imageGame Boy musician nitro2k01 has taken on the controversy over Crystal Castles, the band that just joined the long line of artists recently appropriating sounds from the 8-bit musical underground.

Get ready, CSIs: nitro2k01 uses spectral graphs to try to demonstrate the Crystal Castles song "Love and Caring" is also ripped off, with beats borrowed from Covox’s "Sunday."

Crystal Castles and Chip Music Copyright Infringements [Gameboy Genius]

Crystal Castles responds to earlier allegations via the 8-bit collective forum. Representative Andy writes:

…songs with Lo-Bat samples were left off the CC album because we didn’t have the sample clearance. Many songs were left off the CD because we needed more time to clear the samples. We are hoping to have the songs on a future release (maybe a rarities/demos/remixes compilation) and would love to clear this with Lo-Bat.

Of course, this is not the way to go about things — and it’s a mistake artists make too often.

You’ll want to get clearance for a sample before you record a song, let alone before you post it to MySpace as Crystal Castles did. I’m also a bit suspicious of the way the band is conducting themselves in general (and again, this is all too common). When the band appropriated an image for album covers and t-shirts from artist Trevor Brown, they claimed then, too, that they hoped the artist would come forward. That’s either naive (it’s not the artist’s job to do that), or a way of intentionally trying to manipulate the artist into accepting the terms they want for licensing.

Further evidence that the band just wants to play stupid so they can do whatever they want: they’ve in fact strung along the artist when it comes to fees. (Check out Trevor Brown’s response on his blog.) So it seems the plan is this: use something, hope nobody notices, then since it’s "already out there", play cheapskates with them on fees.

Let me explain:

  • It’s not legal. We can debate ethics all day, as the nitro2k01 story does, as have comments on CDM’s previous story. But here’s the simple version: it’s only legal if it’s explicitly cleared with the copyright owner, or you follow licensing terms (as in Creative Commons licenses).
  • You will get found out. In the days of the Web, there’s a very short gap between the time when you use something and the owner finds out. This has even happened on CDM a couple of times; I try to be very careful, but once recently an image that hadn’t been cleared or attributed properly by one of our writers had to be corrected.
  • You have alternatives. Part of the reason this debate is so silly is that there are plenty of ways of sampling — made easier by Creative Commons licensing — and other simple remedies, like making your own stuff or hiring techs and artists.

Oh, yeah, and then there’s the fact that Crystal Castles uses a logo that’s identical to Chanel’s (scroll down in Trevor’s post) says a lot.

Again, I don’t mean to single out Crystal Castles. The problem is, there’s too much of this in general. Artists are obligated to follow the law, and moreover, we have a better creative community when people behave ethically and respect each other’s work. So, I will vigorously defend the right of artists to watchdog these situations. And the problem is obviously not any one artist — whether Timbaland or Crystal Castles. (Hey, I don’t want to hear any anti-Canadian sentiments, either. Jeez. Canada is freaking awesome, so relax.)

  • Jeremy

    When a law is broken more and more often, then perhaps it's time to reconsider the law.

    I'm sorry, but I have trouble seeing the malice here. Where are the damages? Is there really a problem here that needs solving? (I mean besides "you broke the rules!", which is arbitrary and lame.)

    The laws are OURS. The people. I don't see a problem here, so I don't like the law.

  • Sizzurp Sippa

    Jeremy:

    Crystal Castles took other peoples songs, dubbed their own lyrics on top, and presented it as their own work.

    Where are the damages? Crystal Castle are a for-profit entity, selling CDs, T-shirts, etc for *MONEY*. The money that Crystal Castle made are the damages! That money shouldn't be going to Crystal Castles, that money should be going to the artists who created the music.

    Do you make music? If Pepsi used one of your songs to promote their product, without paying you, without crediting you for the music, and claimed that they themselves produced the music, you would probably be pissed off! The only difference here is that CC didn't rip off the track to sell another product, the track they ripped off *WAS* the product.

  • http://www.createdigitalmusic.com Peter Kirn

    @Jeremy: not sure I follow. We have listeners and copyright creators alike who are calling foul. And I think the copyright framework DOES establish a clear line between what's right and wrong. There are all sorts of problems with the specifics of copyright law that I agree does need fixing. But even if legal enforcement is difficult for independent artists, I think it's meaningful to have that line. And you're right — the laws are ours. That includes the creators copyright law is designed to protect — including people using GNU/GPL, Creative Commons licenses, and the like.

