Care for a Sample? De Minimis, Fair Use, Blockchain, and an Approach to an Affordable Music Sampling System for Independent Artists

Fordham Intellectual Property, Media and Entertainment Law Fordham Intellectual Property, Media and Entertainment Law

Journal Journal

Volume 29

XXIX

Number 1

Article 1

2019

Care for a Sample? De Minimis, Fair Use, Blockchain, and an Care for a Sample? De Minimis, Fair Use, Blockchain, and an

Approach to an Affordable Music Sampling System for Approach to an Affordable Music Sampling System for

Independent Artists Independent Artists

Sean M. Corrado

Fordham University School of Law

, [email protected]

Follow this and additional works at: https://ir.lawnet.fordham.edu/iplj

Part of the Entertainment, Arts, and Sports Law Commons, and the Intellectual Property Law

Commons

Recommended Citation Recommended Citation

Sean M. Corrado,

Care for a Sample? De Minimis, Fair Use, Blockchain, and an Approach to an Affordable

Music Sampling System for Independent Artists

, 29 Fordham Intell. Prop. Media & Ent. L.J. 179 (2019).

Available at: https://ir.lawnet.fordham.edu/iplj/vol29/iss1/1

This Note is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and

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please contact tmelnick@law.fordham.edu.

Care for a Sample? De Minimis, Fair Use, Blockchain, and an Approach to an Care for a Sample? De Minimis, Fair Use, Blockchain, and an Approach to an

Affordable Music Sampling System for Independent Artists Affordable Music Sampling System for Independent Artists

Cover Page Footnote Cover Page Footnote

Senior Writing & Research Editor, Fordham Intellectual Property, Media & Entertainment Law Journal,

Volume XXIX; J.D. Candidate, Fordham University School of Law, 2019; B.A., English Writing &

Communications Rhetoric, University of Pittsburgh, 2014. I would like to thank Professor Ron Lazebnik for

his guidance and advice throughout the writing process, as well as the editors of the journal for their

editing and feedback. I would also like to extend a special thank you to Lindsey Corrado, Dylan LeRay,

Sabina Yevdayeva, and my parents for their unconditional love and support.

This note is available in Fordham Intellectual Property, Media and Entertainment Law Journal:

https://ir.lawnet.fordham.edu/iplj/vol29/iss1/1

181

Care for a Sample? De Minimis, Fair

Use, Blockchain, and an Approach to an

Affordable Music Sampling System for

Independent Artists

Sean M. Corrado

*

Thanks, in part, to social media and the digital streaming age

of music, independent artists have seen a rise in popularity and

many musicians have achieved mainstream success without the

affiliation of a major record label. Alongside the growth of

independent music has come the widespread use of music

sampling. Sampling, which was once depicted as a crime

perpetrated by hip-hop artists, is now prevalent across chart-

topping hits from all genres. Artists have used sampling as a tool

to integrate cultures, eras, and styles of music while experimenting

with the bounds of musical creativity. Artists whose works are

sampled have profited from royalties and the exposure of their

original work in modern art. However, the laws that shaped the

sample licensing system helped solidify financial and political

obstacles that prevent independent artists from sampling.

Therefore, while major label-affiliated artists can use their status

and financial capital to bypass the obstacles, it is practically

impossible for independent artists to afford sampling and

participate in modern music’s sonic creativity.

*

Senior Writing & Research Editor, Fordham Intellectual Property, Media &

Entertainment Law Journal, Volume XXIX; J.D. Candidate, Fordham University School

of Law, 2019; B.A., English Writing & Communications Rhetoric, University of

Pittsburgh, 2014. I would like to thank Professor Ron Lazebnik for his guidance and

advice throughout the writing process, as well as the editors of the journal for their

editing and feedback. I would also like to extend a special thank you to Lindsey Corrado,

Dylan LeRay, Sabina Yevdayeva, and my parents for their unconditional love and

support.

182 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXIX:181

INTRODUCTION .............................................................................. 183

I. THE ANATOMY OF MUSIC SAMPLING ............................ 187

A. The Spectrum of Sampling ...................................... 187

B. Legally Sampling: Acquiring Two Licenses ............ 190

C. The Cost of Sampling .............................................. 192

D. Defenses within Copyright Law .............................. 194

1. The De Minimis Doctrine and Sound

Recordings ........................................................ 195

2. The Fair Use Doctrine and Musical

Compositions .................................................... 196

II. OBSTACLES WITHIN THE LICENSING MARKET .............. 199

A. Struggling to Start the Sampling Process ............... 199

B. Market Attempts at Affordability ............................. 204

III. UNCERTAIN & UNPREDICTABLE JUDICIAL DECISIONS .. 206

A. The Judiciary and Sound Recording Samples ......... 207

1. Diverging Decisions of the De Minimis

Doctrine ............................................................ 207

2. A Dormant Fair Use Defense ........................... 212

B. The Judiciary and Musical Work Samples .............. 216

1. Drake, Beyoncé, and a Sample’s Fair Trans-

“Formation” ...................................................... 217

2. Girl Talk, Social Media, and the Prospect of

a “Market Benefit” ........................................... 222

IV. CURING THE COMPLEXITY OF THE LICENSING

SYSTEM THROUGH LEGISLATION .................................. 225

A. Locating Copyright Owners .................................... 225

B. The Possibility of Compulsory Licensing ................ 229

C. An Objectionable Push for Legislative Clarity ....... 231

V. ENHANCING THE SAMPLE LICENSING SYSTEM WITH

ORGANIZATION AND TECHNOLOGY .............................. 233

A. Sound Recording Solution: Tethering a

Legislative Compulsory License ............................. 234



B. Musical Composition Solution: Unified

Licensing System & Blockchain Technology .......... 237

1. Unification of the Licensing System ................ 238

2. Blockchain Technology to Track Copyrights

and Cut Transaction Costs ................................ 239

CONCLUSION .................................................................................. 243

2018] CARE FOR A SAMPLE? 183

INTRODUCTION

“The thing that pisses me off is that sampling still exists, it just

only exists for the motherfuckers who can afford it,” the owner of

the independent record label Def Jux, El-P, asserted in an interview

with professors Kembrew McLeod and Peter DiCola.

1

Music sampling, also referred to as “digital sampling,” is the

process of utilizing elements of a prior-released song within a new

composition.

2

The practice, which was popularized through hip-

hop music in the late 1980s and early 1990s, was met initially with

public outcry and harsh legal punishment.

3

In 1991, Judge Kevin

Thomas Duffy infamously scolded the use of sampling without

citing to any copyright case precedents.

4

He began his opinion with

the phrase “Thou shalt not steal,” granted an injunction to take Biz

Markie’s album off of the shelves, and recommended the case to

the United States Attorney for criminal prosecution.

5

The characterization of sampling as a sin has dwindled in the

modern-day music world.

6

Sampling, when done so appropriately,

is now considered a creative tool for artists to match new sounds

with elements from prior art.

7

Sampling is no longer limited to

1

See KEMBREW MCLEOD & PETER DICOLA, CREATIVE LICENSE: THE LAW AND

CULTURE OF DIGITAL SAMPLING 117 (2011).

2

8 DINA LAPOLT & SAMUEL J. FOX, SAMPLING, ENTERTAINMENT INDUSTRY

CONTRACTS ¶ 161.02 (Doug Nevin ed., LexisNexis 2018).

3

See Dean Kuipers, Vanilla Ice Returns Buff but Still Bland, L.A. TIMES, Sept. 10,

2004, at E23 (describing the critical and public backlash from Vanilla Ice releasing “Ice

Ice Baby,” which contained an unlicensed sample from Queen and David Bowie’s

“Under Pressure”); see also Grand Upright Music, Ltd. v. Warner Bros. Records, 780 F.

