Sampling Increases Music Sales: An Empirical Copyright Study
53 Pages Posted: 20 Aug 2018 Last revised: 1 Feb 2022
Date Written: August 4, 2018
This Article presents an empirical study of digital sampling’s effect on the sales of sampled songs and — based on the collected data — argues that a reassessment of fair use in this area is needed. To conduct the research, a group of previously sampled songs was identified and sales information for these works collected. The analysis found, to a 99.99% degree of statistical significance, sales of sampled songs increased after being repurposed in a new work. The Supreme Court instructs that the most important consideration in analyzing fair use is the effect on the market for the original. Evaluating a set of songs sampled by works appearing in the Billboard Music Year End Charts for 2006-2015 found increases in sales for the earlier works post-sampling. These gains were enhanced where the sample included lyrics from the original or was pervasively used throughout the new song. Findings of this nature favor judicial determination that sampling constitutes a fair use (and thus no license is needed), but they are not conclusive. In evaluating fair use, courts must also review the influence that a new work has on extant licensing markets to create derivatives of the original. Thus, to the extent a market for licensing copyrighted songs properly exists, influence on this market should be considered in addressing sampling and fair use. This paper argues that the current sample-licensing market is a product of aberrant anti-sampling caselaw and a want of relevant information (such as the data in this study) which incented risk-averse actors to purchase unnecessary licenses. Evaluating digital sampling and copyright law through this lens warrants a whole-cloth review of whether the practice is a fair use. Based on evidence provided herein, this article asserts that sampling should be a presumptive fair use in certain instances that maximize the new work’s capacity to increase sales of the original. Such a presumption furthers the goal of encouraging creative activity without hindering the copyright owner’s capacity to financially gain from their work. Lastly, while the genesis of this investigation was application of the fair use doctrine to sampling, the findings are applicable outside this limited purpose. The article applies its results in the realm of private law through a law and strategy lens. Forward thinking music firms should reframe their approach to sample licensing to achieve a competitive advantage. This goal can be achieved by deviating from the norm of zealous sample policing, and instead offering costless sample licenses to maximize the free advertising and increased sales associated with therewith.
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