  • gwenhwyfaer

    > You’ll want to get clearance for a sample before you record a song

    Generally, I think people use the samples, then try to get clearance. Historically, that could go wrong; Chumbawamba had to basically junk and rewrite an entire album (what became Shhh!) because the content of their music prevented them from getting the clearance they needed. However, I think the legal procedures – what you need attribution for, how you get it – are relatively well-established these days, and there's just no good reason for skirting them – especially if you're using music commercially.

    Jeremy: aside from the legal issues here, there's also the issue of a couple of little brats who need to ditch their entitled attitude and learn some manners, and who should (but almost certainly won't) have cringed in embarrassment at the accolades they received for their "originality", knowing that they'd done it off the back of other people's work. Yes, some of the blame can be placed at the foot of the ignorant people who acclaimed them – but not all of it. The fact that they were legally required to pass on that credit, amongst other things, should only add to their shame.

  • contakt

    > You’ll want to get clearance for a sample before you record a song

    That is ridiculous and really not the way any artist I know or have heard of works.

    Realistically, most indie albums selling less than 50k copies don't clear samples. The way it works (for indie labels) when they actually do is: Artist records album, submits album and a list of all sampled songs. Sample clearance lawyer listens and looks at list to discern who they realistically have to worry about suing them. This is determined by the obviousness of the sample and the track record of an artist. For example most sample clearance lawyers will advise to steer clear of Prince, James Brown, Michael Jackson, etc.

    Most indie hip-hop and many indie dance records have uncleared samples. It's the reality of that world. Indie labels don't have the time nor money to clear every sample and realistically they sell so few records they wont get caught and they don't have much worth suing for (save for the threat of a cease and desist or repressing the album w/o a specific song).

    This issue here is ethical. Crystal Castles went beyond sampling and jacked a song – from a peer. This isn't about the law – it's about a very nebulous code that they broke.

    PS: As for the Chanel thing, it doesn't hold up. 80 trillion artists have ripped their logo and a billion other designers. As have all the streetwear brands. I think the real issue here is CC's blatant jack.

  • http://createdigitalmusic.com Peter Kirn

    @contakt:

    Clearing samples after you've done an album, with no idea of what it will cost: bad idea.

    Not clearing samples at all: worse idea. And doubly worse for indie artists as they may not have the time or money to re-record, or the money to deal with legal issues. I mean, why would you ask for this kind of trouble?

    I think what you're saying is true — a lot of people do ignore this. But that doesn't make it a smart or necessary thing to do.

    And how is the CC license nebulous? What part of "attribution" or "credit" would you have to not understand here? I can see arguing the commercial / non-commercial use, but the ShareAlike and attribution aspects are obvious. I guess unless you don't know what the word "attribution" or "share" means. ;)

    The irony here is, a lot of other indie artists WILL agree to affordable terms for licensing if you ask. And I don't see any reason an artist should go around antagonizing other people. It's clearly leading to some bad karma for Crystal Castles.

  • http://createdigitalmusic.com Peter Kirn

    Oh, yeah, and as for the Chanel thing, that to me just shows a lack of creativity. Then again, at least they didn't steal the Creative Commons logo.

  • moonbass

    > You’ll want to get clearance for a sample before you record a song

    Such a pompous statement. This blog is so far removed from MUSIC it hurts. Keep buying all those toys.

  • http://createdigitalmusic.com Peter Kirn

    @moonbass: hey, man, if you really want to use uncleared samples and run the risk of having to ditch/redo your music later, be my guest. In the meantime, troll on.

  • ugga

    i've had this discussion a few times with my gf, i show her the timbaland controvery video (and all the other stuff he ripped off) – and she says "well i get that it's illegal, but that's what DJ's do, i think it's ok" —- aargh, she drives me nuts.

    even if it wasn't about the money, when composing i toss an idea when it sounds similar like something i already know and possibly subconsciously re-composed.

    at least i want to be able to say "I MADE THIS!"

    something else they ripped btw:
    http://en.wikipedia.org/wiki/Crystal_Castles

  • moonbass

    Peter. You are a continually exciting salesman.

