MILKSHAKE

By now, you are probably aware of Kelis’ ongoing grievance with Beyonce’s new album Renaissance, but if not, here’s a quick refresher. Last Thursday, Kelis posted a video relaying her resentment and dismay at learning that a song from the upcoming album, “Energy,” apparently used a sample (or interpolation, we’ll get into the differences later) of her song “Milkshake.” Kelis’ objected to Beyonce’s representatives neglecting to contact her for approval for using the snippet in “Energy.”

Of course, once the wider internet caught wind of Kelis’ complaints, a widescale donnybrook ensued that found fans taking sides between the two artists to argue whether Kelis deserved such a contact, Beyonce did anything wrong, or whether some other factor was to blame between the two. Even iconic songwriter Diane Warren weighed in to offer her own sorta shady take on songwriting, sampling, and how such things should be credited. Things came to a head when Beyonce removed elements of “Energy” from DSPs on Tuesday.

However, in all of the fuss, it seemed that more than anything else, fans were confused by the difference between what an interpolation and a sample are, let alone the mechanics of how songwriting credits are issued. Many folks still can’t tell where the interpolation appears in the song, despite her leaving the actual interpolation untouched. It all seems very complicated, so I reached out to an expert to help clear things up.

Naima Cochrane is an industry veteran with 20 years of experience working in entertainment law alongside the late, great Reggie Osse — aka Combat Jack — as well as a journalist who has written for major publications like Billboard, Mic, Vibe, and Vulture. Her Music Sermon Twitter lectures draw massive engagement from fans as she discusses the history and legacy of Black musical movements and culture-defining moments of the past three decades. She graciously agreed to a Zoom interview to sort out the terminology, backstory, and impact of this fraught situation, as well as whether Kelis has a point. “The whole thing is confusing for folks,” she says. Hopefully, this will help make it less so.

So, let’s just get to the root of what we think this dispute between Kelis and whoever she’s disputing with is about. She didn’t like that she wasn’t contacted for clearance for what she believed to be at the time to be a sample of her song “Milkshake” on Beyonce’s new album Renaissance.

Well, at first she didn’t think it was “Milkshake.” She got information about another track initially from a Beyonce fan site before the album came out. I think it was Beylegion who said that Beyonce was sampling. And that was prerelease.

And what she wound up using was an interpolation of drums from “Milkshake?”

Yeah, that kind of… That basic, kind of Neptunesish drum beat that’s under the track. The “la, la, las” were credited to… I know people are debating whether those were part of the sample or interpolation, but those should be credited to Teena Marie.

Okay, so why do we think that this turned Kelis off so much?

Well, I think it’s a couple things. I haven’t seen the original post that Kelis reacted to, but apparently, the first mention that Kelis saw used something like Beyonce was either collaborating with people including Kelis, or collaborating with Kelis, but there was something about collaboration. And also, like I said, they named a different track.

I think that that language triggered Kelis. She’s in a space. She recently lost her husband, which I’m going to acknowledge and dare to say if she’s already in that space of grieving, the perception of additional loss or especially unfair loss could possibly be a spark. But also, Kelis has been increasingly vocal lately about the fact that she feels Pharrell and Star Trak gave her a bum deal, specifically that she contributed more as a writer to the songs that she performs than she’s been given credit for and that Pharrell [cheated] her out of her publishing.

Is it not standard practice to contact someone when you want to sample or interpolate their work?

She made it seem as though it was standard practice in the music industry for an artist to contact a performer — and by performer, I mean the person who sang the song, even if they didn’t write and produce the song. Even if that person isn’t a publishing rights holder to just give a, quote, unquote, “heads up,” a courtesy heads up. In theory, I can see why people think this makes sense. In reality, if you understand how extensive the clearance process is for an album, you would understand why this is not realistic. This is not a practice that happens.

First of all, there’s two things that people don’t do: even when artists are getting clearance for samples from artists that they’re cool with, Beyonce did not call Pharrell and say, “I’m about to sample ‘Milkshake.’” That is not a conversation that happened. What happens is the lawyer contacts the other lawyer. That lawyer goes back to their client, “Beyonce has an interpolation on a song. She’s offering you this percentage. Are you cool? Yeah? No?” Boom.

The only time artists even contact artists directly when we’re talking about a sample or interpolation for clearance is when there’s a serious deference situation going on like maybe it’s a new artist and they’re worried that this other artist will pass and they really want to appeal to them directly, or when there’s some kind of impasse in the approval so they need to talk to each other to make an appeal. Maybe somebody wants to change some lyrics. For example, Stevie did that with Coolio, for “Gangsta’s Paradise.” He wouldn’t approve “Pastime Paradise” until Coolio changed some lyrics.

And as far as alerting Kelis, who I presume is not the publishing rights holder?

