Are the Courts Singing a Different Tune When It Comes to Music?: What Ever Happened to Fair Use in Music Sampling Cases?
IP Theory, vol. 5, no. 1, 2015
19 Pages Posted: 9 Mar 2015
Date Written: 2015
As "fair use" has become more common as a defense to copyright infringement, often successfully, it has not gained any ground in cases involving music sampling. In the years since Campbell v. Acuff-Rose Music, Inc., we have seen the introduction of "transformative use" to fair use analysis. "Transformative use" has led to the holdings that thumbnail reproductions of photographs, parodies of novels, parodies of advertisements, changed artworks, the inclusion of legal briefs in searchable databases, the inclusion of music in film, and the mass digitization of millions of books are all "fair use." Almost every day we read of another example that would have been copyright infringement pre-Campbell, that is "fair use" post-Campbell. Everything is fair game, except for music sampling. Why is there such hostility toward music sampling, a practice that if the courts followed their "fair use" doctrine, would be allowable as a "fair use?" This article looks at the difference between sampling a sound recording, a musical composition, and/or both. It also looks at expanding the compulsory license provision to allow for sampling.
Keywords: copyright, music, sampling, fair use, transformative use, parody, compulsory licensing, mechanical license
JEL Classification: K11, K39, Z00
Suggested Citation: Suggested Citation