  • ugga

    btw, i wouldn't be suprised if crystal castles is a well insured art project.

    that they share the same initials as the licenseis quite suspicious ;-)

  • sef

    Crystal Castles is a Toronto-based band, described by Loud and Quiet as "the most exciting and original band in the world right now"

    (from wikipedia)

    original my a**

  • sef

    I wonder, does Crystal Castles ever actually program chiptunes? do they just sample everything?

    anyone know for sure?

  • contakt

    Mr. Kirn:

    "Clearing samples after you’ve done an album, with no idea of what it will cost: bad idea.

    Not clearing samples at all: worse idea. And doubly worse for indie artists as they may not have the time or money to re-record, or the money to deal with legal issues. I mean, why would you ask for this kind of trouble?"

    Unfortunately, it's reality. Realistically – I would be shocked if Crystal Castles made $44,000 in record sales this year (them the actual band, after everything is charged back, etc). Clearing samples is expensive, time consuming and often unnecessary. Why clear samples when 99.9999999% of the time you don't get sued? Why spend that money when statistically you wont get caught? This is the question any indie label or artist who releases records with samples asks themselves with every release. For many, taking the risk seems to be the better option.

    As for my experience – I have worked at many indie labels over the last 10 years, releasing tiny records that sell a couple of thousand and some that have gotten plaques.

    No artist would clear a sample before making the track though. Why would they? What if the song turns out crappy? What if it doesn't make the final tracklisting? It simply doesn't jive w/ the creative process.

    As for Crystal Castles – what they did was wack and they deserve to be C&Ded for this and the music scene should not tolerate such despicable behavior.

  • http://www.pegritz.com Derek C. F. Pegritz

    I've got one thing to say: WHO CARES? Ooooh, someone sampled someone else's stuff without the original person's consent and now somebody's pissed off and…it doesn't matter one damn bit no matter how you look at it.

    You can get upset over it and raise a stink, but that stink is meaningless. There will ALWAYS be people who "sample first then ask for clearance later," or who never even bother to ask in the first place. It's the nature of digital music. Period.

    I think the offense should ultimately be a matter of degree. For example, if someone sampled a few bars or a beat or something from a song I'd written, whether with or without my permission, I'd be flat-out thrilled. Now, if someone tried to literally take an entire song I had written–beat for beat, note for note–and just gave it a different name…then I believe there are justifiable grounds for a lawsuit. After all, that is all that copyright and Creative Commons licensing are for: to ensure that originators are credited for their works.

    Not parts of their works.

    Not clips and pieces of their works.

    You can get upset and tear your hair out anytime someone "rips off" a sample of some song for use in their own work, but as long as they are not claiming that your original song is theirs, then just deal with it. Someone sampled you and maybe made a couple of bucks off of it–but ultimately, who really gives a shit but you? And why are you even pissed off in the first place?

    I mean, I'm sure Crystal Castles is really celebrating the fact that their album went platinum and they have the number one single on the International Pop Charts by snorting $10,000 of blow off of strippers' asses entirely because they sampled part off of some poor, starving 8-bit musician's chiptune ditty.

    Here's all of my own 8-bit-related music. Download it and do whatever the hell you like with it. Mind you, it's all CC-licensed, so I'd like it if you followed the terms of the license (it's a simple attribution license)–but, hey, I'm not gonna shit kittens if you don't.

  • Johnny Horizon

    Wow. I'm really disappointed in the readership here.

  • contakt

    Mr. Horizon:

    Why?

  • http://www.createdigitalmusic.com Peter Kirn

    @contakt:

    Fair enough. But I suppose that's why so many artists have given up on sampling altogether, given the cost.

  • contakt

    Peter Kirn:

    Commercial hip-hip, I think a lot of people broke away from sampling about 5 years ago (cost was a motivating factor). It is back in vogue again now and there is somewhat of a balance. Dance music to me seems pretty much the same, if not a renewed focus on edits – the NYC scene in particular is great.

    Daft Punk, Kanye, Neptunes, Madlib, El-P amongst others are sampling their a**s off.

    You are right though – labels like Stones Throw and Def Jux for example are clearing samples, so their is no doubt that this risk and the costs associated arent making an impact.

  • http://www.createdigitalmusic.com Peter Kirn

    So are those guys paying outrageous fees for clearing samples — or are records starting to recognize that more substantial sampling (and remixes) actually help to better promote the older discs (i.e., when the sample is more central and recognizable)?

