|This man should be a household name|
I’m not going to retell her story here. It’s a great story. You can read about Backxwash:
In Exclaim here.
At NPR here.
In Complex here.
At Bandcamp here.
In Cult MTL here.
In Keep MTL Weird here.
The album was one of three I didn’t want to win Polaris this year, but I’m in the minority, and many people genuinely love the record. I'm not going to tell them they're wrong; art is subjective. Polaris has been controversial since its inception, as it should be. Every single year there are howls about who won and why, for wildly different reasons (Too mainstream! Too obscure! Too new! Too old! “Why does my favourite genre never win?!”). Although Polaris is not supposed to be political, it inherently is, because it’s decided by journalists, and journalists love stories. That’s not to denigrate any of the winners, including this year’s. I’m a big fan of 2/3 of all Polaris-winning records in the prize’s 15-year history, and you and I will disagree over which ones “deserved” to win or not. Hence the inherent fallacy of arts prizes in general.
This year part of the controversy is that Backxwash had to take her album off streaming services because she samples Black Sabbath and Led Zeppelin liberally. As a result, the album is only available on Bandcamp as a free download.
Michael Rancic of the web mag New Feelings (an essential read and welcome addition to the landscape of Canadian music criticism) argues that copyright laws around sampling are a farce that serve to further marginalize independent artists who can’t afford sample-clearance fees, that creativity is somehow stifled because of these legalities. The article brings up a lot of great points.
You should read that piece first: it’s here.
There are many terrible things about copyright law: how it largely benefits the wealthiest rights-holders, how the rules keep changing to benefit baby boomers whose work from decades years ago was about to enter the public domain, etc. And when Rancic writes about AI scouring the internet for random sampling “violations,” that’s terrifying for a few different reasons.
But the fact is, whether anyone likes it or not, once you’re in the public eye you can’t sample easily recognized works from popular music without expecting legal repercussions, and that's been true for 30 years now.
Backxwash made her record when, it’s safe to say, she had no expectation of being featured in national and international press and being interviewed on CBC Radio’s flagship mainstream arts show next to Natalie Portman. Once the album got long-listed for Polaris, the vultures came circling. She could have removed the samples and kept the album on monetized streaming platforms. She chose not to, arguing that the samples were used for very personal reasons and she felt they told a story related to the lyrical themes of the album. That’s fair. I get that. But keeping them on there is a conscious decision to marginalize her own work, financially speaking, in the face of a legal reality--a reality worthy of debate and discussion, but a reality nonetheless.
There’s a precedent here in Polaris history. The Weeknd was an unknown artist in 2010, when he released what he billed a “mixtape,” House of Balloons, exclusively online, for free. It was inventive, fresh and fascinating, and it too made the Polaris shortlist that year, alongside Arcade Fire, Destroyer and Ron Sexsmith. It featured unauthorized samples, including Siouxie and the Banshees, Beach House, Cocteau Twins and Aaliyah. The attention and success of House of Balloons led to a major-label deal and a re-release that cleared all samples (and added songwriting credit); the Aaliyah sample was the sole exception. The album still did very well, and the Weeknd is now an international mainstream star.
Even if House of Balloons had never been legally cleared for official release, it could have been seen as a loss leader: a stepping stone, using samples and given away for free, on the path to bigger things.
Somewhat similarly, Kaytranada became a name in the industry with an unauthorized Janet Jackson remix in 2012 (streamed 10 million + times on his Soundcloud). That opened all kinds of doors for him, including a Juno nomination before he put out his debut album, 99.9% (which won the Polaris, and I’m not aware of any sample issues that album had).
Small, uncleared sample snippets appear all the time in songs of varying levels of visibility. Earlier this year I asked Dan Snaith of Caribou which rapper’s voice appears all chopped up on his track “Sunny’s Time”; it’s from his new album Suddenly, which was also on the 2020 Polaris shortlist. He wouldn’t tell me, because he didn’t clear it. He did, however, clear the old, obscure soul song that provides the hook for “Home” (and I doubt anyone related to the original artist got royalties, because of crooked old publishing deals). But the “Sunny’s Time” sample is twisted beyond recognition. Is that “fair use” but the melodic hook on “Home” is not? Are both further examples of pillaging African-American artists? These are questions I don’t have answers for. “Fair use” is wide open to interpretation. But that’s where Backxwash got burned.
