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Doin' it for themselves: what's going on in Timbaland?

It has been reported that the noted US Hip-Hop Producer Tim "Timbaland" Mosley has been accused of wholesale sampling of another person's work in his hit for Nelly Furtado "Do It".

About the author

Chris Abbott runs publisher and record label "High Technology Publishing Ltd.", and its website C64Audio.com. He has also written occasionally for Edge Retro Magazine, Retro Gamer, Remix64.com and Retro Fusion. This article is purely his personal independent analysis and is in no way representing any of the parties. Any errors or misrepresentations are entirely accidental, and anything here is no substitute for the advice of a good IP Lawyer!

Background and Timeline

In 2000, Janne Suni ("Tempest") composed a piece called "Acid Jazzed Evening" which was submitted to the Assembly 2000 Oldskool Music Competition, winning 1st place. The piece was composed in what is called "Mod" format, popular on Amiga computers in the 90s and later also on PCs. Assembly is one of the worlds oldest and largest annual demoparties. In 2000 there were 4-5000 visitors present at the event, and the associated TV footage from the event was watched by 170,000 viewers on Helsinki HTV-cable-tv and on the Internet. 35,000 of these viewers were abroad.

In 2002, the C64 composer Glenn Rune Gallefoss, well known and respected within the C64 community, produced a Commodore 64 version of this tune, with Tempest's blessing.

In 2005, Timbaland produced a series of exclusive ringtones. One of these was called "Block Party" its release, being US specific, passed unnoticed, but it bore striking similarities to the 2002 cover of Acid Jazzed Evening.

In 2006, Nelly Furtado released her new album "Loose", to a rapturous reception. Almost immediately Janne started to receive emails telling him of a problem with the track "Do It" appearing to feature his song. In October 2006, the forum at Remix64.com noted the issue, becoming more and more concerned about the apparent similarities in the course of the thread.

In January 2007, the story suddenly started to appear in blogs and forums, such as digg.com, slashdot.org and on YouTube. After that, the story has spread everywhere.

Assessing the claim

We here at C64Audio.com have been involved in various legal issues surrounding Commodore music, and the various defenses that record companies employ to justify their actions. We're also technical experts about how SID music is created and realised. We are therefore almost uniquely qualified to analyse the extent of the allegations against Mr Timbaland. Here's our take on it.

What's the problem?

This is more of a complex question than it might appear.

i) How could Timbaland have got exposure to the piece?
ii) Is it likely coincidence was involved?
iii) Was it technically possible for him to have sampled the tune in that way?
iv) Was the track merely recreated rather than sampled?

Let's take a hypothetical situation: let's pretend that Mr Mosley is accused merely of borrowing the melody and chords from Tempest's track. Would this be actionable? And would it stand up?

In such a case, it would be almost impossible to prove, since it would be difficult to prove he had exposure to the track.

Defending, the claim of coincidence would almost certainly be put forward by the record company, even if the melody and chords had been borrowed wholesale: the status of the people involved, and the relative obscurity of the piece involved, would make a scrappy court case inevitable: with no guarantee as to which side would win, even accounting for the fact that Acid Jazzed Evening was available on the Internet and it was by no means as obscure as observers might think.

If this were a simple borrowing of music, the claim of infringment might well fail.

However, that's not the allegation.

What's alleged is that, in addition to using the exact same melody as Tempest's tune, the C64-version by GRG was directly sampled. If this can be established beyond reasonable doubt, then all defenses about coincidental plaigirism of the source track disappear: because it can be proven that the basis of the entire song was the physical realisation of another song.

1) The mechanical and performance rights, and 2) The phonographic/recording rights.

The first of these is about the actual song: not the recording of it, but the song if you wrote it down in sheet music form. If the SID was sampled, then it follows that a large part of the sheet music version of the song is directly sourced from Tempest's MOD. This would entitle Tempest (not GRG) to songwriter shares on the song "Do It", currently credited to three other people, including Ms Furtado herself and of course Timbaland. If he had his correct songwriter shares, he would be paid for every CD, every performance and every ringtone of the work. Even if the record label subsequently "cleaned" the song by recreating the samples legally or removing them altogether, this claim would remain, as long as the sheet music rendition remained the same.

The second of these is about the actual version of the song: the version recorded in the studio. If they took another song, and used direct recording parts from it (even if put through a FX or other predictable mathematical processes), then they infringed that song. Two possible remedies in that situation would be a buyout of the track by the record label, or a royalty paid by the record company whenever they licence the master recording. This would be payable to GRG, but not to Tempest, since Tempest didn't contribute to the master SID recording.

Now, let's look at a possible chain of proof in this particular case, working backwards.

Q: Does Timbaland's recording appear to contain a sample of Glenn Rune Gallefoss' recording?

