Photo of Alice Glass of Crystal Castles by jean hambourg. Used under a Creative Commons license.

Have you been following the most recent Crystal Castles controversy? Broken well over a month ago (but only shortly after the Trevor Brown incident, covered here by David Topping), the claim is that Crystal Castles knowingly broke Creative Commons copyright licenses by misappropriating samples for several of their early songs. The most famous case is the track "Insecticon," uploaded on the MySpace maintained by Lies Records, one of the record labels for the band. The track has been shown to extensively sample the Lo-Bat track "My Little Droid Needs a Hand" and the drums from the Covox track "Sunday," a story initially broken on the 8bitcollective forum.

You might wonder why we haven't mentioned this controversy before, but that's because we've been fruitlessly attempting to make contact with the band so that they could offer their side of the story. It's no secret that their manager Mikey Apples was unhappy with the story we published about Trevor Brown (you need only look at the comments section); when Topping contacted Apples with information about the latest accusation, telling the manager that Torontoist was interested in another story and wanted another statement from the band, Apples responded: "Let me know when you feel like writing something positive about a local band…[it] just feels like you are contributing to a lot [of] negative nonsense." The newest accusation, Apples said, was "news to him," and anyway, he claimed "My Little Droid Needs a Hand" "sounds little like ours…which is not even an 8-bit tune."

Until now, the only official statement released to Torontoist was related to the track "Insecticon" ("'Insecticon' is an unreleased bootleg/remix created in 2004, credited to Lo-Bat on Crystal Castles' secondary Myspace page. A fan had ripped it to mp3 off the Myspace page without crediting the artist. The band had no control over this and have never intended to release the track in digital or hard format.") Still available at Lies Records' MySpace, the track has been subtitled "CC vs. Lo-Bat" (which does not acknowledge the use of a Covox sample), and is newly available under a Creative Commons license.

As our original Crystal Castles article was quoted extensively over at Pitchfork, we can only assume that the band decided to go straight to Pitchfork this time rather than face our line of questioning on the issue—because last week they responded to the controversy on the site.

Sadly, what they don't say reveals far more than what they do.

Images of Crystal Castles and fans by icanteachyouhowtodoit. Used under Creative Commons license.

The most important part of Pitchfork's article is a statement from Crystal Castles member Ethan Kath in response to Pitchfork's summary of the case laid against his group by 8bitpeoples ("8bitpeoples alleges that the duo 'violated every term of the [Creative Commons] license' in its use of music created by one of the collective's artists, a musician called Lo-Bat. They also claim Crystal Castles employed a drum beat from another chip music artist, Covox, 'in no less than four…songs.'"). Though they do not specify the songs in the article, the tracks Crystal Castles have been specifically accused (here and here) of using samples from Lo-Bat and Covox are:

"Loving and Caring" (samples "Sunday" by Covox)
"Mother Knows Best" (samples "Tizzy" by Lo-Bat, "Sunday" by Covox)
"Insecticon" (samples "My Little Droid Needs a Hand" by Lo-Bat; "Sunday" by Covox)
"Bitter Hearts" (samples "My Little Droid Needs a Hand" by Lo-Bat; "Sunday" by Covox)
"Chess Mess" (samples "My Little Droid Needs a Hand" by Lo-Bat)
"VidKids" (samples "Tizzy" by Lo-Bat; "Sunday" by Covox)

One more track, a remix of the Comic Book Fever track "Cry Babies," features an unapproved sample of "Lamerina" by 8bitpeoples artist X-Agon, and is still available at the Comic Book Fever MySpace under the title "CBF vs. Crystal Castles."

Though we do not know if Pitchfork referred to specific tracks in their discussion with Kath, he responds to the accusations en masse by stating that "these infringing songs are early unreleased tracks which were never performed." From this, Pitchfork concludes that "according to them, none of the music that contains uncleared samples has been released" and "Crystal Castles did create derivative works based on the music of chip music artists without proper attribution (though the attribution wasn't the band's doing)—two Creative Commons agreement no-no's. But since they didn't release or perform the works—and deny that they were responsible for disseminating them—it would be hard to mount a case for the third Creative Commons violation ('commercial gain')."

This conclusion is unusual, because it takes only a very short amount of research to find that two of the tracks from Crystal Castles listed above—"Mother Knows Best" and "Loving and Caring"—feature unapproved samples and are commercially available.

"Loving and Caring," which uses Covox's drums from "Sunday," is available on the Alice Practice EP and their eponymous full-length debut (available on CD and iTunes); and "Mother Knows Best," which samples "Tizzy" by Lo-Bat and Covox's "Sunday" again, is on a split 7'' with Health. The 7'' is still available in physical form.

These tracks are the most important in the case against Crystal Castles, and it's a weakness of the Pitchfork article that it's not clear if they were specifically discussed with the band. Either way, Kath is still committing the sin of omission when he told Pitchfork that: "I put these tracks together myself and then discarded them because I thought they were too poor for release…we did not want to release these tracks because we did not like the songs." Though he may only be referring to tracks such as "Insecticon," the question of why tracks featuring unapproved samples have been placed on official commercial releases from Crystal Castles still looms large.

We did ask Apples specifically about "Loving and Caring" and "Mother Knows Best" after the release of the band's "official statement," but he ignored the question responding only that he "submitted a statement about Trevor Brown to [Torontoist], and frankly, it was used minimally and selectively, and the overall tone, I felt, was biased. It left readers with enough wholes [sic] to pull the issue open even wider than before."

While Covox has never shown any interest in pursuing the band legally, we were pleased to find out from Lo-Bat that he has received "apologies both from the band and their manager; a contract to settle a financial compensation for 'Mother Knows Best'; and [a promise] to release all tracks using Lo-Bat samples under Creative Commons." "Which, by the way, they are obliged to do so in any case," he noted. In response to the band's characterization in the Pitchfork article that he "finds the controversy 'ridiculous,'" Lo-Bat stated that "that's a strong exaggeration of what I said to Mikey Apples on the phone. In that phonecall I told him I personally don't want to make a witch hunt out of it. But what they did was wrong and they should definitely have been more careful. However, I feel it isn't worth a war when there is a simple solution around the corner."

"They are making an effort to make things up, which is good," he added. "Once they fulfill all their promises above, the matter is closed. I think the reaction of the chiptune community was one of a strong and tight scene that really loves what they are doing, and I enormously appreciate the fact that they brought this whole matter to light. Otherwise I wouldn't probably know about it even today! But I do feel that some point certain commentators took it too far."

Though we agree that certain parties (especially on the original 8bitcollective forum thread) took the issue too far, and consider it very encouraging that the band are working things out with Lo-Bat on a personal level, we feel that Crystal Castles have not yet adequately responded in public to the charge that they knowingly broke the Creative Commons license by using unapproved samples on commercial releases.

Perhaps to patch up the wounds still open from this dispute (and despite the band's previous attempts to distance themselves from the chiptune scene that they were sampling from—"this whole 8-bit scene…we don't really have anything to do with. It's a completely different world." (Exclaim); "We both hate video games. We were just breaking apart electronics and toys to get annoying sounds." (NOW) Crystal Castles, according to Kath (quoted at Pitchfork) are "organizing a compilation of [their] favourite 8bit songs for release on Lies Records."

Which is nice! Perhaps they'll include some of our favourites—Sabrepulse, or indeed any of the artists at 8bitpeoples, the site that they originally sampled while claiming ignorance. There are hundreds of excellent artists offering their music for free there—but if Crystal Castles is going to sample any of it, they should really read the license first.