Supp. 182, 183 (S.D.N.Y. 1991) (ruling that Biz Markie’s unlicensed use of Gilbert

O’Sullivan’s “Alone Again (Naturally)” “violates not only the Seventh Commandment,

but also the copyright laws of this country”).

4

See generally Grand Upright Music, Ltd., 780 F. Supp. 182.

5

See id. at 185.

6

See id.; MCLEOD & DICOLA, supra note 1, at 99.

7

According to Matt Black, one half of the independent electronic music duo Coldcut,

a good appropriated sample has a good quality of its own and a “strong reference that

evokes cultural resonance.” M

CLEOD & DICOLA, supra note 1, at 99; see also Adam

Behr, Keith Negus & John Street, The Sampling Continuum: Musical Aesthetics and

Ethics in the Age of Digital Production, 21 J.

FOR CULTURAL RES. 223, 231 (2017) (“The

184 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXIX:181

solely hip-hop and R&B, as the practice entered the realm of

mainstream pop and songs containing samples now secure top

spots on the Billboard Charts.

8

Singles from pop artists like

Rihanna, Bruno Mars, Lady Gaga, Gwen Stefani, and Gotye have

all claimed number-one charting positions with the help of

samples.

9

Presently, songs that contain samples are depicted less as

stolen art in district court cases, and more often seen receiving

Grammy Awards.

10

Because of the popularity and commercial success of sampling,

as well as the legal landscape that mandates licensing, the

sampling market has become more active.

11

With the increase in

demand, copyright holders realized that licensing off samples of

their music could be a lucrative business in and of itself.

12

Superstars, with financial help from their major labels, are

choosing to invest in clearing samples for their next hit.

13

Because

techniques of cutting, pasting, chopping and looping that are applied to samples, whether

of prior works or bespoke products, match those used in other aspects of recording.”).

8

See Behr et al., supra note 7, at 224 (“Sampling is no longer exceptional but, rather,

embedded in commercial (and much other) popular music practice with significant

consequences for the aesthetics and ethics of music making.”).

9

See J.R ROTEM, E. KIDD BOGART & ED COBB, SOS, on A GIRL LIKE ME, (Def Jam

Recordings 2006) (noting songwriting credits for Rihanna’s use of Ed Cobb’s “Tainted

Love”); JEFF BHASKER & PHILIP LAWRENCE, Uptown Funk, on UPTOWN SPECIAL (RCA

Records 2015) (crediting Lonnie Simmons and Charlie Wilson for Bruno Mars and Mark

Ronson’s use of a 1979 hit from The Gap Band, and crediting Nicholas Williams for the

use of Trinidad Jame$’s “All Gold Everything”); W

ALLY DE BACKER, Somebody That I

Used to Know, on M

AKING MIRRORS (Eleven: A Music Company 2011) (sampling Luiz

Bonfa’s 1967 song “Seville”); STEFANI GERMANOTTA, Poker Face, on THE FAME

(Interscope Records 2008) (sampling Boney M.’s song “Ma Baker”); GWEN STEFANI,

Rich Girl, on L

OVE. ANGEL. MUSIC. BABY. (Interscope Records 2004) (crediting Sheldon

Harnick for use of the song “If I Were a Rich Man”).

10

Through case law and market examples, this Note will display how sampling,

although once notoriously described as stealing, is currently associated with critically

acclaimed composers and producers of all genres. See Behr et al., supra note 7, at 232

(“[Sampling] has thus become accepted into popular musical practice and distanced from

unease about ‘cheating.’”).

11

See Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 799 (6th Cir. 2005);

M

CLEOD & DICOLA, supra note 1, at 149.

12

See MCLEOD & DICOLA, supra note 1, at 93.

13

See, e.g., CARDI B, INVASION OF PRIVACY (Atlantic Records 2018) (crediting five

separate samples for the album, including twelve writing credits for “Be Careful’s” use of

Lauryn Hill’s “Ex-Factor,” which samples Wu-Tang Clan’s “Can It Be All So Simple,”

which samples Barbara Streisand’s “The Way We Were”).

2018] CARE FOR A SAMPLE? 185

the sampling process has drawn bigger players, copyright holders

have been charging greater upfront payments and royalty fees in

correspondence with the market demand.

14

While copyright

holders have seen an increase in their income, the influx of market

activity has left a group of artists struggling to sample.

15

Independent artists

16

and up-and-coming musicians have seen

greater exposure in the streaming era of music.

17

While large

record labels are still considered vital machines for an artist’s

commercial success, some independent artists have proven that

commercial success can now be achieved without the promotion of

a major label.

18

Streaming systems collect data on listeners’

14

See Jimmy Ness, The Queen of Sample Clearance: An Interview with Deborah

Mannis-Gardner, FORBES (Feb. 19, 2016, 8:00 AM), https://www.forbes.com/sites/

passionoftheweiss/2016/02/19/the-queen-of-sample-clearance-an-interview-with-

deborah-mannis-gardner/#724dd61064e1 [https://perma.cc/4DDN-DWTX] (detailing a

licensing transaction where an artist, who does not normally license their work for

sampling, cleared the use of sample for a six-figure sum).

15

See MCLEOD & DICOLA, supra note 1, at 119.

16

Independent music is defined in a creative manner and practical manner. It is often

associated with the ‘indie’ aesthetic which offers an alternative to mainstream popular

music. Practically, independent artists and labels are not owned or controlled by the

major labels, which allows for artists to have more creative control and artistic freedom

over their music. Worldwide Independent Market Report: The Global Economic &

Cultural Contribution of Independent Music, W

ORLDWIDE INDEP. NETWORK 15 (June

2016), http://winformusic.org/files/WINTEL%202015.pdf [https://perma.cc/JS6H-

BC3R].

17

See id. at 25 (finding that independent labels today have a yearly revenue of $5.6

billion, with $2.6 billion stemming from digital releases); see also id. at 38 (“[I]t is clear

that streaming has been hugely beneficial to independent labels in terms of share and

reach and it looks set to continue tipping the scales.”).

18

With streaming services now acting as a promotional tool, affiliation with a major

label is no longer necessary to negotiate a distribution deal. See id. at 32. Because

independent artists receive most of their income through music sales, many were

reluctant to jump into deals with streaming services; nevertheless, independent artists saw

streaming and social media as an opportunity to expand a fan base and increase their

revenue via performances and merchandise sales. See Ron Pope, An Independent Artist’s

Take on Spotify, T

UNECORE BLOG (Feb. 28, 2014), https://www.tunecore.com/blog/2014/

02/an-independent-artists-take-on-spotify.html [https://perma.cc/4VYG-RTVE]; see e.g.,

Chris Morris, Band Shines on Slow Road, V

ARIETY (Sept. 22, 2012), https://variety.com/

2012/music/news/band-shines-on-slow-road-1118059604/ [https://perma.cc/MD5G-

3ABN] (discussing how social media helped launch The Lumineers because people

shared eventual number one hit “Ho Hey” after it debuted at the end of a CW TV show.

Streaming catapulted the folk band to a triple platinum debut album) and Hao Nguyen,

How Macklemore Went Platinum as An Independent Hip-Hop Artist, S

TOP THE BREAKS

(Mar. 2, 2015), https://www.stopthebreaks.com/independent-case-studies/how-

186 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXIX:181

preferences and recommend artists that listeners may enjoy but

were previously unknown to them.

19

Currently, independent artists

make up nearly 36% of the U.S. music revenue share and

independent labels around the globe operate with an average of

forty artists.

20

Independent artists now contribute a significant

amount of streams to the overall music industry, and their request

to more affordably attain creativity should be recognized.

