Culture Vulture: Kanye Steals from Unknown Trans Artists—Because He Can

Five years ago, a 20-year-old singer named Swsh walked into the Doghouse recording studio in New York and delivered a soulful, rhythmic, and partly improvised, performance of “Break the Fall,” the artist’s latest single. Towards the end of the recording, Swsh played the song’s chord progression on the piano one last time, adlibbing additional words before trailing off.  It was these last four bars that would later become the source material for Kanye’s “530” track on his 2024 collaboration with Ty Dolla $ign.

After Kanye surprise released Vulture 2 on streaming, Swsh took to TikTok.  “Kanye west sampled me and yet I’m riding the bus and someone just tried to stand on top of me I love duality I love life,” the caption read over Swsh’s head, their pitched up vocals playing mockingly in the background.

Sometimes, It’s Easier to Ask for Permission than Forgiveness

Just a month prior to releasing Vultures 2, Kanye settled a legal battle with Donna Summer’s estate over the unauthorized sampling of “I Feel Love” on Vultures 1—his 14th copyright lawsuit. From his earliest experiences, Kanye realized that getting a sampled cleared is sometimes nearly impossible.  On Kanye’s first album, The College Dropout, he tried to sample a live recording of Lauryn Hill for “All Falls Down,” but was immediately denied. In order to get around this, Kanye hired another singer to re-record a similar sample for his hook. This was one of the earliest examples of Kanye prioritizing artistic liberties over going through the sample clearance system.

Big artists like Donna Summer and Ozzy Osborne have all the leverage in the world to collect from unauthorized sampling of their works.  However, for smaller, newer artists like Swsh, all they have are the record labels and publishing houses that back them.

Artists Don’t Always Benefit from Being Sampled

When it comes to sampling, industry dynamics often outweigh the default protections of copyright law.  This is because artists trade away the rights to their master recordings to their label as soon as they sign with them.  It’s these record labels that do the negotiating, and they are the ones who collect most, if not all, of the licensing revenue. After taking out the label’s cut and additional transaction costs, anything leftover is first applied to the artist’s existing debt to the record label. Royalties might range from 1 cent to 10 cents per sale, or anywhere from $500 to $50,000 per sample. Often, this isn’t enough money to recoup the artist’s debt, which can quickly pile up as the label burns cash to promote them.

Besides the labels, permission from the music publishers is also required for copyright clearance.  However, in the context of sampling, it can be difficult for a songwriter to argue that enough of their composition has been copied for copyright infringement.   This is because unless a major, recognizable component of the song’s musical score is included in the sample, an unauthorized sampler can assert de minimus copying and/or fair use as a defense.  In the case of “530”, Kanye sampled the very ending of Swsh’s live performance of “Break the Fall,” which was a largely improvised afterthought.

Lesser-Known Artists Can Avoid the Same Fate as Swsh

First, artists should register their copyrights if their publisher or label haven’t done so already.   Doing this provides notice to potential samplers and informs them of who to contact for clearance purposes.  Because copyrights can exchange through many hands, a copyright registration removes a big hurdle in the sample clearance process—figuring out who to make a deal with.  In the case of Swsh, the copyright registration for the live recording of “Break the Fall” wasn’t registered until three days after Vultures 2 was released.  By not registering beforehand, Swsh missed out on an opportunity to negotiate with Kanye’s team directly.

 Additionally, recording artists and songwriters should continuously evaluate what copyrights they’re producing for their labels and publishers and further evaluate what they’ve been getting in return.  The role of a record label is to promote and develop recording artists, while the role of a publisher is to generate value from a songwriter’s compositions.  This is the general value proposition when an artist transfers ownership of their copyrights to these entities.  The labels and publishers are supposed to use these copyrights as assets and generate value for the artist.  But when they fail to enforce these rights, they are essentially failing to hold up their end of the deal.  When that happens, the terms of the deal, or the relationship as a whole, should be reevaluated.

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[1] https://www.youtube.com/watch?v=t866gz_pH2Q

[2] https://www.tiktok.com/@swshisgay/video/7404249857785056558?is_from_webapp=1&sender_device=pc&web_id=7421619925998355999

[3] https://www.billboard.com/lists/kanye-west-ye-sampling-lawsuits-full-list/artist-revenue-advocates-v-ye/

[4] https://soundcharts.com/blog/how-the-music-publishing-works

[5] McLeod, K., DiCola, P. (2011). Creative License: The Law and Culture of Digital Sampling. United Kingdom: Duke University Press.