Kaavya Viswanathan—Master Sampler?

The amount of regional and national press over what insiders are calling “Opalgate” is bordering on the absurd. Kaavya Viswanathan ’08, author of “How Opal Mehta Got Kissed, Got Wild, and Got a Life,” borrowed liberally from another author’s work. So what? In the hip-hop world, this goes down all the time. The main question for all the chick-lit fans, and possibly the courts, is whether Viswanathan is a “biter,” or just standing on the shoulders of giants (if it’s fair to put author Megan McCafferty in the company of Hemingway and Proust).

Word on the street is that Kaavya is somewhat of a hip-hop aficionado, so it’s possible she was merely adding her name to a long list of “samplers” in rap history. From its roots in Jamaican reggae and dub, hip-hop has always relied on the creative reuse of prerecorded material. Starting from simple looped beats of disco and funk tracks (think “Rapper’s Delight” and their shameless use of Chic’s “Good Times”), sampling quickly evolved into montage masterworks by artists like EPMD, the Beastie Boys, and De La Soul.

But, not surprisingly in our über-litigious country, the golden age of sampling didn’t last. In 1990, Vanilla Ice had his fifteen minutes of shame trying to explain the profound difference between his “Ice Ice Baby” beat and the Queen and David Bowie song “Under Pressure,” which apparently revolved on a grace note difference so subtle that only classically-trained musicians like Mr. Ice (but not the original musicians, with whom he settled out of court) could discern it.

The era of free sampling came to a halt with a legal challenge from, improbably enough, Gilbert O’Sullivan, regarding Biz Markie’s 1992 sample-heavy album “I Need a Haircut.”

After the ruling, the shift in hip-hop towards synthesized beats was immediate,. Some artists managed to use parts of other musician’s work without running afoul with the law. They generally fall into three categories: anarchic, crazy, and rich. The recent wave of mash-up artists (which broke into the mainstream with DJ Danger Mouse’s Jay-Z/Beatles hybrid “The Grey Album”) have brought a new vitality to sampling, but most of their work is produced and circulated below the radar of commercial music.

An example of the second class, the wacky Australians in the Avalanches laboriously cleared the rights to all 900-odd samples they used in their epic album “Since I Left You,” which include language tapes, Madonna’s “Holiday,” and a vocal clip of a giddy Club Med DJ.

On the commercial side, Puff Daddy (now Diddy, formerly known as P. Diddy, Puffy D, Puff the Magic Dragon and “Steve”) and his pop gangster peers became infamous for completely recycling old songs (by the Police, and others) without much attempt at refashioning, leading the satirical weekly The Onion to suggest that Puff Daddy’s next single would consist of David Bowie’s “Let’s Dance” “in its entirety,” with no rapping whatsoever. But for every beat-jacker, there exist producers like the Wu-Tang’s RZA, who compares his use of a wide variety of short samples in a given song to that of “painter’s palette,” and biters’ approach to a “Xerox machine.”

But even this distinction, between creative reuse in a recognizably new composition, and tired theft, was eventually erased by the courts. The real “zero hour” of sampling occurred in the notorious “three notes” case of 2005, Bridgeport Music Inc. v. Dimension Films, in which the 6th Circuit Court ruled that the use of even three notes of a song constituted illegal sampling. Even the RIAA was opposed to this ruling, and these guys eat aborted fetuses for breakfast.

Looking at it from this perspective, almost every creative work could be found “derivative” by clever lawyers. Didn’t I hear that Franz Ferdinand chord progression somewhere before? I certainly did, and not just because I’m a disillusioned Gang of Four fan. By definition, culture is collaborative. Some of the richest masterpieces of the Western literary canon are thoroughly infused with Biblical and mythological language. If Homer had better legal representation, would James Joyce’s Ulysses have ever been published? Intertextuality isn’t just a word that literature majors throw around at their swank cocktail parties—it’s a fundamental attribute of creative expression.

Even in an age when copyright terms have been extended to absurd lengths in order to keep Mickey Mouse locked up and proprietary, there is a viable movement of people who question the balkanization of artistic expression. Lawrence Lessig and his “Free Culture” peers (including Cory Doctorow, interviewed in the Crimson earlier this year) started Creative Commons, a “some rights reserved” licensing scheme in which artists, not blood-sucking lawyers, can specify the level of control they want over their work.

Last Thursday, the Harvard Free Culture Society celebrated the opening of “Sharing is Daring,” Boston’s first Creative Commons art show. The work wasn’t all derivative itself, but all of it is covered by non-restrictive licenses, allowing for reuse in future works by other artists. Maybe Viswanathan should look into this license for her next novel, to keep future generations of literary borrowers from running into the legal and publicity problems she now faces. Or just pull a Diddy and give Ms. McCafferty a fat stack of Benjamins.

—Staff writer Will B. Payne can be reached at payne@fas.harvard.edu.