This article examines the deleterious impact of copyright law on music creation. It highlights hip hop music as an example of a genre significantly and negatively impacted by 1) the per se infringement rule applied in some instances to cases involving unauthorized sampling of sound recordings; and 2) traditional (and arguably erroneous) assumptions in copyright law and policy of independent creation and Romantic authorship.
For decades hip hop producers have relied on the innovative use of existing recordings (most of which are protected by copyright), to create completely new works. Specifically, cuttin’ and scratchin’, digital sampling, looping and (most recently) mashing are all methods of creating music and are all integral parts of the hip hop music aesthetic. Collectively these creative processes are the hallmark of the type of innovation and creativity born out of the hip hop music tradition. And hip hop artists and producers from Chuck D, Queen Latifah, A Tribe Called Quest and M.C. Lyte to The RZA, Missy Elliott, Dangermouse and Jay Z have employed the sampler more as a musical instrument or palette than a tool of expediency or theft. But when done without the permission of the borrowed work’s copyright holder, sampling is at odds with copyright law. Unfortunately, copyright fails to acknowledge the historical role, informal norms and value of borrowing, cumulative creation and citation in music.
Additionally, different copyright infringement standards are applied to the two types of music copyright (the musical composition and sound recording). Further, and arguably more troubling, different infringement standards are being applied by the circuits to sound recording infringement cases resulting in a split in the circuits. The per se infringement rule articulated in the leading digital sampling case, Bridgeport v. Dimension Films (410 F.3d 792), as compared to a recent decision with analogous facts but an opposite outcome under a traditional infringement analysis in Saregama India Ltd. v.Mosley (687 F. Supp. 2d 1325), is but one poignant example.
Courts in the Sixth Circuit apply a per se infringement standard when a defendant copies any part of a sound recording. By contrast, courts in the Eleventh Circuit consider substantial similarity and the de minimis defense traditionally applied in all infringement cases. These differences, in turn, have lead to unclear judicial definitions, distinctions and interpretations for the role of substantial similarity and what constitutes a de minimis use, a fair use, and a derivative work. The resulting incongruent decisions reflect an inconsistent application of federal law. This inconsistency threatens to diminish both the quality and quantity of second-generation cumulative musical works. Accordingly, copyright law’s fragmented application is proving troublesome for the music industry, generally, and for music genres like hip hop in particular.
Ultimately, this article suggests that music copyright reform is needed and, perhaps, inevitable as technology continues to outpace and stress the law just as the law continues to stress and under-perform in balancing the rights/access continuum. To that end, this article posits that any fix should sample patent to remix copyright. By this I mean music copyright reform should consider and incorporate policies supporting reverse engineering in the patent context, which encourages and values cumulative creation to bolster innovation.
Intellectual property should be most narrowly tailored when innovation in the field tends to be highly cumulative. Such is the case in the creation of music. The need for narrowly-tailored intellectual property laws is especially valid in light of the essential role to both of access to first-generation works and a firmly established custom of borrowing in the creative process.
Therefore, copyright law must be remixed to achieve an optimal balance between a copyright holder’s exclusive rights and the legal space a second generation innovator needs to build upon existing works in order to create new ones in cumulative creative genres like music.
Download the draft of Sampling, Looping, and Mashing … Oh My!: How Hip Hop Music is Scratching More Than the Surface of Copyright Law by Tonya M. Evans