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De La Soul
De La Soul
Photo Credit: Gie Knaeps for Getty

Decades Since '3 Feet High & Rising' & De La Soul Still Isn't In Control Of Its Legacy

In an age where countless veteran rap acts are benefiting off of nostalgia, pioneering hip-hop group De La Soul hasn't fully been able to do the same.

De La Soul's debut album, 3 Feet High and Rising, turned 30 on March 3rd, 2019. The occasion should've been celebratory: a rollout of its proper introduction to digital and streaming services, a tour, and any of the other indicators that often come with an album's anniversary.

Instead, De La is in an ongoing battle over not only 3 Feet High but the five albums that came after it. The rap trio claims that Tom Silverman, CEO and founder of the Tommy Boy record label that released their first six albums, offered them a 90/10 split of the profits if he were to take their music to streaming services after reacquiring the albums from Warner Bros. De La has criticized the deal as "unfair" on social media and have received support from Nas, Questlove, and Pete Rock. JAY-Z's Tidal also released a statement saying the service wouldn't stream De La's early catalog until a deal was settled between the group and Silverman.

The albums' placement on streaming services has been postponed. In an age where countless veteran rap acts are benefiting off of nostalgia, it's unfortunate that De La isn't fully able to do the same.

The unfair split between De La and Silverman stems from the mishandling of sample clearances for the group's albums, particularly 3 Feet High and Rising. The 24-track release features over 60 samples that helped De La create a distinct sound that spoke to the cultural and educational value of sample culture. When 3 Feet High was selected for the Library of Congress' 2010 registry, the album's use of samples was cited, the registry reading:

"For the album, the group marshaled an astonishing range of samples that included not only soul and R&B classics by Otis Redding and the Bar-Kays, but also Steely Dan's 'Aja' and cuts by Johnny Cash, Billy Joel, Kraftwerk, Hall and Oates, and Liberace. Perhaps the most far-flung sample is a snippet of New York Mayor Fiorello LaGuardia reading the comics over the radio in 1945."

The trio had reportedly cleared most of the samples for the album. But not all of them. Months after 3 Feet High was certified gold, the Turtles filed a copyright infringement lawsuit against De La for using their song "You Showed Me" on "Transmitting Live From Mars."

According to a Los Angeles Times article from 1989, the band's lawsuit charged that "De La Soul used a four-bar section of the Turtles song (lasting 12 seconds) and 'looped' it so that the riff served as the music for the entire 66 seconds of the De La Soul piece."

Howard Kaylan and Mark Volman, former members of the Turtles, had sued Prince Paul and De La for $2.5 million. The case was settled out of court, with Kaylan and Volman reportedly receiving as high as $1.7 million (although De La claim they never paid that much).

Lenny Kravitz, Grace Jones, Lauryn Hill, Lion Babe, Thundercat, SZA & More Rock The Afropunk Festival 2015 in Brooklyn, NY. Photo by Victoria Ford/Sneakshot Photography for Okayplayer

The case was — and still is — considered a landmark music copyright case, considering sampling was relatively new at the time, and there weren't any laws centered on the practice. De La's loss made rap artists and producers wary of using samples so excessively, the practice declining after the case.

After 3 Feet High, Tommy Boy became much more careful on sampling. Speaking to the New York Times in 2016, De La producer Prince Paul said: "Sampling was obviously new, but we were told, 'Hey, here's some sample-clearance forms — you have to fill these out. It got to the point where it was like, 'What is that scratch!?'"

Four years prior to 3 Feet High's release, Tommy Boy had entered a partnership with Warner Bros. Records. Warner had acquired half of Tommy Boy but in return it was able to use independent distribution, as well as distribute artists through Warner Bros. Records or sister label Reprise Records.

In 2002, Tommy Boy and Warner's joint venture ended. As a part of their agreement, Warner became the owner of Tommy Boy's catalog and publishing, as well as the artists on the label's roster, including De La. The rap trio was moved to Elektra Records, which is owned by Warner Music Group.

Lenny Kravitz, Grace Jones, Lauryn Hill, Lion Babe, Thundercat, SZA & More Rock The Afropunk Festival 2015 in Brooklyn, NY. Photo by Victoria Ford/Sneakshot Photography for Okayplayer

Digital music distribution had appeared by the early 2000s. From Napster's online music store and Rhapsody's on-demand music streaming service to cellphone ringtone song purchases, artists now had new ways to distribute and make money off their music.

As the music industry evolved, De La's catalog remained stagnant under Warner Bros. Rhino, a subsidiary of Warner Music Group that handles the label's back catalog, told the New York Times in 2016 that Warner wasn't able to put up the group's music digitally, because they didn't believe it was possible to clear all of the samples.

"My understanding is that due to allegedly uncleared samples, Warners has been uncomfortable or unwilling to license a lot of the De La Soul stuff," Deborah Mannis-Gardner, a sample-clearance agent who worked with De La on their latest album And the Anonymous Nobody... said. "It becomes difficult opening these cans of worms — were things possibly cleared with a handshake?"

The report also noted how the language of the sample agreements could've deterred Warner from making De La's music digital.

"If those agreements, written nearly three decades ago, do not account for formats other than CDs, vinyl LPs and cassettes, Warner Music would have to renegotiate terms for every sample on the group's first four records with their respective copyright holders to make those available digitally," the Times reported.

People quoted in the story also mentioned a legal phrase called "now known or hereafter discovered," meaning samples cleared in the past are legal to use for music downloading and streaming services. However, if the phrase wasn't included in the agreements, even those samples that were already cleared could face problems.

"It's tricky because someone could deny the sample use now, or negotiate high upfront advances, maybe even higher percentage or royalty than was originally negotiated, which lessens what the label can earn," Michelle Bayer, who handles De La's publishing administration, said.

Now that Silverman has gotten back De La's catalog, the presumption is that he must have handled the samples to finally be able to release the trio's music. But according to the group that isn't the case.

"For argument's sake, let's say we accept the split. Why are we doing this with potential infractures? It's not quite clear," Maseo said in an interview with Billboard. "[Tommy's] words exactly, 'If somebody comes, we'll deal with it exactly as we dealt with in the past.' And how was that? We settled with whatever we settled with out of court, whether it be a million dollars, $100,000, $50,000."

While legacy acts from that era like Wu-Tang Clan and Public Enemy celebrate anniversaries for their respective classic albums — Wu's Enter the Wu-Tang (36 Chambers) and Public Enemy's It Takes a Nation of Millions to Hold Us Back — De La doesn't have the liberty. They have to abide by the latter, not by choice but circumstance — a legacy act that can't properly celebrate their most cherished and beloved album.