21

Even with their rise in popularity, independent labels and

artists cannot operate under budgets that incorporate the costs of

obtaining sampling licenses.

22

Owners of independent labels are

calling for a reformation of the sample licensing system to provide

independent artists a better opportunity to use sampling to

perpetuate musical culture;

23

but for now, mainstream artists are

dominating the sampling market with their checkbooks.

24

To better understand the struggle of independent artists who

wish to sample, this Note explores how judicial rulings, legislative

propositions, and marketplace controls have shaped the current

macklemore-went-platinum-independent-hip-hop-artist/ [https://perma.cc/22YV-SYEB]

(discussing that Macklemore and producer Ryan Lewis used online buzz through

YouTube views to propel themselves to six million downloads for their eventual lead

single, “Thrift Shop”).

19

See Worldwide Independent Market Report: The Global Economic & Cultural

Contribution of Independent Music, supra note 16, at 32 (“Although the majors still

dominate, the stronger focus on user-led discovery and behavioral recommendations

compensate for the traditional major label dominance of ‘store front’ inventory in both

physical and digital channels.”); see also AWAL Demystifies Streaming Data for

Independent Artists, K

OBALT MUSIC (Mar. 28, 2017), https://

www.kobaltmusic.com/press/awal-de-mystifies-streaming-data-for-independent-artists

[https://perma.cc/9XV3-9TCR] (noting how an application provides independent artists

with listeners’ locations, genders, ages, and time of listening across multiple streaming

services while also providing benchmarks against similar artists and methods for driving

engagement).

20

See Worldwide Independent Market Report: The Global Economic & Cultural

Contribution of Independent Music, supra note 16, at 19, 40.

21

See id.

22

See MCLEOD & DICOLA, supra note 1, at 119.

23

Matt Black, also the co-owner of the independent label Ninja Tune, states that

sample fees should be more reasonable and more accurately reflect their size and

significance. Id. at 100.

24

See id. at 173 (“Still, commercial success has become a threshold for being able to

clear samples. Without commercial success, it is quite difficult to have money and the

relationships to afford the transaction costs of licensing.”).

2018] CARE FOR A SAMPLE? 187

inefficient sample licensing system. Part I of this Note details the

varying forms of music sampling, the financial means necessary to

sample, and how the law currently dictates the licensing scheme.

Part II examines the barriers that artists face when attempting to

locate and negotiate a license for a sample, and the costs associated

with those barriers. Part III analyzes the judiciary’s impact in

determining the roles of the fair use and de minimis doctrines in

music sampling. Part IV presents the legislature’s attempts to cure

the complexity within the current licensing system. Finally, Part V

provides examples of how the sampling licensing market should

evolve to make sampling more affordable for independent artists

without weakening an artist’s copyright to her music. The

prevalence of sampling in today’s music is a byproduct of

technological advances, and technology may also aid in the

solution to a less expensive, more efficient licensing system.

25

I. THE ANATOMY OF MUSIC SAMPLING

This Part discusses the various appearances of a music sample

and what instruments are integral to its creation. Section I.A

illustrates the numerous shapes and sizes that sampling can take.

Section I.B discusses the copyrightable elements of a song and

how they are considered throughout the sampling process. Section

I.C estimates the cost associated with sampling copyright-protected

songs. Section I.D introduces the de minimis and fair use doctrines

as the two most prominent defenses to copyright infringement in

unlicensed music sampling matters.

A. The Spectrum of Sampling

As sampling spread across multiple genres of music and into

the mainstream, the technique has been understood as an

innovative art form rather than a violation of the Seventh

25

Jacqueline D. Lipton & John Tehranian, Derivative Works 2.0: Reconsidering

Transformative Use in the Age of Crowdsourced Creation, 109 NW. U. L. REV. 383, 390

(2015) (“Until the early 1990s, no court had considered whether such uses—only recently

made possible with the advent of splicing technologies, and quickly popularized in hip-

hop—constituted infringement or fair use.”).

188 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXIX:181

Commandment.

26

Experimenting with an innovative juxtaposition

of sounds, whether chopped or looped from previous compositions,

can provide artists with valuable and creative experiences in

music.

27

Artists can achieve this creative experience in a variety of

methods along a spectrum from being minimal and discrete to

using a sample as their song’s entire refrain.

28

The spectrum can be best exemplified with the samples used in

Kanye West’s “Good Life” and Jason DeRulo’s “Whatcha Say.”

29

In “Good Life,” West took a six-note progression from the

keyboard outro of Michael Jackson’s “P.Y.T. (Pretty Young

Thing),” slowed it down, lowered its pitch, and layered it behind a

T-Pain-emblazoned hook.

30

The sample is small and adds a playful

sound to a catchy refrain accompanying lyrics that promote

26

See Christopher Weldon, Note, The De Minimis Requirement as a Safety Valve:

Copyright, Creativity, and the Sampling of Sound Recordings, 92 N.Y.U. L. REV. 1261,

1266 (2017) (“The cultural import of sampling comes from two considerations: first, the

connection between sampling and creativity, and second, the importance of sampling to

many forms of modern music.”); see also Tonya M. Evans, Sampling, Looping, and

Mashing . . . Oh My!: How Hip Hop Music is Scratching More Than the Surface of

Copyright Law, 21 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 843, 856–57 (2011) (“The

sampler has ingrained aesthetic value to hip hop music and, ultimately, to music creation

as a whole. To understand the importance and pervasive presence of digital sampling in

hip hop on a broader scale one need only turn to the Billboard charts of the most

prominent albums. In 1989 only eight of the top 100 albums contained samples but by

1999 almost one-third of the Billboard 100 incorporated samples in some capacity.”).

27

See MCLEOD & DICOLA, supra note 1, at 99. (“Sampling artists draw on deep

musical and cultural traditions that are connected to the sounds they sample, whether they

are referencing a specific figure like James Brown or a funky decade like the 1970s more

generally.”); see also infra Section I.A for a discussion on the modern cultural and

financial impact of sampling.

28

Compare Kanye West’s “Good Life” Sample of Michael Jackson’s “P.Y.T. (Pretty

Young Thing),” WHOSAMPLED, https://www.whosampled.com/sample/2112/Kanye-

West-T-Pain-Good-Life-Michael-Jackson-P.Y.T.-(Pretty-Young-Thing)/

[https://perma.cc/XJ68-KC9N ] (last visited Feb. 8, 2018), with Jason DeRulo’s

“Whatcha Say” Sample of Imogen Heap’s “Hide and Seek,” WHOSAMPLED,

https://www.whosampled.com/sample/5614/Jason-Der%C3%BClo-Whatcha-Say-

Imogen-Heap-Hide-and-Seek/ [https://perma.cc/K73H-7RPP] (last visited Feb. 8, 2018).

29

Kanye West and Jason DeRulo obtained sample licenses for their respective use of

Jackson’s and Heap’s work. See K

ANYE WEST, GRADUATION (Def Jam Recordings 2007)

(denoting songwriting credits to Quincy Jones and James Ingram, the songwriters of

“P.Y.T.”); J

ASON DERULO, JASON DERULO (Warner Bros. Records 2009) (crediting

Imogen Heap as a songwriter for “Whatcha Say”).

30

Kanye West’s “Good Life” Sample of Michael Jackson’s “P.Y.T. (Pretty Young

Thing),” supra note 28.

2018] CARE FOR A SAMPLE? 189

working toward personal success.

31

On the other end of the

spectrum lies producer J.R. Rotem’s use of Imogen Heap’s “Hide

and Seek” in Jason DeRulo’s breakout hit, “Whatcha Say.”

32

Heap’s lyrics in her original song represented a child’s emotional

devastation from a parent’s divorce.

