless, of course, it could be definitively demonstrated that a flat-rate clearance system would enable so much more sample clearance to take place that the overall sums involved would mean the whole pot of money accruing to each entity along the chain would be greater than that generated through the present system.

Here’s a different question: As a music nerd I yearn to be able to buy something like a box set of “3 Feet High and Rising” that includes all the b-sides and remixes but also the out-takes, the demos, the failed skit ideas, and has a big booklet with new interviews with the band and Prince Paul about how they made the record and what was going on in their heads at the time.

Yet when I’ve talked to them – and other artists behind similarly iconic releases – they often say that there wasn’t anything left over, that what went on the record was pretty much it. I don’t get the sense that there’s something sitting there in the vaults waiting to be discovered, like Joel Dorn did with the Coltrane box set when he found all those alternate takes of Giant Steps on the master reels and you can get to listen in on the masterpiece taking shape – but I also don’t get the sense that anyone in the labels, or indeed often anyone in the bands, cares about finding it if it does exist. Was hip hop so different from every other musical form that we need to find new ways of thinking about its history, of re-telling its canonical stories? Or do you think there’s an untold history out there that hasn’t been excavated properly yet?

Jeff: The first part of that question has to do with the process and technology of hip-hop production post-mid 80s. I believe Prince Paul if he says that there’s not much left. It just goes to the fact that most jazz needed to be recorded live in a single take and that artist improvisation was the standard. With hip-hop production everything is structured, written or mapped, then delivered, punched in and fixed in the mix. What might be revealing is, say, if groups recorded freestyle sessions for practice, or kicked 16 on a radio show. But there is a vast—I mean endless—amount of documentation to be done on the pre-mid 80s live performances. I mean like club shows or battles or community center jams. Those tapes do exist and there is a market for those, but I know of only a few people who have even thought about trying to go there.

Angus: Over the years, talking with artists who are very aware of the wider historical context of their music such as Chuck D or ?uestlove or Shadow, it’s become apparent to me that the job of curating hip hop’s on-record history seems to have fallen squarely on their shoulders. I don’t get the feeling this is the case with other genres – we don’t expect Ornette Coleman to be the driving force behind a retrospective box set of his Atlantic recordings, or rely on Paul McCartney to kick-start a Beatles reissue program. Whose job is it, ultimately, morally, actually, to maintain hip-hop’s history? And what does and should that job entail?

Jeff: I guess the job has been left to us—the folks who sit at the intersection of being artists, DJs, historians, and—uh—hipsters all at once. I don’t think this is optimal at all. We need curators, musiciologists, recording and sound technicians, and yes, label execs and marketers to do this project properly. I would love to make the argument for government support but the political climate is sour and the lack of capacity on the part of our national cultural institutions is dispiriting.

Angus: Are concepts of “history” when it comes to recorded music now just so much hot air? When I was a teenager, once a record was no longer a current release and had disappeared from shops, that was it – there was no way of getting it, so it might as well not have existed. Today, pretty much the whole of recorded sound is available to anyone at any time, instantly – so someone who’s 14 and has just heard about this band Public Enemy for the first time can go to the website and read all about them and what they did and why they were important, can instantly download all of their back catalogue, can see their videos on YouTube, and browse collections of cuttings, features and write-ups that help explain their context.

So to today’s audience it’s almost like there’s no distinction between “catalogue” and “new” material, because it’s all out there and easy to access and available if you want it. Does that mean that the “traditional” record industry construct of repackaging the classic album on the 20th anniversary, etc., is now redundant and irrelevant in terms of the ongoing life of the culture?

Jeff: First off I don’t believe that all of recorded sound is available, although certainly a 14 year-old like mine can be up on many kinds of music in ways we never could have imagined. But I don’t think that—whatever you want to call it, call it the wiki age or the condition of postmodernity—means that a classic album, like a classic book, is any less important as a cultural thing.

It is certainly true that the way that thing is approached and used is different, and that is a real problem for marketers and especially for artists who seek some sort of compensation for their work. It may mean something different as well to the 14 year-old, and that is a lesser problem for anthropologists to solve.

But to get back to the point I began with, most of recorded sound is not free—and there are good reasons why they shouldn’t, ask the artists. The social problem here is the question of cultural memory. Why do we privilege certain forms of cultural memory over others? And what does that privileging do to both the memory and the society that countenances that inequality?