  • http://www.pegritz.com Derek C. F. Pegritz

    @Peter:

    I would hope that the latter is the case. For example, quite a while ago I loved Busta Rhymes' "Fire It Up" featuring the sample of the Knight Rider theme song–so, of course, I went looking for the Knight Rider theme song. Then, a few years later, some bhangra musician briefly had a US hit with some track that featured a sample from the Busta Rhymes track featuring Busta's beat and the Knight Rider themesong–so I had to track down that song now, as well! The only reason I don't recall it offhand now is that, aside from the Busta Rhymes beat sample, the song turned out to be pretty forgettable–it was built entirely around the sample and really should be considered and extreme remix of "Fire It Up" instead of a separate track, but that's just quibbling over irrelevant details.

    When I recognize samples of certain tracks in contemporary songs, it actually heightens my interest in those new tracks–either with ire, because they sample a good song and friggin' ruin it, or with admiration, because they do something really cool with it and give that old sample a whole new life and meaning.

  • Greg

    I thought Lo-bat wasn't too bothered by this?

    Also, listening to "Sunday" versus "Love and Caring" yields a similarity only in the sound design of the drums. Still, the author points out that the "first two beats" are exactly the same. First two beats? How is that even relevant?

    It's also ironic that the author posts a sound sample of "Love and Caring," saying "I deem this as ok from a copyright point of view since most of the quoted material doesn’t belong to them anyway." It is?

  • Anonymous

    @Greg

    The first two have nothing else played, therefore the sample is clean to compare. The rest of the song has other instruments over them, thereby not providing an accurate basis for analysis.

    That being said, he doesn't need to compare the rest of the song. They don't suddenly change what samples they're using for drums in the song.

  • http://gameboygenius.8bitcollective.com/wordpress/ nitro2k01

    @Greg: It's correct that Lo-Bat said he didn't really care about this.

    When I was talking about the first two beats, it should be pointed out that these two first beats (Actually three including the snare, even though that's not visible in the spectrum analysis) are being repeated throughout the whole song. I'm not claiming this was an unlawful or immoral thing to do by them, but I presented it for reference, as a part of a possily bigger image to be revealed later, and because in this case it was so obvious and easy to do.

    My sound example contains about 7 seconds of sound solely composed of sound samples from a track freely available from Covox' homepage, and 2 seconds of actually original CC material. In other words, it's up to Covox to decide whether I can quote the first 7 seconds. (It's a freely available track, I know him personally, and I'm pretty sure it's ok) Those 2 seconds, given the context, should definitely fall under fair use.

  • http://www.createdigitalmusic.com Peter Kirn

    Actually, legally speaking, in the United States a 2004 court decision pretty much eliminated any concept of fair use for digital sampling. Here's the article I wrote at the time for Keyboard (which, speaking of attribution, lost my byline):

    http://www.keyboardmag.com/article/step-away-from

    The judge — ironically, against even the *plaintiff's* wishes, because it defies common sense — decided what's called the "de minimis" standard didn't apply. In other words, the US law of the land at the moment is that the 2 seconds vs. the 7 seconds don't matter.

    In this case, virtually no one I spoke to thinks this is legally a good idea. Even the RIAA filed an amicus brief arguing the decision went too far — presumably concerned because it would open *them* to endless liability. But as far as I know, this decision was never challenged.

    Anyway, invoking "fair use" as your legal protection is pretty much meaningless. At this point, you might as well shout "by the hammer of Thor!" when you sample. So when I say the law needs to be repaired, that's what I mean. But the fundamental problem was that fair use never *did* have a line — 2 seconds is okay, 4 seconds is not, etc. So it invited the courts to get carried away with their interpretation. That's why I think an explicit license like Creative Commons is important — and why, ultimately, more reasonable sample clearance pricing will prevail, too.

  • Greg

    Sorry for jumping to conclusions.

    I think the situation that I want to avoid is a ideological war on uncleared sampling. Take, for instance, The Field's From Here We Go To Sublime. Why should the artist have to pay for those samples when they are not even really recognizable by their creators? I suppose this is only partially related to Crystal Castles, but it just seems that copyright law doesn't completely jam with the postmodern mindset.