33

In DeRulo’s song, Rotem

took the exact chorus from Heap’s 2005 hit, pitched up the vocals,

and provided new percussion underneath.

34

DeRulo used the Heap

sample as the main hook for his song, which repeats seven times,

and surrounded it with lyrics that depict a man begging for

forgiveness after his partner discovered that he was being

unfaithful.

35

Because of the various lengths and uses of music

sampling, its position in the legal world has become difficult to

navigate.

36

Whether the sample adds small creative background

notes to a new song, or provides a large focal point of a new song,

digital sampling is a diverse assortment that can produce a myriad

of implications.

37

Since there are several forms of digital sampling, courts and

legislatures have found difficulty in applying general copyright

concepts.

38

The six-note sequence in “Good Life” could be

considered immune from infringement as it is small enough to be

considered a de minimis use of “P.Y.T. (Pretty Young Thing)”;

however, one must also consider that West sampled a memorable

melody from a largely successful hit of one of music’s most

31

Id.

32

Jason DeRulo’s “Whatcha Say” Sample of Imogen Heap’s “Hide and Seek,” supra

note 28.

33

Id.

34

Id.

35

Id.

36

See Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 798–99 (6th Cir.

2005) (“Advances in technology coupled with the advent of the popularity of hip hop or

rap music have made instances of digital sampling extremely common and have spawned

a plethora of copyright disputes and litigation.”).

37

Compare Kanye West’s “Good Life” Sample of Michael Jackson’s “P.Y.T. (Pretty

Young Thing),” supra note 28, with Jason DeRulo’s “Whatcha Say” Sample of Imogen

Heap’s “Hide and Seek,” supra note 28.

38

See Bridgeport, 410 F.3d at 799 (“The music industry, as well as the courts, are best

served if something approximating a bright-line test can be established. Not necessarily a

‘one size fits all’ test, but one that, at least, adds clarity to what constitutes actionable

infringement with regard to the digital sampling of copyrighted sound recordings.”).

190 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXIX:181

influential icons in Jackson.

39

The hook of “Whatcha Say” may be

considered fair use of Imogen Heap’s 2005 song as it was sonically

and narratively transformative, but it would greatly weaken a

songwriter’s copyright if it were considered fair use to use another

artist’s refrain as one’s own.

40

Answers to the issues in these two

specific incidents of sampling were never obtained, however, as

licenses for use were eventually granted.

41

Because sampling

licenses are usually either granted or denied, and when denied

subsequently removed from the new track, artists who wish to

sample are without much judicial clarity on how sampling fits

within copyright law.

42

It is a long road full of obstacles, road

blocks, and hefty tolls for artists who wish to sample and the

journey begins with seeking out specific licenses to authorize the

use of a prior work.

43

B. Legally Sampling: Acquiring Two Licenses

Per the Copyright Act of 1976, to directly sample a track every

artist who wishes to sample must clear, or obtain license for, the

two separate copyrightable elements of every song.

44

For one, an

artist wishing to sample must obtain license for the “musical

composition” of the song, which includes the lyrics and melody,

rhythm, and pronunciation.

45

The artist wishing to sample must

also obtain a license to use the “sound recording,” which is the

39

See Kanye West’s “Good Life” Sample of Michael Jackson’s “P.Y.T. (Pretty Young

Thing),” supra note 28; see also infra Part III.A for a discussion on the current de

minimis standard in music sampling.

40

Jason DeRulo’s “Whatcha Say” Sample of Imogen Heap’s “Hide and Seek,” supra

note 28; see also infra Part III.B for a discussion on the current fair use standard in music

sampling.

41

See KANYE WEST, GRADUATION (Def Jam Recordings 2007) (denoting songwriting

credits to Quincy Jones and James Ingram, the songwriters of “P.Y.T.”); J

ASON DERULO,

JASON DERULO, (Warner Bros. Records 2009) (crediting Imogen Heap as a songwriter

for “Whatcha Say”).

42

See infra Part III.A for a discussion on the scarcity of judicial rulings on sampling

cases.

43

See infra Part II.A for a discussion on the complexity of the current licensing

system.

44

See 17 U.S.C. § 102(a)(2), (7) (2012); see also ALLEN BARGFREDE, MUSIC LAW IN

THE

DIGITAL AGE: COPYRIGHT ESSENTIALS FOR TODAY’S MUSIC BUSINESS 41 (2d ed.

2017).

45

See 17 U.S.C. § 102(a)(2).

2018] CARE FOR A SAMPLE? 191

actual mixed and mastered track commonly referred to as the

“master” in the music industry.

46

Each copyrightable element

possesses its own difficult and stressful path for obtaining a

license, and quite possibly its own solution in remedying the

complex system.

47

Songwriters and their affiliated publishers usually own the

copyright to the musical composition, which is typically registered

through a performing rights organization (“PRO”) and publishing

agencies to collect royalties.

48

The copyright of the composition

consists of the “rhythm, harmony, and melody” that make up the

song as well as the “particular sequence and arrangement of lyrics

and/or music.”

49

The difficulty in obtaining a sampling license for

a musical work is the amount of time, diligence, and costs it takes

to find every owner of a certain musical work and negotiate deals

with each one.

50

On the other hand, many artists enjoy licensing

their musical work to other artists because it exposes their music to

a larger audience and, perhaps, a new platform.

51

Record labels usually own the copyright of the master of a

recorded song; therefore, artists who wish to sample must obtain a

license from the label itself.

52

While holders of a sound recording

copyright hold the rights of reproduction and preparation of

derivative works, their copyright is limited to only the sounds

within the actual recording.

53

Thus, the copyright does not extend

to an independent recording of the sound, even if an artist

intentionally simulates the sound recording.

54

Distinctively,

46

See 17 U.S.C. § 102(a)(7).

47

See infra Part V for a discussion on remedying the complexity of the current

licensing system.

48

See BARGFREDE, supra note 44, at 63–65.

49

Bridgeport Music, Inc. v. Still N The Water Pub., 327 F.3d 472, 475 n.3 (6th Cir.

2003).

50

See MCLEOD & DICOLA, supra note 1, at 119.

51

See id. at 93 (quoting Parliament-Funkadelic creator George Clinton) (“‘I was glad

to hear it, especially when it was our songs. You know, it was the way to get back on the

radio.’”). Samples from Clinton’s work would become a sample at issue in Bridgeport v.

Dimension Films, and Clinton was often in court to regain some of his copyrights lost in

a fabricated contract with his publishing company. See id. at 93–94.

52

See BARGFREDE, supra note 44, at 99.

53

See 17 U.S.C. § 114(a)–(b) (2012).

54

See 17 U.S.C. § 114(b) (2012).

192 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXIX:181

holders of the musical work copyright maintain a stronger

copyright that encompasses simulated sounds, with the additional

right of publicly performing or displaying their work.

55

C. The Cost of Sampling

Sample licenses may be difficult to afford for certain artists

primarily because artists must obtain the two separate licenses.

56

Generally, sound recording samples are licensed in exchange for a

lump sum payment or royalty rate, while licenses for musical

compositions return an ownership stake in the new song.

57

Copyright owners of the sound recordings and musical

compositions understand that both usually need to be cleared to

properly utilize the sample; therefore, the owners use the two-

license requirement as leverage in negotiations.

58

If the copyright

owner of one of the two elements infers that the artist who wishes

to sample obtained or could easily obtain the other element, the

owner’s copyright becomes much more valuable.

59

Although the terms of many licensing agreements are not made

public, members of the music industry and researchers with inside

sources have collected data estimates of the sampling market.

