Sampling Unleashed? Migrating Visual Art Fair Use Principles into the Music Space

72 Pages Posted: 4 Jan 2020

Date Written: May 20, 2014


The recent evolution and application of fair use principles in the area of US copyright protection for the visual arts has moved in a direction that either signals the path for, or sets up a collision with, fair use in the context of music composition, performances and recording. The aggressive enforcement against music sampling often does not differentiate sufficiently between culpable infringement and transformative use that otherwise satisfies some or all of the remaining factors used to determine if a fair use defense is appropriate. There are questionable aspects of recent fair use cases in the visual arts. However, the cases and their approaches are worth considering as they may apply to, or can be adapted to apply to, other species of “appropriation art,” such as the sampling of recorded music for incorporation into new works.

Keywords: sampling, fair use, copyright, infringement, music, Seltzer, Cariou, transformative, appropriation, performance, Green Day, composition, recording, composer, authorship, originality, painting, video, film, concert

JEL Classification: K40, K49, O34

Suggested Citation

Rinkerman, Gary, Sampling Unleashed? Migrating Visual Art Fair Use Principles into the Music Space (May 20, 2014). Available at SSRN: or

Gary Rinkerman (Contact Author)

Drinker Biddle & Reath LLP ( email )

One Logan Square
18th & Cherry Streets
Philadelphia, PA 19103
United States
2022305178 (Phone)
2028428465 (Fax)


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