    On another note, I'm totally going to try the hammer of Thor next time I sample something :)

  • contakt

    Mr Kirn:

    "So are those guys paying outrageous fees for clearing samples — or are records starting to recognize that more substantial sampling (and remixes) actually help to better promote the older discs (i.e., when the sample is more central and recognizable)?"

    Both. It really just depends on the person. There are a few people that really make a living from pursuing people who have sampled them (the owner of Tuff City Records is an example).

  • moonbass

    Peter you are an upstanding corporate drone. Capitalism salutes you.

  • http://www.createdigitalmusic.com Peter Kirn

    Hey, I don't write the laws, I just report them. moonbass, you make trolls everywhere proud. Keep on trollin'!

  • moonbass

    Keep on regurgitating Peter.

  • http://gameboygenius.8bitcollective.com/wordpress/ nitro2k01

    @Peter: Actually was I was commenting on was not fair use regarding sampling in music production, but that I consider my nine second sound example to fall under fair use.

  • http://www.createdigitalmusic.com Peter Kirn

    @nitro2k01: Oh, I see — and yeah, I agree on that count. Even beyond sampling fair use is horribly nebulous and doesn't seem to protect anyone, ever. I think what we need is clarification in the law. Insubstantial sampling should also count as fair use, frankly, but the court seems to have gone completely insane. (How often are we in agreement with the RIAA because the RIAA wants a more forgiving interpretation of copyright law?)

    Meanwhile … this is like having my very own heckler up there. Awesome.

  • Ian Copeland

    I recall an interview with producer Martyn Ware who talked about sample clearance and a project he was working on called Fabulous Fifties. He said if there was a loop they wanted to use they'd simply recreate it. The soundalike, provided it did not infringe in other ways, was a safer bet financially and artistically.

    Admittedly, the bedroom producer doesn't have the talent pool and resources of a world class producer. It would be far better, though, to at least try and save oneself the cost of litigation, the eventual settlement, and an Internet pillorying.

  • Champ

    Hmmm….

    So it's not the size of the sample, but how you use it!?

    But seriously, I think that sampling is a form of expression and a re-interpretation of our experiences. We all draw inspiration from everything we see everyday, although it may not be a blunt or straight forward as outright plagurism, but the issue stands: is sampling necessarily evil?

    I think that sampling, as with any art form, needs to be interpreted with judgement on quality, interest, intent, or any personal merits you value. Claiming that the Crystal Castles song wasn't a very creative use of an uncleared sample is a judgement on the songs values as an art form, and I think a valid opinion. But blantantly calling them theives or casting them out to wear a scarlett letter "S" for all eternity I think is too harsh.

    Most things you see/hear/read day in and day out are mere recitations of others ideas. Originality is rare, but opinions are far and wide.

    By the fact that sampling is using others work, does not immediately make it an art devoid of creativity. Many artists have used the medium of sampling to great artistry (Q*Bert from the Scratch Piklz, Prefuse 73, Todd Edwards, etc.), and many do not. If you think that sampling at its core is not creative, then logically with the same rationale, one could claim that anyone whose ever used a preset on a keyboard is not creative, or that anyone who uses software that they did not code themselves, is not creative.

    I think that sampling familiar sounds and using them in a creative way is a great way for a young band to get their sonic legs under them, so to speak.

    The mixtape that Diplo and MIA put out (Piracy Funds Terrorism) was a great and refreshing take on popular songs in a new format. Although this outright (and admitted in the title) sampling made this impossible for any label to handle and release commercially, it garnered support from fans around the world. It generated enough steam that it was worth remaking the entire album in a format that could be distributed (now titled Arular) and fostered the career of one of music's rare and unique voices.

    Give Crystal Castles some time to find their sound, give them time to learn the system. When you give artists room to flourish and grow, they usually surprise you.

  • dy-wen

    Perhaps if they would have ASKED Lo-bat… He would have been mild (as he is a very nice down to earth person), ok I'm biased :-)

    Also here the limit of sampling and taking a complete song has been crossed..

    (they are remixes – not sample based new songs…).

    I have done sound for experimental films, working with the excellent freesound database (http://freesound.iua.upf.edu/) I have respected every licence, and attributed every sample…

    Also when I work on educational projects and I need illustrations, I look for photographs that are CC licenced on flickr for example, and I attribute each and every one of them, with the name of the photographer and the link where I found it, explicitly mentioning the Creative Commons License. It's the least you can do… It's about respect.