60

Professors Kembrew McLeod and Peter DiCola, through

interviewing producers and songwriters who have sampled work or

have had their work sampled, created a model sample license cost

matrix that describes an approximate value based on two metrics:

the profile of the sampled work and the substantiality within the

sampling work.

61

55

See 17 U.S.C. § 106 (2012).

56

See supra Part I.A.

57

See JOANNA DEMERS, STEAL THIS MUSIC: HOW INTELLECTUAL PROPERTY LAW

AFFECTS MUSICAL CREATIVITY 117 (2006); MCLEOD & DICOLA, supra note 1, at 204–06

(identifying trends in the contemporary music industry with the help of a two-

dimensional table from music lawyer Whitney Broussard).

58

See MCLEOD & DICOLA, supra note 1, at 165.

59

This is even more true for pursuing a musical composition copyright after obtaining

a sound recording copyright because a sound recording license does not do much on its

own unless the artist feels a fair use or de minimis argument is likely to work in his or her

favor. See M

CLEOD & DICOLA, supra note 1, at 169.

60

See id. at 204–05.

61

See id.

2018] CARE FOR A SAMPLE? 193

The profile refers to the sampled work’s recognition, star

power, and label affiliation, which can range from relatively

unknown, like a foreign folk singer, to superstar status, like

Michael Jackson.

62

Substantiality evaluates the length and “heart”

of the sample, which can range from small, like the “Good Life”

sample, to extensive, like “Whatcha Say’s” use of Imogen Heap’s

work.

63

Depending on the profile of the sampled work, even trivial

samples can exceed the budget limitations for any artist.

64

Due to

Jackson’s superstar status, the sound recording license for the six-

note sample of “PYT” may have cost Kanye West’s team between

$50,000 and $100,000 or between $0.12 and $0.15 per “Good

Life” sale.

65

Generally, such a small sample would also cost the

artist a complete assignment of copyright ownership for the

musical composition.

66

High profile works, but not necessarily

famous works, can cost up to $5,000 for a small sound recording

license and 25% of the newly created musical composition.

67

More extensive samples are also costly, although they usually

come from non-superstar sources.

68

Imogen Heap’s “Hide and

Seek” license, which authorized a large portion of the track as a

refrain, is likely to have fetched between $15,000 and $25,000 or

between $0.05 and $0.10 per “Whatcha Say” sale.

69

Additionally,

Heap most likely owns between 40% and 50% of the musical

composition for Jason DeRulo’s hit.

70

Heap looks to promote how

elements of “Hide and Seek” succeeded in gaining ownership

62

See id. at 204.

63

See id. at 205. This evaluation is a semblance of the amount and substantiality factor

of fair use. See infra Part III.B for a discussion of fair use.

64

This includes samples so trivial that they could be considered de minimis should the

artist choose to risk not clearing the sample. See M

CLEOD & DICOLA, supra note 1, at

204.

65

See id. at 205.

66

Artists may choose to allocate 100% of the composition right to the artist they are

sampling in order to use the sample to gain notoriety among a broad audience. See id.

67

See id.

68

See id.

69

See id.

70

See id.

194 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXIX:181

stakes and earning royalties through remixes and samples like

DeRulo’s in her “Life of a Song” digital exhibit.

71

Because of the associated costs, including samples on a song or

album would greatly exceed an independent artist’s budget.

72

Even

many popular up-and-coming artists affiliated with a major label

only work with a recording budget of about $150,000 for the

creation of an entire album.

73

When calculating the upfront

payments, transaction costs, and royalty/share payments on the

backend, obtaining licenses for multiple samples can even sink

popular albums into an unprofitable hole.

74

Sampling generates a healthy revenue for songwriters,

publishers, and record labels who license and use samples, but the

benefits remain in the hands of established and/or rich artists.

75

Because publishing companies and record labels determine the

market of sampling compositions and sound recordings, the sample

clearance system creates a noticeable gap between those who can

afford samples and those who cannot.

76

D. Defenses within Copyright Law

Currently, artists who wish to sample have few options to

legally defend unlicensed use.

77

Cases rarely reach a judicial

71

See infra Part V for a discussion of Heap’s exhibit.

72

See MCLEOD & DICOLA, supra note 1, at 118.

73

How Record Labels Invest, INT’L FED’N OF THE PHONOGRAPHIC INDUSTRY,

http://www.ifpi.org/how-record-labels-invest.php [https://perma.cc/J6E3-7WDU] (last

visited Apr. 24, 2018) (“Recording costs for an emerging pop act in a major market are

estimated to be between US $150,000 and US $500,000.”).

74

See MCLEOD & DICOLA, supra note 1, at 206–10 (proposing that if hip-hop artists of

the late 1980s and early 1990s received licenses for all their samples, Public Enemy

would have lost about $6.7 million for Fear of a Black Planet and the Beastie Boys

would have lost $19.8 million for releasing Paul’s Boutique).

75

Curtis Mayfield, a 1970s-funk artist from Chicago whom Kanye West frequently

samples, used income from licensing samples to help finance his medical bills after he

was no longer able to perform following a stage accident in 1990 that left him paralyzed.

See M

CLEOD & DICOLA, supra note 1, at 86.

76

See id. at 118 (quoting music critic Jeff Chang) (“You’ve got this huge gap now

that’s been created. Now the only people that can make hip-hop throwback records—

where the canon of breakbeats is being used—are the folks that are so rich that they can

afford to do anything they want anyway.”).

77

See, e.g., Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 798 (6th Cir.

2005) (eliminating the de minimis standard for sampling sound recordings).

2018] CARE FOR A SAMPLE? 195

resolution because record labels often settle with artists to avoid

unfavorable decisions that could affect their sound recording

copyrights or other aspects of the music business.

78

Courts have

debated the merits of two legal defenses in unlicensed sampling:

the de minimis doctrine when evaluating infringement and the fair

use doctrine when defending infringement.

79

1. The De Minimis Doctrine and Sound Recordings

The de minimis doctrine in copyright law imposes a certain

threshold of copying to constitute infringement.

80

De minimis

claims are still asserted in the music business because artists will

feel, however, that someone inappropriately swindled a few of

their notes or lyrics.

81

In sampling, the de minimis standard is

theoretically a bar that determines whether a certain size or

substantiality of a sample is so trivial that it could not be the basis

for legal action.

82

Defendants and courts have applied or invoked

78

See BARGFREDE, supra note 44, at 56.

79

See VMG Salsoul, LLC v. Ciccone, 824 F.3d 871, 885 (9th Cir. 2016); Estate of

Smith v. Cash Money Records, 253 F. Supp. 3d 737, 750–51 (S.D.N.Y. 2017).

80

See Walt Disney Prod. v. Air Pirates, 581 F.2d 751, 758–59 (9th Cir. 1978) (finding

“the idea-expression line” separating infringement from non-infringement “represents an

acceptable definitional balance as between copyright and free speech interests”); see, e.g.,

Sandoval v. New Line Cinema Corp., 147 F.3d 215, 218 (2d Cir. 1998) (finding the use

of copyright-protected photos in a feature film was de minimis and did not constitute

infringement because the photos were barely identifiable and were shown only briefly);

Ringgold v. Black Entm’t Television, Inc., 126 F.3d 70 (2d Cir. 1997) (finding the use of

a copyright-protected poster for a total of 26.75 seconds in a film surpassed the de

minimis threshold).

81

See, e.g., Newton v. Diamond, 349 F.3d 591, 598 (9th Cir. 2003) (finding a generic

three note sequence “failed to demonstrate any quantitative or qualitative significance” to

surpass the de minimis threshold); Elsmere Music, Inc. v. Nat’l Broad. Co., 482 F. Supp.