The second part is nobody calls people who aren’t copyright holders to say, “I’m using a song you performed on,” because what purpose does that serve? Because Kelis can’t get a check off of [something she’s not legally entitled to]. And this is the part where people are stuck. Because people are like, “Well, if she knows that Kelis is fighting Pharrell on her publishing, she could show support.” And that’s where I’m like, “Okay A, that presupposes that Beyonce agrees that Kelis has a case against Pharrell,” because Kelis never filed a piece of paper against Pharrell, Neptunes, or Star Trak.

B, though, more importantly, this would be Beyonce going on record as saying she supports the theory that Kelis has the standing in publishing a claim for this record. Beyonce can’t get Kelis paid for this record. That’s the thing that some people don’t seem to understand. No matter what Beyonce does, she can’t arbitrarily cut Kelis in on this record. She can’t. That’s not a thing. People seem to think, “Oh, if she put her name in the credits, Kelis is going to get paid.” No, she’s not ’cause Kelis is not an owner of the song. Period. So Beyonce credited her as a performer of the song. She did that on her website, which is different than a legal line.

300 credits on her website because her intention was to actually give the people who don’t usually show up in credits because they are not owners of the song or composition, lyrics or composition, give them a chance to actually be credited.

Yeah. Because of course, that would spark someone’s interest and they would discover someone and maybe go play their music and get them that streaming or a record sale or something.

Exactly. It’s a discovery thing. Ms. Tina [Knowles, Beyonce’s mother] said she really was conscious of trying to make sure people who maybe don’t always get a look, got the look. She credited Clark Sisters on “Church Girl.” She credited Robin S. on “Break My Soul.” So the thing about the conversation is that then it took this really weird turn that all things Beyonce and Jay tend to take, where because Beyonce is who she is, she is held to this really ridiculous standard, right?

So that’s the first thing. I don’t believe that Kelis is a co-writer on “Milkshake.” Even if she were, there are two parts to song ownership. There is lyrics and there is composition. This is aside from the masters ownership, which I know is confusing. There’s masters and there’s publishing. The masters is ownership of the recorded song itself, the version that’s on an album, the version that was released for sale. Then when you’re talking about an interpolation, we’re not talking about masters clearance. We’re talking solely about publishing.

So we are looking at either composition and lyrics or both. Even if Kelis was a co-writer of “Milkshake,” she would not have been part of this because the producers of “Energy” interpolate the track, not the lyrics, not the vocals. So for the people who are like, “Well it’s Kelis’s song,” it’s also Pharrell and Chad’s song. Kelis performed that song. It is not solely Kelis’s song. There’s nothing of Kelis on “Energy.”

One of the things that I wanted to ask you about was that we’ve seen a lot of these contract publishing rights disputes come up a lot more in recent years.

I have a couple of answers and they go in a couple of different directions. The first thing is that sometimes artists get great counsel and they don’t listen. Sometimes it’s pressure. Sometimes it’s promises that sound good in the moment. Sometimes it’s “Who you going to listen to, them or me? You should trust me. I’m your family. I got your best interest at heart.” It’s any number of things.

There is also, like Kelis, there is a production deal. Kelis was not signed directly to a major. Kelis was signed to Star Trak. Now, when you are signed to a production deal, that means that that company, like with a major label, is going to front all the costs to develop you, to make your music, to basically put together a whole package, and then shop you to a label. But shop you as part of them. It’s a package deal. So the production company gets signed to the label. So what happens is there is a pass-through before you even see your money. And usually, when you hear artists complain about they ain’t seen a dollar, they ain’t see no dough, not even an advance, it’s because they were to a production deal.

So why do we think Beyonce removed the vocal portion and not the actual interpolation, which was the drums?

Right. She did not remove the actual interpolation of the song. That’s important because even outlets are reporting stuff like, “Beyonce removed contested Kelis sample.” There was no Kelis sample, that was the point. People were arguing that they heard Kelis’ voice in those “la la las.” I ain’t hearing nobody talk about the fact that Grace Jones was on the album, but we talking about Kelis all day.

I think, knowing a little bit about how [Beyonce’s] mind works and how she operates from a business perspective, rather than have this conversation distract from the larger conversation about her album, she was like, “Let me just remove this entire distraction. Let’s just take it off the table. Boom. Done.”

So how do artists avoid getting into situations like this one, or like how we’ve been talking about Megan Thee Stallion with 1501 or Fivio Foreign with Mase?

I think there does, unfortunately, have to be some self-ownership with artists who are looking to get in the business to educate themselves or to take time to find a really good manager and to ask a lot of questions. Honestly, that’s my solution for everything. Ask all the f*cking questions, ask every goddamn question. Don’t be afraid to sound stupid. If they don’t want to answer it, ask them again. Because if you don’t, or if you try to be too cool for school, or if you’re going off of an assumption, that’s how you end up X years later being like, “Well, I don’t know what happened with my deal.”