Sampling the Circuits: The Case for a New Comprehensive Scheme for Determining Copyright Infringement as a Result of Music Sampling

Music sampling continues to be the linchpin of a variety of musical styles including rap, hip-hop, house, and dance music, and has even become prevalent in rock music. The practice of sampling involves taking pre-existing sound recordings and using portions of those recordings as elements in a new musical composition. The amount of the work sampled can range from taking the entire “hook” or chorus/refrain from a musical composition to smaller elements, such as a riff or even one or two notes or words.Music sampling, as it pertains to copyright law and copyright licensing, is a real and current issue. As recently as November 3, 2010, the United States Copyright Office began taking comments, at the direction of Congress, as to whether copyright protection should be extended to pre-1972 sound recordings. Among the peripheral issues implicated by this potential extension was how such an extension might affect sampling of pre-1972 recordings. Moreover, one example that perfectly illustrates the current implications of sampling on copyright law is what one commentator calls “the Girl Talk dilemma,” referring to the mash-up artist Girl Talk. On November 15, 2010, Girl Talk made available downloads of his album All Day free of charge on the record label Illegal Art. This freely distributed album, which contains a high number of samples — none of which have been licensed — raises serious questions regarding the legality of this release. Upon first listen to the opening track, “Oh No,” I easily identified samples of Black Sabbath’s “War Pigs,” Ludacris’ “Move Bitch,” Cali Swag District’s “Teach Me How to Dougie,” Jane’s Addiction’s “Jane Says,” the Ramones’ “Blitzkrieg Bop,” and Missy Elliot’s “Get Ur Freak On,” just to name a few. In light of current industry practices, it is hard to imagine how Girl Talk could release such a record without raising questions as to whether his uses of these samples constitutes copyright infringement or fair use. While this is an extreme example of the use of sampling in contemporary music — as one commentator notes, Girl Talk’s work adds virtually no original content to accompany the samples of other artists’ work — it clearly illustrates the point that copyright infringement by way of music sampling is a current issue.In its current state, copyright law and judicial interpretation of the same have been relatively hostile to samplers who fail to obtain licenses from the relevant copyright holders of musical compositions or sound recordings — both of which are protected as separate copyrights under Title 17 of the United States Code. Due to this hostility, the licensing and clearing of samples has become a major source of revenue for record companies and music publishers alike. For example, the famous record Paul’s Boutique by the Beastie Boys, which was comprised of nearly 95 percent samples, required over $250,000 in licensing fees alone. More recently, Kanye West reportedly came very close to licensing a small sample from Lauryn Hill‘s MTV Unplugged record for over $150,000. Unfortunately, in light of evidence suggesting that the financial viability of record companies has diminished significantly, these licensing agreements will likely continue to become more expensive due to an effort by record companies to generate sufficient revenue to remain viable business organizations. Due to legal uncertainty regarding the contours of what is and what is not actionable infringement, by and large, in order to avoid litigation, artists are encouraged to either license even the smallest samples or refrain from sampling — one of musical artists‘ most creative tools — altogether. In light of the aforementioned issues, this Note suggests that in order to make copyright law conform to the constitutional purpose of copyright protection, promote creativity, and provide clarity for musical artists, a more robust paradigm for determining infringement as a result of sampling is needed. Part I of this Note provides a discussion of the history and industry practices regarding music sampling, describing how sampling works, the technology involved, and why sampling is valuable to musical artists. Part II lays out the general law that affects sampling. Part III examines the legal difficulties resulting from the way copyright law treats music sampling and the impact of this treatment on creativity. Finally, Part IV suggests a comprehensive scheme to balance the competing interests of samplers and copyright holders by creating realistic and appropriate protections for copyright holders, while still accommodating the creativity encouraged by the ― Copyright and Patent Clause‖ of the Constitution and embracing technology-based creativity involving the use of sampling.