741, 744 (S.D.N.Y.), aff’d 623 F.2d 252 (2d Cir. 1980) (finding copying was not de

minimis where the copied musical phrase was “the heart of the [original] composition”);

see also 4 M

ELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT §

13.03[A][2] at 13–47 (describing fragmented literal similarity in the context of music

sampling).

82

See VMG Salsoul, 824 F.3d at 881. In the context of fair use, a determination of de

minimis use would also prove helpful for courts to conclude whether a work is

substantially similar in relation to the entire copyrighted work. See Deborah F. Buckman,

Annotation, Application of “De Minimis Non Curat Lex” to Copyright Infringement

Claims, 150 A.L.R. Fed. 661 (1998).

196 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXIX:181

the doctrine in several sampling suits, but the de minimis

standard’s place in sampling remains an enigma.

83

Courts are divided as to how the de minimis doctrine applies to

sampling. In Newton v. Diamond the Ninth Circuit found that a

musical composition sample of a few notes was de minimis,

apparently in agreement with popular belief in the music

industry.

84

The Sixth Circuit in Bridgeport v. Dimension Films,

however, determined in 2005 that the de minimis standard does not

apply for sound recording sampling and mandated that artists

“[g]et a license or do not sample.”

85

The bright-line rule destroyed

the de minimis defense, primarily for the reason that it was arduous

for courts to determine how much of a general sample is

substantial enough to surpass the de minimis threshold.

86

The Ninth Circuit in VMG v. Salsoul, more than a decade later,

reaffirmed the availability of the de minimis doctrine when it ruled

that a .23 second horn-synth sample on Madonna’s “Vogue,”

which was sampled from “Ooh I Love it (Love Break),” was too

small to warrant infringement.

87

While the de minimis defense could help independent artists

who wish to sample small portions of prior work, it may not be a

feasible tool in remedying the sample licensing because, as the

circuit split shows, courts are reluctant to provide a delineated

definition of a de minimis sound recording sample.

88

2. The Fair Use Doctrine and Musical Compositions

Sampling, as a fair use, is a double-edge sword, as artists will

favor expanding fair use when sampling, but may advocate for

83

Compare Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005)

(finding the de minimis standard does not apply to sound recordings) with VMG Salsoul,

824 F.3d 871 (finding the de minimis standard applied to a .23-second sound recording

sample).

84

See Newton, 349 F.3d at 598; see infra Section III.A.

85

See Bridgeport, 410 F.3d at 801.

86

See id. at 802.

87

See VMG Salsoul, 824 F.3d at 885.

88

See infra Section V.A for a discussion on the de minimis doctrine’s effect on the

licensing market.

2018] CARE FOR A SAMPLE? 197

weakening the doctrine when being sampled.

89

The doctrine of fair

use operates under the premise that art, at times, must borrow from

copyright-protected works, and permits certain circumstances of

unlicensed use to encourage freedom of expression.

90

The

Copyright Act dictates that the unlicensed use of copyright-

protected works for news reporting, scholarship, criticism, or

research may be acceptable under the doctrine.

91

To determine

whether a work falls under fair use, courts evaluate the unlicensed

work through four factors: (1) the purpose and character of the use;

(2) the nature of the copyrighted work; (3) the amount and

substantiality of the portion used in relation to the work as a while;

and (4) the effect of the use upon the potential market of the

work.

92

No single factor is determinative; therefore, a court weighs

all factors to collectively evaluate the unlicensed use of the

copyrighted work.

93

The Supreme Court does, nonetheless,

consider certain factors more important than others, and has held

that the fourth factor of market impact is “the single most

important element of fair use.”

94

When evaluating the fourth factor, courts consider two types of

harm to the potential market.

95

Courts first consider whether the

use is a direct market substitute for the original work, and then

89

See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 599 (1994) (Kennedy, J.

concurring) (“Just the thought of a rap version of Beethoven’s Fifth Symphony or ‘Achy

Breaky Heart’ is bound to make people smile. If we allow any weak transformation to

qualify as parody, however, we weaken the protection of copyright. And underprotection

of copyright disserves the goals of copyright just as much as overprotection, by reducing

the financial incentive to create.”).

90

See id. at 575 (“In truth, in literature, in science and in art, there are, and can be,

few, if any, things, which in an abstract sense, are strictly new and original throughout.

Every book in literature, science and art, borrows, and must necessarily borrow, and use

much which was well known and used before.”). The fair use doctrine was originally

developed through common law until it was codified in the Copyright Act of 1976. See

id. at 576.

91

17 U.S.C. § 107 (2012).

92

Id.

93

See Campbell, 510 U.S. at 578; see, e.g., Bill Graham Archives, LLC v. Dorling

Kindersley Ltd., 386 F. Supp. 2d 324, 333 (S.D.N.Y. 2005) (finding the first, third, and

fourth fair use factors weighed in favor of a biography’s non-infringing use of copyright-

protected Grateful Dead posters).

94

See Harper & Row, Publishers, Inc., v. Nation Enters., 471 U.S. 539, 566 (1985);

Fox News Network, LLC v. TVEyes, Inc. 883 F.3d 169, 176 (2d Cir. 2018).

95

See Campbell, 510 U.S. at 590 (quoting Harper & Row, 471 U.S. at 569).

198 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXIX:181

consider whether any market harm may exist beyond the direct

substitution, such as the existence of a licensing market.

96

A direct

market substitute exists when the alleged infringer “cites the most

important parts of the work, with a view . . . to supersede the use of

the original work, and substitute [the secondary use] for [the

original use].”

97

Courts developed this standard to prevent

secondary copies from usurping the economic success of original

creativity.

98

Sampling artists who seek a fair use defense often fail under a

hybrid analysis of the first and fourth factors because if the nature

of the sample is a “mere duplication” of a sound recording, the

sample can be considered a “market replacement.”

99

When

evaluating the purpose and character of the use, the Supreme

Court’s analysis in Campbell v. Acuff-Rose highlights the

importance of “transformation,” to which the new material

“alter[s] the original with new expression, meaning, or

message.”

100

The Court insisted that if the new work is more

transformative in expression, then the other factors, like

commercialism, may carry less weight.

101

Although the Court in

Campbell evaluated a transformative expression in a music parody,

its application has been applied to non-parodic samples in

music.

102

Additionally, because courts have ordered that any unlicensed

use of sound recording is unlawful and record labels are reluctant

to pursue cases where the defense of fair use can be raised,

sampling artists have not had the opportunity to test a fair use

defense for the unlicensed use of a sound recording.

103

Nevertheless, the fair use defense has seen mixed success for

96

See id. at 591 (“[W]hen, on the contrary, the second use is transformative, market

substitution is at least less certain, and market harm may not be so readily inferred.”).

97

See Folsom v. Marsh, 9 F. Cas. 342, 345 (C.C.D. Mass. 1841); see also Michael G.

Anderson, Paul F. Brown & Andrew P. Cores, Market Substitution and Copyrights:

Predicting Fair Use Case Law, 10 U.

MIAMI ENT. & SPORTS L. REV. 33, 39 (1993).

98

See Anderson et al., supra note 97.

99

See Campbell, 510 U.S. at 591.

100

See id. at 579.

101

See id.

102

See id. at 588; Estate of Smith v. Cash Money Records, 253 F. Supp. 3d 737, 743

(S.D.N.Y. 2017).

103

See Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 798 (6th Cir. 2005).

2018] CARE FOR A SAMPLE? 199

unlicensed musical compositions, which generally do not fall

under record label ownership.

104

Since music samples often distort the sound of the original

work and give the original work new meaning, the considerations

of transformative expression and market harm under fair use have

evolved to give artists wishing to sample a possible defense for

unlicensed use of a musical work.