Backxwash’s samples in question, Black Sabbath and Led Zeppelin, are easily recognizable. Other samples on the album are not. Were I in court, I would argue that sampling Ozzy Osbourne’s voice--from the song “Black Sabbath,” howling, “Oh god, god, please god help me”--on the title track is fair game. It’s a small component of the original song in question; not the melodic hook, not the chorus, not a defining feature. Repurposed in Backxwash’s music, it’s incredibly effective. The last 10 seconds of the same song samples the opening of “War Pigs” straight up. It doesn’t add much to the Backxwash song, it’s more of a quick nod to an obvious influence. It’s superfluous. For all the legal hassle, it could easily be cut. Or simply re-sung by anyone who can do a passable Osbourne imitation; it's not like there's a copyright on that phrase.
The Zeppelin sample is on Backxwash’s “Adolescence,” the drum break from “When the Levee Breaks,” which you’ve heard even if you’re not a rock fan. Beastie Boys, Eminem, Dr. Dre, Ice-T, Neneh Cherry, the list goes on. But who’s done it since 2000? It’s a cliché at this point. Apparently Beyoncé used it on “Don’t Hurt Yourself,” from Lemonade, but it’s cut up, used only on the chorus and hardly recognizable (I didn’t even realize it was there until researching this). It’s bare naked on the Backxwash track. Small wonder that lawyers came calling. The entire track is less than 90 seconds long. Is it really that important to this album? I would argue the sample is a red herring, drawing unnecessary attention when there’s a whole lot of other things to discuss in this artist’s work, including her other, more creative samples.
There’s a rich irony here, too, in that Zeppelin--and many white musicians of their generation--often lifted African-American songs verbatim and claimed all songwriting credit (see: Zeppelin vs. Willie Dixon, or Beach Boys vs. Berry, or Gainsbourg vs. Olatunji, or, or, or...). Should anyone care about ripping off Led Zeppelin? But the principle holds. Nile Rodgers and Bernard Edwards deserve credit for “Rappers’ Delight,” which their lawyers quickly sought and got, back in 1980. Rick James deserves credit for “Can’t Touch This.” Clyde “Funky Drummer” Stubblefield should have died a multi-millionaire, instead of having his friends hold fundraisers to pay for his kidney operation. That most people don't know his name is a crime against music.
There are many creative reasons to use samples of popular songs. In 2020, I’m not convinced using them as a hook for your own song is one of them. That was different in hip-hop’s infancy, when sampling records birthed a whole new genre of music made by disenfranchised people, and necessity birthed invention. By the time of its Golden Age, I loved A Tribe Called Quest, but “Can I Kick It” bothered me just as much as “Ice Ice Baby,” because it seemed like a lazy shortcut. Ten years after that, the electronic artist Mr. Scruff lifted Moondog wholesale and made a mint licensing the track to every ad agency, which was just as bad as ’80s novelty act Jive Bunny and the Mastermixers, who simply put a medley of ’50s hits to a dance beat (a big hit at weddings). I was a huge fan of DJ Shadow’s Endtroducing until I actually heard his source material, David Axelrod et al, and realized how much he lifted straight-up. Obscurity worked in the crate-digger’s favour back then. It’s still an impressive record, but now I admire its Kid Koala-esque technique rather than its originality or composition. (Kid Koala's first tape, which freely sampled Bjork, Ryuichi Sakamoto and others, was never sold commercially but it landed him a record deal and is available, PWYC, from Bandcamp.)
It’s now 2020. Home recording equipment and software has never been cheaper to obtain and easy to use, especially if you’re not recording acoustic instruments other than your voice. It’s not impossible to make great music, even award-winning music, out of nothing.
Not being able to sample popular records in no way impedes someone’s creativity. It should spark even more creativity. Dig deeper.
Let’s give Backxwash the final word, in an interview with Erik Leijon for Complex Magazine: “I was experimenting to go sample-less, but as I started making these beats, they sounded cool, but the idea of the sample is telling a story, and I miss telling those stories ... With the samples, I’m connecting to those sounds. But [the sampling controversy has] changed the way I approach music. The other day I did make a beat with a Diamanda Galás sample. If I use it, I’ll just have to approach them and see how much they want for it. Now I’m going to look for more obscure sounds and field recordings and friends. That’s how I’m going to do it.”