Why does folk music collector Alan Lomax have a copyright interest in “Takeover” by Jay-Z?

I learned the answer from Creative License: The Law And Culture Of Digital Sampling by Kembrew McLeod and Peter DiCola. It’s a companion book to the invaluable documentary Copyright Criminals. The story of Jay-Z and Alan Lomax isn’t quite as epic a copyright failure as the Biz Markie lawsuit or the story of “Bitter Sweet Symphony” but it’s still pretty absurd.

So here’s Jay-Z’s “Takeover.” Explicit language ahead:

For my tastes, “Takeover” isn’t one of the better Jay-Z songs, since all it does is make fun of Nas. It’s depressing when an artist of Jay’s caliber devotes his considerable creativity to a diss track. Still, the production is pretty powerful. The main samples come from the Doors’ “Five To One.” Jay also quotes David Bowie’s “Fame,” along with various other rap songs. Finally, the sampled line “Watch out, we run New York!” comes from “Sound Of Da Police” by KRS-One.

KRS-One samples a riff from “Inside Looking Out” by Grand Funk Railroad — listen at 6:28.

Grand Funk didn’t write the song; it’s a cover of The Animals.

The Animals didn’t really write the song either. As was a common practice among their British rock peers at the time, they took a folk melody and wrote somewhat different lyrics. The tune they used is called “Rosie,” which they learned from a recording made by Alan Lomax of a chain gang at Parchman Farm.

“Rosie” can’t be said to have any particular author. But Lomax was the first person to record and publish it, so according to the peculiar norms of America’s property laws, he was able to copyright it. Not only does Lomax hold the copyright for “Rosie,” he’s also listed as a co-author of both versions of “Inside Looking Out.”

Here’s where the story gets truly silly. When KRS-One sampled Grand Funk Railroad’s cover of “Inside Looking Out,” he needed the permission of both the owner of the recording and the underlying composition. This is in spite of the fact that the sample is from an instrumental section that Grand Funk added, and that doesn’t reference the original melody at all. And even though Jay-Z sampled KRS-One’s unaccompanied vocal, he also needed to get copyright permission from everyone sampled in KRS-One’s track. Including Alan Lomax.

So that’s how a folk song collector wound up as the legal co-author of a Jay-Z diss track. I can’t think of a better illustration of the copyright system’s dysfunction than that.

The copyright maze is no obstacle to Jay-Z — he has the money, lawyers, and connections to clear whatever he wants. But what about up-and-coming or unheard-of artists? What if they want to use samples? Should the most vital art form of our time be the exclusive province of forty-year-old multimillionaires? And grateful as I am to Alan Lomax for recording and disseminating so much great folk music, I remain baffled as to why he was allowed to copyright it. Our creative heritage deserves better stewardship than our current laws provide.

Update: I seem to have touched a nerve with this post. Jesse Walker posted it on the Reason Magazine blog, and since then it’s also been on Andrew Sullivan’s blog, Metafilter and Techdirt. There are some interesting discussions happening in the comments to those posts. Thanks for linking, everybody!

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