  • ugga

    can the original artist not just sue them?

    they're obviously in the right, so it shouldn't be hard to find a lawyer to work pro boner, no?

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  • caramello

    the thing that really bothered me was reading that crystal castles sampled anything in the first place. isn't the idea of chiptune music making new music from machines that were never intended to do anything serious musically? pushing the boundries of those machines to make something more musical? don't get me wrong, i think sampling is fascinating. i love the JAMs. i sample stuff all the time. the thing is, they weren't even sampling, they were ripping their peers off. when i sample something, i sample something that's not what i'm doing. the one measure of a song from 1972 that when looped becomes an amazing disco thing. the accidentally really electro break from that song i heard on _____. the thing is, you'd hear it and think "oh, i wonder what this cut up sample is from." it's not me sampling some really hot beat that sounds exactly like something i'd make. my samples are obvious, but i try to recontextualize them, and make what i contribute the more interesting part of the song, and if i ever decided to release something or get on a record label, i'd ask permission for the really obvious ones, or just make somethign better. but this goes further. it's beyond sampling. this is just lazy. it's theft. and it made me lose so much respect for them.

  • Jeremy

    So I just watched a video that made me come back here. Interesting to read the replies… and it made me look twice at the story.

    So, I apologize: I didn't know the full story when I posted my comment.

    That said, I did just go listen to the tracks in question, and… well… to my ear, it's borderline. It doesn't sound to me like they just ripped the entire song and sang over it (if you can call it singing)… it sounds like they ripped the beat pretty much verbatim and took some notes for the backing music. So I don't think the "infringement" is as dire as has been claimed.

    Secondly, I don't think this should be cause for a lawsuit, so much as a black mark on the band. As several people pointed out: they stole the music and called it their creation. Lame. But, really, worth a lawsuit? Not in my opinion.

    And, to answer Sizzurp Sippa (while trying to avoid jibes at the handle), yes, I make music. Have for decades. And I release it cc. And if my music were used in a commercial, I'd be pretty psyched. I'd be posting notices everywhere I could: "look, look, some corporation used my music! The rat bastards stole it!" …And I'd be grinning from ear to ear as I did it, cause it would mean more people hearing my stuff.

    So, in summary: I spoke too soon and too brashly… CC is obviously comprised of brats. And they done wrong. And the more people who point it out, the better. But I still say that copyright infringement lawsuits are about as useful as brushing your teeth with brillo pads. They do far more harm than good. Sure… sometimes you gotta lay the smackdown. But this is NOT one of those cases.

    And Larry Lessig says some pretty amazing things in that video… if you've read this far in the comments, you'll want to watch it.

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  • Jeff

    I actually had not heard of Crystal Castles until now, I think they are really good. The song with the Lo-bat sample is their poorest track and it's unreleased, so why the fuss?

  • xpez2000

    Crystal Castles = Milli Vanilli…

    Anyway they sound like ASS live. They have like one catchy song.

    If I was the person who made the original sample I would hire a lawyer and see how much I could sue the crystal Castles for…

    If your willing to play the game of stealing and see if you can get away with it later then fine..lets play that game I hope you make millions ..so I can make millions TOO off your talent too by SUING YOU!!! …

    if that doesnt work then i will have to let the air out your tires!!!! LOL

    there will be hell to pay for plagiarism!!!!

  • Somil

    The songs that have samples from other artists weren't released. They were not in violation of the creative commons license as it was not used for a commercial purpose since it was not released on an album, they posted it to their myspace. Their only mistake was that they didn't give credit to the artist they supposedly stole from. But this plagiarism is no different than the appropriation of fine art throughout history.

  • http://www.siegerecordings.com Mat Rapid

    it seems to me that most of the posts here must be from non musicians. Surely the creative process is far more important than the technicalities and legal issues of sampling. When producing music, the sound is all that matters, wherever the samples originate from. and yes, it would be much 'cleaner' to clear the samples before undertaking a project, but who does that? and how many people are confident that every song they produce will end up being successful? It is counterproductive to get wound up clearing samples before you use them. I'm not advocating plagiarism, just common sense. Where would hip hop be without sampling?