The explosive growth of the Internet and the widespread availability of professional-grade editing tools have democratized and decentralized the music production landscape. Economic transformations have preceded shifts in intellectual property (IP) law, leaving courts and policymakers playing catch-up and creating a climate of professional uncertainty. Within this uncertainty, certain questions are proving to be persistently problematic. For example, even as questions regarding its scope become more and more critical, “fair use” remains one of the most underdeveloped concepts in IP law. The lack of commonsense interpretive principles to guide this doctrine has created a patchwork of conflicting precedents across circuits that risks chilling innovation in the music industry and in similar creative professions.
One crucial issue in music law revolves around the appropriate legal approach to music sampling—“repurposing a snippet of another artist’s music”—in creative projects. Since sampling always involves the reuse of another individual’s intellectual property in one’s own production, the practice necessarily triggers questions of copyright, transformation, and ownership. So far, however, no distinct statutory regime exists that specifically addresses the sampling question. Moreover, the issue fits uneasily within the bounds of current case law, which is divided across circuits, resulting in persistent uncertainty about the applicability of the various doctrines involved. Accordingly, in the following analysis, I offer a novel proposal for moving the legal framework for music sampling closer to the appropriate-use standards that exist in other professions. My argument proceeds by first emphasizing the significance of this issue in the music-production context (particularly given current industry trends), and subsequently sketching corrective suggestions in the realms of both commercial norms and legislative reform.