105

However, because of the case-

by-case analysis that is inherent in the fair use framework, relying

on fair use will likely involve heavy litigation costs.

106

An artist

who wishes to sample must decide if asserting fair use is

financially feasible at the conception of the sampling process.

107

II. OBSTACLES WITHIN THE LICENSING MARKET

In the modern sampling licensing market, flaws exist that

obstruct and deter independent artists from utilizing the market to

expand their bounds of creativity. Section II.A discusses the

transaction costs and expensive efforts that bar independent artists

from exploring music samples within their own work, while

Section II.B discusses the industry’s attempt to mitigate the high

transaction costs.

A. Struggling to Start the Sampling Process

Artists are legally barred from using a sound recording in a

sample without license to do so;

108

however, the process of

obtaining sample licenses is levied with burdensome obstacles that

104

See Campbell, 510 U.S. at 579 (rev’g Sony Corp. of Am. v. Universal City Studios,

Inc., 464 U.S. 417 (1984)) (finding a song’s commercial nature is not dispositive when

evaluating its fair use); see also Estate of Barré v. Carter, 272 F. Supp. 3d 906, 932 (E.D.

La. 2017) (finding an unlicensed sample of a YouTube clip does not amount to fair use);

Cash Money Records, 253 F. Supp. 3d at 751 (finding an unlicensed use of a spoken

word record did amount to fair use).

105

See Cash Money Records, 253 F. Supp. 3d at 751.

106

See MCLEOD & DICOLA, supra note 1, at 131.

107

See id. (“Legal abstractions can only provide so much guidance to the music

industry. Musicians need to know how close they can come to previous songs and how

much of those previous songs they can use.”).

108

See Bridgeport, 410 F.3d at 798.

200 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXIX:181

prevent independent artists from commencing the process.

109

Independent artists like Chance the Rapper, Macklemore, and Bon

Iver have become Grammy-award winning influencers without

affiliating themselves with a major record label.

110

Success through

independence inspired other artists like Lupe Fiasco and Frank

Ocean, who both dealt with numerous record label frustrations, to

find creative ways to escape their major label contracts and to

release their music independently.

111

While the distance between

an artist and major record label can increase creative control of

one’s music, it also significantly lowers the available budget and

labor force for a project.

112

An independent label cannot afford to

cover the transaction costs of a sample clearance, let alone the

license itself.

113

To clear any sample, the artist must often first record the entire

song with the sample because the way a sample is used can be a

pivotal factor for the copyright owner when deciding to authorize

109

See MCLEOD & DICOLA, supra note 1, at 168 (“Smaller labels or musicians would

have a hard time bearing the search costs of tracing the ownership of copyrights….”).

110

See Nguyen, supra note 18; Reggie Ugwu, How 20-Year Old Chance The Rapper

Has Nearly Every Major Label Chasing Him, B

ILLBOARD (May 01, 2013, 1:40

PM), https://www.billboard.com/biz/articles/news/indies/1560132/how-20-year-old-

chance-the-rapper-has-nearly-every-major-label [https://perma.cc/C38W-DMMM]; Jon

Caramanica, Who, What and Where is Bon Iver?, N.Y.

TIMES (June 3, 2011),

https://www.nytimes.com/2011/06/05/magazine/who-what-and-where-is-bon-iver.html

[https://perma.cc/UG3A-WPV].

111

Frank Ocean famously dropped Endless to fulfill the last album of his contract with

Def Jam, before independently releasing the chart-topping Blonde a day later. See Natalie

Robehmed, Frank Ocean Already Made $1 Million by Going Independent, FORBES (Aug.

30, 2016, 12:24 PM), https://www.forbes.com/sites/natalierobehmed/2016/08/30/frank-

ocean-already-made-1-million-by-going-independent/#1e7f0cd7308f

[https://perma.cc/3E9N-ZYF5]. To fulfill the six-album obligation of his original

contract, Lupe Fiasco dropped an album of “old-ass songs [he] had kinda just laying

around.” See Trevor Smith, Lupe Fiasco Says He Intentionally Took an L with DROGAS

Light, H

OTNEWHIPHOP (May 1, 2017, 2:16 AM), https://www.hotnewhiphop.com/lupe-

fiasco-says-he-intentionally-took-an-l-with-drogas-light-to-punish-atlantic-

news.32094.html [https://perma.cc/RZ79-YRS6].

112

See MCLEOD & DICOLA, supra note 1, at 118; see also Worldwide Independent

Market Report: the Global Economic & Cultural Contribution of Independent Music,

supra note 16, at 25.

113

See MCLEOD & DICOLA, supra note 1, at 118 (explaining how El-P attempted to

negotiate a sample but was unable to fully acquire the license due to the high price

demand).

2018] CARE FOR A SAMPLE? 201

its use.

114

The sampling artist must sacrifice studio, production,

and mixing costs prior to gaining clearance.

115

Next, the artist who

wishes to sample has the difficult task of locating each of the

copyright holders for the composition and recording.

116

Once the

artist locates copyright holders, it can take months to negotiate a

deal for a license, which usually comes at a hefty fee even for non-

famous works.

117

To speed up the clearance process, artists can

hire a third party sample clearance firm that is able locate

copyrights and negotiate on their behalves because of the

relationships it has within the industry, but that service does not

come free.

118

Oftentimes artists refuse to grant licenses because of

distaste for a certain music genre, like how Steve Miller refuses to

license samples for hip-hop music.

119

Also, artists often condition

the license on certain demands they may have, like how an

Australian musician ordered Jay-Z to not use profanity on a

record.

120

If a license is not granted, all the costs from producing

the song, locating the copyright, and negotiating deals are sunken,

and the artist who wished to sample is forced to head back to the

drawing board in the studio.

121

Oftentimes, the inability to obtain licenses forces independent

artists to significantly delay the distribution of their projects or to

release incomplete projects.

122

Delays and incomplete albums not

114

See id. at 119.

115

See id. at 214; Jimmy Ness, The Queen of Sample Clearance: An Interview with

Deborah Mannis-Gardner, FORBES (Feb. 19, 2016, 8:00 AM), https://www.forbes.com/

sites/passionoftheweiss/2016/02/19/the-queen-of-sample-clearance-an-interview-with-

deborah-mannis-gardner/#724dd61064e1 [https://perma.cc/4DDN-DWTX] (detailing that

Eminem and Kendrick Lamar were the only clients able to negotiate a sample licensing

without sending over the full recorded track).

116

There may be many different owners of a copyright or the holder of the copyright

might be an obscure musician who is difficult to locate. See MCLEOD & DICOLA, supra

note 1, at 119 (Jay-Z and his producer had a difficult time in locating an Australian

musician for a sample of the “Streets is Watching”); see also infra Part IV.A.

117

See MCLEOD & DICOLA, supra note 1, at 119.

118

Sampling agencies cost at a minimum $500 per negotiation, and difficult

negotiations can cost thousands of dollars. See id. at 165.

119

See id. at 119.

120

See id. 119–20.

121

See id.

122

See id. at 171 (quoting music lawyer Whitney Broussard) (explaining that if an artist

misses a release date, it can affect the financial reporting for the label and skew the

overall earnings for a record).

202 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXIX:181

only damage the market value of projects, but hinder the

consumers’ experience.

123

Listeners are not able to experience a

project that the artist truly wished to distribute and are left to

imagine what the project could have been if completed or released

at a more relevant date.

124

Grammy-award winning rapper Wasalu Jaco, professionally

known as Lupe Fiasco, had his first fully independent release

delayed for more than a year and a half because of sampling

issues.

125

Jaco, who dealt with numerous record label frustrations

during his tenure with Atlantic Records, was unable to clear

samples in four songs of his seventh studio album, a conceptual

project titled “DROGAS: Wave.”

