An American Sampler

by Robert Neumann

Thinking of copying someone else's sound for your next MIDI masterpiece? Think again: you may be violating a number of copyright laws. The widespread practice of digitally "sampling" parts from original works has cost musicians thousands of dollars in royalties. START's commitment to MIDI is so strong that we decided to reprint the following article, originally published in the May 1988 issue of Omni magazine. It discusses one way musicians are fighting back: music fingerprinting.

At age thirty-four, music programmer John Mahoney has decided to become a part-time private investigator, a "music fingerprinter" who can electronically determine whether one musician has reproduced sounds from another musicians copyrighted recording. Mahoney's business isn't booming--yet--but he may testify in two copyright infringement cases pending in New York, and other cases are undoubtedly on the way.

In his windowless basement studio jammed with state-of-the-art recording equipment that he uses for his own musical compositions, Mahoney demonstrates how digital sampling makes stealing sounds possible. Digital sampling is done using an electrical device called a sampler, which converts sounds into digital recordings that are stored on computer disks. "I can capture any sound in the universe with digital sampling," says Mahoney. "Once I've sampled [digitally recorded] a sound, I can play it, alter it, do whatever I want to it." Indeed, such digital doctoring has given modern musicians the ability to insert almost any sound--even James Brown's voice--onto one of their own pieces.

Mahoney shoves a floppy disk containing previously sampled sounds into a disk drive and, using the Rolls-Royce of samplers--the Synclavier--he selects timpani from a timbre directory on the monitor. When he strikes a key on the Synclaviers piano keyboard, the sound of a deep-bellied drum resounds from massive wall speakers. He can do the same for any note from any instrument. In fact, he can vary the pitch of each note and stretch and shorten the sounds. Mahoney leans back in his chair and clasps his hands behind his head. "I can incorporate any isolated sound into my palette and mix those sounds into my own creation," he says.

The reproduction of isolated sounds is widely accepted in the music business. Music programmers build large libraries of individual sounds, everything from a note played on an unusual African folk instrument to one that flies off Phil Collins's snare drum. "Part of what you're hired for are your sounds," says Mahoney, who was one of the first musicians to enter the field of music programming when the Synclavier first became popular in 1985. In building a library, programmers may buy sounds from the musicians who created them or sample sounds from compact disks. But that's where Mahoney draws the line. "You could use this technology to cop a melody or rhythm," he explains, "maybe cut up someone else's horn phrase and fly it into your own composition. I don't do that."

Others do copy longer passages, though, and that's where Mahoney's detective work comes in. When he is asked to fingerprint sounds, he must first identify the two passages to be compared. The suspected passage will usually be something that the aggrieved musician thinks sounds "too familiar." That same musician, though, might not remember where the passage occurs in his own composition. Mahoney has to find it and determine if it is a likely candidate for sampling. A sound buried among other instruments or voices is extremely difficult, often impossible, to isolate: It just can't be separated from the other sounds. "But," says Mahoney, "if the sound is laying out in the open and I find it on the other musicians recording, that's a good indication it was lifted. "

Often the samples he examines have other sounds added to them. A horn phrase, for example, might be surrounded by drums. "Then," says Mahoney, "I have to try to filter out what's around the sound. I can get rid of some frequencies, but often they cross over each other, and there's not much you can do."

Once the original and suspect sounds have been isolated, Mahoney uses the Synclavier to graph the characteristics of each sound. After matching the two starting points and setting the opening pitches to match each other, he programs the Synclavier to graph the relative amounts of each frequency that appear in the sounds. If he finds that the two sounds match, it's a clear case of copying.

It looks likely that Mahoney will take the stand for the first time later this year in one or two infringement suits pending against the Beastie Boys in New York. The rap group is currently being sued for copyright infringement for several songs on their album Licensed to ill. The plaintiffs hope that testimony from a music fingerprinter will bolster that of musicologists, who are traditionally called as expert witnesses in copyright infringement cases. If the court accepts music fingerprinting as viable evidence, the door will be open for more suits. But acceptance of music fingerprinting will also mean that the courts will have to grapple with some new and decidedly sticky problems: The sounds Phil Collins gets out of his snare drums are his, or are they? Can a programmer lift one or two of those sounds without infringing on Collins's copyright? In a profession where legal limits have yet to be set, these cases may determine to what extent the recording industry is licensed to sample.

(Editor's note: Several cases, including the one involving the Beastie Boys, are still pending in a US. District Court. Also, a decision is yet to be made concerning the use of music fingerprinting as admissible evidence. )

Robert Neumann is a novelist and Hypercard software developer living and working in New York City.