In situations where licensing occurs as it did with Vega’s “Tom’s Diner,” today’s musicians pass on to older artists some of the money generated by new sample-based songs. Not only do sampled artists benefit financially through licensing fees, but their careers can also receive a boost in the present day, as in the case of both James Brown and George Clinton. Unfortunately, some sampled musicians are neither featured artists nor copyright owners. One example of this is Clyde Stubblefield, whose drumming drives many of the James Brown samples used in hip-hop records. When asked what his favorite breakbeat is, Chuck D replies, without hesitation, “You have to always look in the James Brown catalogue and find something, either ‘Funky Drummer’ or the ‘Cold Sweat’ break”—two seminal (and heavily sampled) songs that Stubblefield played on.
     In the 1970s, hip-hop DJs mined regularly from James Brown’s records, as did the hip-hop artists using digital samplers in the 1980s. In Stetsasonic’s “Talkin’ All That Jazz,” mentioned in chapter 2, Daddy-O rapped, “Tell the truth James Brown was old ’til Eric B came out with ‘I Got Soul,’ ” referring to hip-hop artists Eric B & Rakim.20 In the case of James Brown, by the mid-1980s the music of Soul Brother Number One was considered by many to be irrelevant. His records piled up in dusty cut-out bins and used-record racks throughout the country, and they were ignored by the next generation of music consumers who rejected the albums as their parents’ music. But when hip-hop artists began sampling Brown’s 1960s gems “Give It Up and Turn It Loose,” “Funky Drummer,” “You Know I Got Soul,” and other funk jams, he sounded fresh again. Sampling gave his music and career a new life.

     Chuck D explains the impulse shared among sampling artists when they feel compelled to borrow from older records: “When those old musicians created magical moments, you had four or five guys that were the best. Sampling allowed the best magical moments to be duplicated.” One of the musicians who created those moments was Clyde Stubblefield. When Grandmaster Flash started DJ-ing in the 1970s, he carefully studied the album credits on the records he liked so that he knew which musicians to look for when digging through record-store racks. Flash thought that everyone in James Brown’s band was obviously very talented, “but Clyde Stubblefield was the baddest. First time I ever heard ‘Funky Drummer,’ I started looking for his name on anything I could find. If Clyde played on a Lawrence Welk record, I bought it.”

     During the second half of the 1960s, when James Brown’s band churned out the funk classics that later became staples of sampling, Stubblefield was one of two primary drummers in the group (the other was Jabo Starks). To provide a better understanding of the labor that went into creating “Funky Drummer” and “Cold Sweat”—two of the most sampled songs ever—Stubblefield tells us about the recording sessions that produced those tracks. The band recorded “Cold Sweat,” credited to James Brown and Alfred “Pee Wee” Ellis, at King Studios in May 1967, during one of James Brown’s creative and commercial peaks. As Stubblefield recalls, “I just started playing [imitates drums], and the bass player came in [imitates bass line], and then the guitar player came in [imitates guitar]. So the rhythm was there and James Brown came in and heard it and said, ‘Yeah, I like that!’ Then he started putting lyrics on top, [sings, quoting from ‘Cold Sweat’] ‘I don’t care … ’ Then they put the horns on it, and we had a song! [laughs] And I started it!”

    This is a pretty typical description of the creative process used by many funk and soul bands of that era. Musicians would vamp and improvise until they settled into a groove that provided the foundation of a song. Ironically, Stubblefield doesn’t even really like “Funky Drummer”—the song or the memories surrounding it. While recording that song he was in a bad mood, which apparently wasn’t uncommon for those who worked for the mercurial James Brown. “We were going into the studio in King’s studio in Cincinnati,” says Stubblefield. “I wasn’t up
to playing that day, I didn’t want to go into the studio—I didn’t want to do nothing. So I got into the studio and just played, played a drum pattern, people joined in, and that’s where ‘Funky Drummer’ came from.” Stubblefield continues by stating, “When I set out I just played a beat, something simple, and everybody joined in. And then Brown came in and put the lyrics to it and it was called ‘Funky Drummer.’ Next thing I know all the rap artists was using it, sampling it.”

     “Even when it came down to James Brown,” Chuck D observes, “there was a whole arrangement of musicians—like Clyde Stubblefield and Bootsy [Collins]—that might have ad-libbed and come up with something that James Brown got credit for.” It is Clyde Stubblefield’s syncopated drumming style that is attractive to many artists who sample, and oftentimes his drum patterns are the only elements of James Brown songs that get sampled (as opposed to horn blasts, vocal grunts, and the other aural qualities associated with Brown’s records). Reminding us of the collective approach used to craft those classic songs during the second half of the 1960s, Stubblefield says, “It’s all of our song, in a sense.We all put our own little techniques, our own little feeling in it, so it belongs to everybody.” But in reality—legal reality—it clearly doesn’t belong to everybody. And in James Brown’s case, the song credits and, subsequently, the copyrights belonged to him.

     As Stubblefield insists, in speaking about his heavily sampled drum pattern, “That was mine. [James Brown] didn’t tell me what to play. I played what I felt, but he owned it.” Stubblefield shakes his head as he tells us that there are so many groups that have sampled his drumming. “But I haven’t gotten a penny for it yet,” he adds, with a good-natured laugh that covers up what is surely decades of bitterness from being ripped off by the music industry. Even though Stubblefield may have come up with the famous rhythms he played, the combination of copyright law, contractual arrangements, informal agreements, and traditional industry practices meant that he received no copyright and thus no royalties. In other words, he was paid for his time as a session musician, just like most of the other members of Brown’s band—an injustice that has nothing to do with copyright law and everything to do with how Brown ran his business dealings.

    This is one key reason Stubblefield hasn’t been paid for the hundreds, probably thousands, of times “Funky Drummer” has been sampled in dance, pop, and hip-hop songs. It’s also the reason why his name does not appear in the liner notes of albums that sample his beats, as he wishes. “I never got a ‘Thanks,’ I never got a ‘Hello, how ya doing?’ or anything from any of the rap artists,” Stubblefield says. “The only one I got a thanks or anything from was Melissa Etheridge.” Far too many sidemen and a surprising number of featured artists from funk, soul, and R&B’s golden era have found themselves in Clyde Stubblefield’s unfortunate position. Many innovative artists contributed greatly to the development of popular music during that time, but they didn’t receive any copyrights as a condition of playing music professionally. Although some musicians who retained their copyrights reaped rewards through sample licensing—Curtis Mayfield is a notable exception—many more, like Stubblefield, weren’t so lucky.

From Creative License: The Law and Culture of Digital Sampling by Kembrew McLeod and Peter Dicola, pages 89-92. Duke University Press, 2011.