On Valentine’s Day, De La Soul released most of their back catalog for free. Fans rejoiced at the unexpected gift, which included the albums 3 Feet High and Rising (1989), De La Soul Is Dead (1991), Buhloone Mind State (1993), and Stakes Is High (1996) and dozens of rare remixes, B-sides, and instrumentals. The move generated huge amounts of buzz and goodwill, judging by the outpouring of affection on Facebook, Twitter, and around the Web. It will help, no doubt, with the tour they just announced, on the eve of their 25th anniversary as a group.
“I think it's probably one of the ballsiest moves that has ever been made in the history of the hip-hop business,” says hip-hop historian Jeff Chang, author of the book Can’t Stop Won’t Stop.
Fans were particularly hungry for this music. For many years, De La Soul has been sidelined by their inability to make their work available for sale digitally. With the exception of The Grind Date, released in 2004, and a few scattered newer releases, most of the group’s back catalog wasn’t readily available. You can find their albums on vinyl and CD, but you can’t buy the MP3s.
Why couldn’t De La Soul reissue their albums in MP3 format and make them available for a fair price on iTunes? As many of its fans know, the group has a tangled history with sampling and copyright law; a post last week by the advocacy group the Future of Music Coalition offered a useful primer on the situation. De La Soul’s first three albums were classics of hip-hop’s sampladelic golden age—a time when artists sampled liberally and were more cavalier about securing (or not securing) permission to use those samples.
An interesting, if confusing, twist in De La Soul’s story is that their label at the time, Tommy Boy, did clear the samples (or at least the ones they knew about) when the albums were originally released. That’s according to Tommy Boy label boss Tom Silverman, in the documentary Copyright Criminals and the book Creative License, by University of Iowa communications professor Kembrew McLeod and Northwestern law professor Peter DiCola. “It’s a lot of accounting work,” Silverman told McLeod and DiCola, discussing the early De La Soul albums. “You have to pay out on 60 different people on one album. It’s quite a nightmare actually.” There was, however, an infamous sample the label did not clear, from a band called the Turtles, who were sampled on 3 Feet High and Rising. De La Soul and their producer, Prince Paul, used a sample from the Turtles song “You Showed Me” in the skit “Transmitting Live from Mars,” layering the dulcet psychedelic tones under an instructional French-language record. In 1991, the Turtles sued the group for copyright infringement. According to McLeod and DiCola’s book, the case was settled out of court for an amount said to be $1.7 million, though the members of De La Soul have said the amount actually paid out was less than that.
The main problem now isn’t the Turtles, though the costly lawsuit did cast a pall over De La Soul’s legacy and struck fear into the hearts of sampling mavens and record labels everywhere. The problem seems to be that Warner Music Group—which now owns De La Soul’s Tommy Boy back catalog, though it no longer owns Tommy Boy—hasn’t yet done the legwork for the albums to be released digitally. “Warner has not done the sample clearance work necessary to release them,” Silverman told the journalists Peter Kafka and Rob Levine recently in a tweet. (I reached out to Silverman for comment but did not hear back; a representative from Warner Music Group declined to comment.)
As badly as the group, and its fans, would like to see the music available, it would take effort for Warner to make it possible. Releasing De La Soul’s music digitally would require spending the time and money to make sure there aren’t other samples that weren’t cleared initially, like the Turtles song, and whether there are agreements that would need to be renegotiated. A single De La Soul album could have a few hundred samples, all of which needed to be licensed and would need to be scrutinized.
If Tommy Boy cleared the samples originally, what’s the holdup now? A lot has changed since 3 Feet High and Rising came out 25 years ago. “First off, the phrase ‘clearing samples’ is in and of itself ambiguous,” says Howard King, an entertainment lawyer in Los Angeles who represents Metallica, RZA, Dr. Dre, Robin Thicke, and many other major artists. “Because it really depends on for what uses they cleared them. Clearing samples 25 years ago—nobody really thought about digital.” Contracts written in 1989 to “clear” samples for recordings on vinyl, cassettes, and CDs may not cover digital use—the MP3 didn’t exist back then.
“It would depend on the original scope of the license that was granted,” says Lisa Borodkin, an entertainment lawyer in Los Angeles who has worked on clearing samples for Eminem and Dr. Dre. “When people clear samples in the industry—I did this for years in a music law firm—you definitely usually show the artist how the music is going to be used.” David Jude Jolicoeur, better known as Dave, one of the group’s three members, suggested in an interview with Revolt TV last week that the old contracts do indeed lack digital clearances. “It’s just the language that are in contracts that are so old and from so long ago,” he said. “The language in these contracts don’t include digital sales. So we’re working on that now, actually.”