Designing a Creator-Friendly Approach to Music Sampling, by John Ehrett*
Copyright laws have never fully kept apace with technological change, and some questions have proven to be endlessly thorny. One of these problems is music sampling—the process by which musical artists mix samples of other artists’ content into their own productions. Given the widespread availability of digital editing tools like GarageBand and Logic Pro, this problem is likely to persist for years into the future.
Music sampling issues continue to vex courts. Judges have been forced to engage in metaphysical gymnastics about what exactly is illicitly “taken” when a song is sampled without permission or a paid license. Does sampling a four-note cue constitute appropriation from a fixed physical medium (like stealing parts of an invention) or is it a theft of intellectual work product (like plagiarizing text)?
In a Comment recently published in the Yale Journal on Regulation, I argue that the time has come for a dramatically different approach to music sampling, one that focuses on attribution in lieu of licensing. Digital-era developments have substantially elided the past distinction between physical and intellectual takings. Moreover, contemporary best practices in other creative and professional fields allow for the incorporation of others’ content alongside one’s own, as long as proper attribution practices are followed.
The new rule I propose is simple: absent purchase of a license, producers may freely incorporate music samples (of limited duration) into their own works, but must explicitly acknowledge (in the distribution and marketing of said work) any artists whose content is sampled.
While this rule might appear to be exceedingly sampler-friendly, this actually rules out any covert, permissionless incorporation of another artist’s music into one’s own work. Unless a license is purchased or consent is given, any sampling must be disclosed up front. This rules out the risk of samplers using a “de minimis” exception as an end run around copyright laws.
There are several advantages to this approach: greater innovation on the parts of producers, greater market exposure for artists whose content is sampled, and greater access to “orphan works” and pre-1972 sound recordings whose copyright status is unclear. Viewed in strictly financial terms, this new rule can produce a win-win scenario for both music samplers and the original artists.
The best way to make this change would be through a legislative tweak. While courts could in theory move toward such this norm independently of Congress, an explicit adjustment to Section 114 of the Copyright Act would entrench the norm and readily settle the question. This proposal would not require radical changes to copyright theory writ large, but would work as a small-scale accommodation that recognizes the persistent need for a creator-friendly legal regime.
*Yale Law School, J.D. expected 2017; Student Fellow, Information Society Project. John is on Twitter @johnehrett.