A: Yes, it appears so. What appears to have happened is that the three-voice output from the original C64 version has had the bass voice silenced: that missing bass voice then follows the original tune except for a couple of changed notes, and the removal of some octave jumps. However, various technical procedures show that other components of the song (chords/melody/rhythm) have been exactly reproduced. This is vanishingly unlikely to have happened by chance.

For instance, an experimental MP3 was created which slowed down and interleaved the two tracks at two second intervals (two seconds from one, two seconds from the other). One part was Do It's last part (without Nelly's singing) and the other was GRG's version of AJE (played at NTSC clock-speed. The arpeggios continued perfectly smoothly from one song to another: which would only be possible if they where taken from the same original sound-data.

Q: Could they have replicated GRG's piece exactly without the original sound data?

A: No. Sounds from the SID chip are much more distinctive than regular sample-based sounds. Each sound has various modulations and timings (and waveform changes) in it which are unique to the composer and the song. The method of producing chords and waveform variation in the song relies upon many pitch and waveform modulations per second: and without access to the original source code, it's almost impossible to replicate it that exactly: there would be audible differences in the track.

In addition, the original piece has notes missing from various tracks. This is a common way for musicians knowledgable about the SID-chip to compensate for the fact that the chip can only play three simultanious voices. These -exact- missing notes are also missing in the Timbaland recording, which is a huge statistical improbability.

Q: How did this come about? Isn't it entirely unlikely that a famous Hip-Hop Producer would know about an obscure Commodore 64 tune in an obscure collection?

A: There is documented proof (in the form of photos and interviews) with Timbaland himself in which he praises a new piece of equipment in his sonic arsenal: a SIDStation (http://www.sidstation.com).

Click here for video of a man and his Sidstation (white box on top of keyboard)

This is a professional piece of kit which contains the sound chip from a Commodore 64. Apart from being able to play and create sounds, this machine can also play back Commodore 64 music in original code form (SIDs). The main repository of such tunes is High Voltage SID Collection (http://www.hvsc.c64.org). As a new Sidstation owner, it's highly likely that this collection would fall into his hands, since it would provide instant fodder to test his kit: and in addition, the purchase of a Sidstation already speaks of an interest in SID music. SID-alike sounds were very popular in the 80s and 90s, and were often the only kind of sounds available to game-programmers and musicians of that time. With electro music embracing the retro-sound, and Timbaland being a world-renowned producer, it is entirely possible that he (or his production staff) not only like those sounds, but went looking for them specifically.

In addition: HVSC, while not being mainstream, is not obscure, and neither is SID/C64 music. Downloads from HVSC and the C64 remix site Remix.kwed.org number in the millions, and music from HVSC has occasional high profile usage in tracks such as Kernkraft 400 (Zombie Nation) and "14 Zero Zero", an underground European hit from 1999 which sampled a track from the Commodore 64 game "Wizball". Its scratchy and raw sound is just the kind of vibe which can add "old-skool" cred to a track with street pretensions.

Q: Is there actual proof that GRG's SID "Acid Jazzed Evening" is a cover of Tempest's earlier work?

Seems like a silly question, but in court you have to start from the basics. The answer? Of course, yes, there is. Both composers agree on this, and the cover is obviously a 1:1 interpretation within the confines of the Commodore 64 soundchip: melody, chords and structure are exactly replicated.

Q: Did Timbaland's song infringe Tempest's?

Yes, it appears so. The use of a cover of "Acid Jazzed Evening" within "Do it" (and the "Block Party"-ringtone), the length of the samples, and the similarity of the chords and melody (necessarily driven by the sampled part) points to major infringement.

Q: Who did it?

That's possibly the question which has attracted the most speculation. Many bystanders have blamed the record label for not clearing a sample properly. This is a possibility: the record company might have found it very difficult to clear this sample:

i) It's possible that after they'd used the sample, the production team forgot which of the 33,000 works it came from.
ii) Maybe they thought they were re-using Timbaland's old work "Block Party", and forgot that work in itself contained infringements (this theory is given weight by the fact that the alterations to the bassline done for Block Party are the same as the ones in "Do It": this also indicates that this was not a carelessly used random WAV but a considered usage of the piece).
iii) Since the owner of the track is unrepresented and the track is not registered at ASCAP, Harry Fox agency, NCB, MCPS or any of the other organisations which track works for the industry, it's a lot more difficult to follow the IP trail (but not impossible: the general public seems to have had no difficulty).
iv) Almost certainly there was a strict deadline for the album: sample clearance involves an element of assigning publishing percentages and sample fees: a negotiation process which takes some time, and which is further lengthened when the work is unregistered (though NOT out of copyright: this merely means the rights were still owned by the composer, and weren't assigned to the copyright collection agency network).

However, this is of course speculation: and of course, none of these possible excuses would be justification for leaving the sample uncleared. If you cannot clear a sample you are not allowed to use it.

At the moment there has been no apparent official word from Geffen or Timbaland: therefore we cannot know whether this was the case, or whether Mr Mosley did try to take corrective action of some kind. It's possible that he adopted an executive role and that the blame lies with one of his assistants, researchers or other staff. However, the general rule would be: the buck stops with the people taking the credit, and the people making the money.

