by Sean Maloney
And yes, somebody out there has a meritorious copyright claim, but frankly I don’t think it’s Sony Music. Sony Pictures Classic, who distributed the film Beats, Rhymes & Life (which is sampled on the GS album), might have a claim. The artists and labels sampled on the album definitely have claims they could file, but the idea that Tribe is the sole source, that the album just jacks beats wholesale, is ridiculous and dispelled with a couple of moments of listening. And while I don’t really think that the album falls under “fair use” as the band advocates (see full statement below) just because they are posting it for free and aren’t see monetary gain from the vinyl pressing, I do think Sony is overstepping its bounds and trying to bully a small, independent artist. Ya know, pick on someone your own size and all that shit.
Our copyright system is a mess and needs to be retooled. I understand that there is a need for copyright on intellectual property — it’s a necessary thing — but I think the system currently in place is distantly removed from the realities of how music is made in the 21st century. We need a system in place that allows for the use of samples in the creative process AND makes sure everyone gets paid. It needs to be mandatory, and it needs to work on a sliding scale — yes, you have to pay for the works that you use, but pay-outs are proportional to in-take. Or even a dedicated space where members pay-in to post their sample-based work and not fear getting sued. It’s the 21st century — we have the technology and the know-how, we can foster art rather than litigate it out of existence.
Which brings me to my final thought: Why isn’t Sony hiring the Gummy Soul crew? I’ll admit that I’m not the best capitalist, but it seems like if you find a person who has found creative, potentially profitable uses for your back catalog, it might be better to embrace them than to alienate them. Yes, protecting copyrights is important — and it’s been a while since I graduated from MTSU's RIM program, so maybe it's changed — but isn’t the whole point to exploit said copyrights? It seems like a better use of time and money to find constructive solutions to these issues than to just let the legal team do all the thinking and keep things firmly in antiquated modes of thought. But then again, I’m not a very good capitalist, and I’m certainly not a lawyer.
Check out Gummy Soul's response to this bullshit below.
Dear Sony Music:
Thanks for reaching out. The fact that our small independent label warranted the resources of your legal team speaks to our work ethic and we appreciate the validation.
In response to your copyright infringement claim over Gummy Soul's Bizarre Tribe; A Quest To The Pharcyde by Amerigo Gazaway (“Bizarre Tribe”), understand the vast majority of the samples used to create Bizarre Tribe were not taken from the catalog of A Tribe Called Quest (“ATCQ”). What your diligence failed to uncover is that Gummy Soul is not in the business of merging one artist’s instrumentals with vocals of another. Had one of the six Sony attorneys copied in your email deemed it necessary to listen to Bizarre Tribe before pursuing legal action, you would know that our projects are much more nuanced.
To be clear, the re-orchestrated instrumentals on Bizarre Tribe were sourced from the original jazz, soul, and funk recordings SAMPLED by ATCQ, allowing Amerigo to create his own, distinct production within a similar framework. Given the brief and limited use of ATCQ material on Bizarre Tribe (around 2 minutes of material out of a 55 minute album), and the method by which our reinterpretations are created, it is clear that Amerigo's effort is protected under the fair use exception of copyright infringement.
We would further add that the presence of documentary style sound-bites, interviews, and news clips included onBizarre Tribe to provide a narrative of the group’s history and commentary on their work only further protects us under the fair use exception, undermines your claim against us, and provides a clearer distinction as to the uniqueness of what we do at Gummy Soul. As you know, Sony is no stranger to the fair use exception as you have relied on it many times yourselves. Most recently when Sony Pictures was accused of copyright infringement by the Estate of William Faulkner, a member of the Sony legal team stated:
“This is a frivolous lawsuit and we are confident we will prevail in defending it. There is no question this brief reference (10 words) to a quote from a public speech Faulkner gave constitutes fair use and any claim to the contrary is without merit." *The quote in question is actually a passage from Faulkner’s book, Requiem for a Nun.*
With the defense presented in your statement, either Gummy Soul and Sony Music are both protected under our shared interpretation of fair use, or you believe the law should apply differently to small, independent record labels than it does to giant, mega conglomerates like Sony Music.
As to your charge of offering this product for sale, we do not, and have never, sold the album in any capacity be it physical or digital. We bear no responsibility for the vinyl bootlegging of Bizarre Tribe, nor do we receive any monetary benefits from their sales. The majority of our digital products, including Bizarre Tribe, are offered free of cost and is stated as such on any platform for which we control and have made Bizarre Tribe available.
In that regard, it is worth noting that our tiny label, with limited budget and resources, has clearly demonstrated the existence of a market for our unique brand of deconstructed reinterpretations. As such, instead of repeating the industry's history of perpetual catch-up while forward thinking start-ups like Gummy Soul find new and innovative ways to create art and leverage digital media to our advantage, take this opportunity to stop the war on artists like Amerigo and their pursuit of creative fulfillment by encouraging creative expression and alternative revenue streams for yourartists.
If a shoestring label with no employees other than a label manager, the two artist co-founders and a part-time contributor were able to build a 60,000 person email list, earn over 100,000 in downloads, garner your attention and that of countless mainstream publications and marque music outlets with our unique projects, why not leverage our success to your benefit while helping to push a reasonable dialogue for copyright reform?
Gummy Soul would welcome the opportunity to work with Sony in a mutually beneficial capacity. In an effort to be proactive, we offer the following "everyone wins" model as a helpful starting place for you and the other industry powerhouses who repeatedly go after those that are shaping this industry’s future. Rather than wasting your resources on an expensive lawsuit, apply those resources to purchase the rights to Bizarre Tribe to distribute and promote the project yourselves. In doing so, you would effectively provide a solution where all parties, including Sony, the original sampled artist, and emerging artists like Amerigo would benefit.
While we have taken Bizarre Tribe down to avoid a merit-less and costly lawsuit, you should know that we have placed a copy of the album in the archives of the Center for Popular Music at Middle Tennessee State University. It will now be available indefinitely for research under “fair use” provisions, fully keeping with the Center’s mission “to promote research and scholarship on American vernacular music and to foster an understanding of the nation’s diverse musical culture and its global reach.”
And if you haven't heard the record yet you can check it out here. Just don't tell Sony.