Abstract

http://ssrn.com/abstract=1553890
 


 



Sequential Musical Creation and Sample Licensing


Peter C. DiCola


Northwestern University School of Law

February 15, 2010

Northwestern Law & Econ Research Paper No. 10-06

Abstract:     
All musical creation builds on previous works. But using fragments of existing musical works in a new work can often constitute copyright infringement. Copyright law, in cases like Bridgeport Music v. Dimension Films (6th Cir. 2005), has recently increased its restrictions on musicians who wish to engage in sampling, defined as the practice of using other creators’ sound recordings to create new music. The paper describes a model of copyright holders’ and samplers’ incentives to create in light of the need to negotiate licenses for sample-based works to avoid violating copyright law. Even in the absence of traditional transaction costs or royalty stacking, a distinct kind of inefficiency emerges. Green and Scotchmer (1995) have shown that, in the patent context, bargaining may not divide the profit from the sample-based derivative work between upstream and downstream creators in a way that provides both groups with sufficient incentives to create. This paper builds on and extends Green and Scotchmer’s theory by showing that innovation occurring in sequence presents a reciprocal problem. Both upstream and downstream creators have incentive constraints; pure theory cannot say which incentive constraint is less likely to be satisfied. This problem is exacerbated in the sample-licensing context because ex ante agreements are not usually possible. An optimal system for regulating sequential creation would account for the incentives of both upstream and downstream creators, to the benefit of both groups and the public. Congress and the courts have probably failed to achieve this balance, since the economic analysis of courts (especially the Sixth Circuit) has focused mainly on upstream creators’ incentives.

Number of Pages in PDF File: 34

Keywords: copyright law, intellectual property, licensing, bargaining, sequential innovation, digital sampling

JEL Classification: D45, K39, O31, O34

working papers series


Download This Paper

Date posted: February 17, 2010  

Suggested Citation

DiCola, Peter C., Sequential Musical Creation and Sample Licensing (February 15, 2010). Northwestern Law & Econ Research Paper No. 10-06. Available at SSRN: http://ssrn.com/abstract=1553890 or http://dx.doi.org/10.2139/ssrn.1553890

Contact Information

Peter C. DiCola (Contact Author)
Northwestern University School of Law ( email )
375 E. Chicago Ave
Unit 1505
Chicago, IL 60611
United States

Feedback to SSRN


Paper statistics
Abstract Views: 686
Downloads: 131
Download Rank: 128,909
Paper comments
No comments have been made on this paper

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo6 in 0.235 seconds