In short, we don't know who did it, but we've established it was done.

Q: Who should be held responsible for putting this right?

A: In my opinion there are two parties who should be held responsible for the two infringements: the record label should be held responsible for reparations for the infringement against GRG, though the blame may attach to the Producer or his staff. The record label would almost certainly have an indemnification clause in their contract which would allow them to claim back money they lost from the Producer for this. The publishers of the song should be held responsible for the infringement against Tempest, and again, the Publishing contract would indemnify the Publisher, though it shouldn't protect against legal action against the Publisher: merely provide the Publisher with a way to offset their losses.

Conclusion: the evidence, I feel, is conclusive. The eventual outcome is not.

What's the status?

GRG informs me that the composers are currently assessing the situation and evaluating options. It's likely some action will be taken, the first step to which should be actually notifying Geffen and "Do It"'s publishers about the situation and demanding reparations: this would elicit an official response which should clarify the grounds upon which those organisations might be preparing to defend the allegations.

What are they likely to say?

Hypothetically, there are some legal arguments which they may try. Some of the arguments are lame, but that's never stopped laywers before from expressing them in public:

The Jurisdiction or registration defense: "the piece wasn't registered here, the laws are different, no offence was committed"

Probability: Unlikely.

The "You've got it all wrong" Defense: "This is unfounded, this is all coincidence whipped up by media hysteria. There's no evidence, and Mr Mosley stands by the originality of his recordings and his status in the industry. We will vigorously defend any action".

Probability: Likely as a first response, especially if the furore is brought to their attention before they've heard the evidence. A knee-jerk reaction like that is what you'd expect from a company which finds its reputation and money under threat: especially since they probably hear things like that all the time: if you're a big company, you expect to be targeted by chancers. It's unclear to me how the media furore would affect their stance, except to allow them to claim that because a lot of the speculation and comments surrounding this story have ranged from "fanboy" to "brain-dead", they can discount the allegation.

The "We got it wrong" defense: "We've talked to Mr Mosley, and though we strenuously deny we did anything wrong at all ever, as a goodwill gesture, Mr Mosley would like to settle amicably"

Probability: middling. A good one for the record company and the producer, since the record company get to deflect the blame and protect their income, and the infringed parties are dealing with a very-much-less-rich-than-the-record-company individual.

The probability is fairly high, but not straight away. Expect blustering first. This is the most likely outcome at the end, though it involves the least payoff for Janne and Glenn. Companies really don't like renegotiating contracts for unexpected third parties, and hate even more unexpected royalty streams putting a hole in their bottom line. This "smack on the bottom" for Mr Mosley would certainly make Geffen and Timba breathe a sigh of relief.

Hurt Feelings and Outrage

Having covered the dry legal ground, it's easy to forget that this case has aroused a lot of feeling in the community, summed up best by webmaster of Remix64.com, Markus "LMan" Klein.

"It's the industry that issues the "piracy is crime" campaigns. But it's an industry that seems to have lobbies everywhere. An industry that is allowed to investigate in people's lives where it really shouldn't be allowed. The industry that put a mother in jail because she "lent" her chinese friend her german bank account to sell CDs over eBay from China. This reeks of oppression, and now the oppresed explode because they caught the oppressor doing the very thing it's trying to prohibit... only a thousand times worse, broken down to the individual act."

Discuss this article here

More about the author...

Chris Abbott runs the publishing and record label "High Technology Publishing Ltd.", and its website C64Audio.com. He has also run events such as "Back in Time Live", an unashamedly Commodore-music based event in various glamour locations around the UK (Soho, Brighton, The City and Manchester), and written for Edge Retro Magazine and Retro Gamer.

As the current publisher for noted musicians such as Rob Hubbard, Martin Galway, Ben Daglish, David Whittaker, Richard Joseph, Tim Follin, Paul Norman, Matt Gray, Fred Gray, and the Mighty Bogg, Chris has spent a number of years policing the commercial scene to make sure that composers were given their due. A member of MCPS/PRS/PPL and STIM/NCB, he has taken successful action against numerous illegal usage of Commodore 64 music, including liaising with David Whittaker during the Zombie Nation period and initiating the licencing process.. He has been successful mostly without involving lawyers or courts. High Technology Publishing doesn't, however, currently administer GRG's or Tempest's work.

High Technology Publishing controls the rights to hundreds of original C64 tunes, both the mechanical and the phonographic rights, and is willing to licence them to record labels of all sizes for commercial use. The original composers all receive royalties on such usage.

Links:

Tempest's Site
Video from YTMND High Voltage SID Collection, including Glenn Rune Gallefoss' work.
C64 Music Community Site
Main C64 Remix Site
C64 Music Radio
C64 Music Podcast
Rolling Stone Magazine's Reportage