126

Jaco stated that the copyright

holders demanded terms for the album that were “overboard,”

while the upfront costs and song ownership shares were

“unacceptable” for the project’s razor thin budget.

127

He was

forced to rework sonic elements of the tracks and determine if the

sound still worked with the overall auditory elements of the album,

a process that required additional studio time.

128

Furthermore, the

delay cost Jaco the ability to directly build off the digital success of

his 2017 hit single, “Jump.”

129

123

See id. at 172 (quoting Eothen Alapatt) (“‘[I]f you’re an independent, you don’t

have the luxury of pushing [the release date] back to November because you can’t afford

the retail programs necessary to market the record between October and December.’”).

124

See id. at 212 (quoting Bill Stafford) (“‘I think that there should be some way of

streamlining it. It shouldn’t take eight months to clear something. I think that there needs

to be something better.’”).

125

See Eric Diep, Lupe Fiasco Talks Guest-Starring on ‘ELEAGUE The Challenger:

Street Fighter V,’ Nicki Minaj’s ‘Chun-Li’ & His Upcoming Music, BILLBOARD (Apr. 18,

2018), https://www.billboard.com/articles/columns/hip-hop/8347165/lupe-fiasco-

interview-eleague-the-challenger-street-fighter [https://perma.cc/ZS4Q-UA2P]; Lupe

Fiasco, (u/YoBossWillHearOfThis), R

EDDIT (Dec. 29, 2017, 2:25 PM), https://

www.reddit.com/r/LupeFiasco/comments/7mweqv/the_wavelength/?sort=new

[https://perma.cc/ZU7Y-KW93].

126

See Lupe Fiasco, supra note 125.

127

See id.

128

See id.

129

See Lupe Fiasco Chart History, BILLBOARD (last visited Sept. 16, 2018),

https://www.billboard.com/music/lupe-fiasco/chart-history/r-and-b-hip-hop-digital-song-

sales [https://perma.cc/YV5H-C9TR] (listing that in early 2017 “Jump” peaked at No. 42

on Billboard’s Top Digital Sales Chart, which was n Jaco’s first entry on the chart since

2014). DROGAS: Wave was initially slated to be released in Spring 2017. See Smith,

supra note 111.

2018] CARE FOR A SAMPLE? 203

The famously independent Chancelor Bennett (professionally

known as “Chance the Rapper” or simply “Chance”), was forced to

release his third project, Coloring Book, incomplete.

130

Chance, a

Grammy-award winning hip-hop artist who feuded with record

labels, revealed that the project was to include the song “Grown

Ass Kid” as the eleventh track between “All Night” and “How

Great,” but Chance was unable to obtain a license.

131

After “Grown

Ass Kid” was leaked, fans could hear that the song contained

looped elements of Roberta Flack and Peabo Bryson’s 1980 classic

soul tune “If Only for One Night.”

132

Flack and Bryson’s label

Atlantic Records, which was among the various record labels

Chance teased during a live concert, most likely owns the master

of the song.

133

If a record label feels that an artist who wishes to

sample previously wronged them, the label sometimes pushes back

in negotiations and demands a penalty fee prior to granting

clearance.

134

Artists can avoid negotiating with record labels for a sound

recording license and still sample with only a license to the

musical work through the use of an interpolation.

135

Kanye West

famously interpolated a line from Lauryn Hill’s “Mystery of

130

Eddie Gonzalez, Chance The Rapper Is Still Mad He Couldn’t Get ‘Grown Ass Kid’

Onto ‘Coloring Book,’ UPROXX (Sept. 3, 2017), https://uproxx.com/music/chance-the-

rapper-grown-ass-kid-coloring-book-tweet/ [https://perma.cc/4MFZ-64X4].

131

Chance the Rapper, (u/ChanceRaps), REDDIT (May 14, 2016, 10:09 PM),

https://www.reddit.com/r/hiphopheads/comments/4je7ig/hey_this_is_chance_coloringbo

ok_is_out_ask_me/?sort=confidence [https://perma.cc/EPA2-DAAE].

132

Chance the Rapper’s “Grown Ass Kid” Sample of Roberta Flack and Peabo

Bryson’s “If Only for One Night,” WHOSAMPLED, https://www.whosampled.com/sample/

427893/Chance-the-Rapper-Mick-Jenkins-Alex-Wiley-Grown-Ass-Kid-Roberta-Flack-

Peabo-Bryson-If-Only-for-One-Night/ [https://perma.cc/6HNC-9EL2] (last visited Feb.

8, 2018).

133

See id.

134

Rick Goetz, All About Music Clearance, MUSICCONSULTANT (Nov. 22, 2011),

http://musicconsultant.com/music-placement/music-clearance/#.WuKhc9PwaRs

[https://perma.cc/8QVY-GLKC] (describing, in an interview with sample clearance

expert Deborah Mannis-Gardner, a time where an artist who wishes to sample had to

back clear samples released on a free mixtape prior to clearing samples on a new project).

135

An interpolation is essentially a replay, where an artist duplicates a track or melody

by re-recording it in the studio. By utilizing a replay, an artist who wishes to sample

eliminates the need for a sound recording license, but still needs to obtain the license for

using the musical composition. See D

ONALD S. PASSMAN, ALL YOU NEED TO KNOW

ABOUT THE MUSIC BUSINESS 319 (9th ed. 2015).

204 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXIX:181

Iniquity” in his 2004 hit “All Falls Down.”

136

While Kanye

received a composition license from Hill, he was unable to secure

licenses from MTV (which broadcasted the live performance) and

Sony Music (which owned the sound recording).

137

West then

enlisted the voice of R&B singer Syleena Johnson to re-record

Hill’s lyrics to use as the hook of his song.

138

The interpolation,

which portrayed the vulnerabilities of American consumerism

through West’s and Hill’s juxtaposed lyrics, was a creative and

commercial success.

139

In many cases, however, due to the nature

of the sample in use, an artist who does not successfully negotiate

a license for the master would have to remove the sample from his

or her track because either the re-played elements did not fit into

the new composition or the original sound was not effectively

reproduced.

140

B. Market Attempts at Affordability

A potential market solution to licensing complexity was born

out of Creative Commons, a non-profit organization that provides

creators with free legal tools that educate them about what can be

done with a particular work.

141

Creative Commons attempted to

streamline the sampling licensing system in 2005 with its own

licensing mechanisms.

142

The organization initially offered three

different types of licenses for samples, but due to the licenses’

limiting framework and subsequent lack of demand, Creative

Commons retired their tiered sampling system after only two

136

See MCLEOD & DICOLA, supra note 1, at 171.

137

See id.

138

See id.

139

See id.

140

See id. at 118 (citing record producer El-P’s disgust in failing to obtain a license for

a simple bassline).

141

See CREATIVE COMMONS, https://web.archive.org/web/20050211030544/http://

creativecommons.org:80/ [https://perma.cc/D6C4-NUA2] (last visited Aug. 28, 2018). In

2005, Creative Commons advertised its novel database by promoting “Fine Art of

Sampling” contests, where users would sample tracks licensed in the Creative Commons

registry to creative transformative pieces of work “without legal hassle.” See

CREATIVE

COMMONS CONTESTS, https://web.archive.org/web/20050209040436/http://

ccmixter.org:80/contests/wired/ [https://perma.cc/2YJ9-2JQL] (last visited Aug. 28,

2018).

142

See MCLEOD & DICOLA, supra note 1, at 244.

2018] CARE FOR A SAMPLE? 205

years.

143

Today, artists can still register their music through a

general Creative Commons license (“CC-License”), which offers a

searchable database that lets artists freely reuse works for remixes,

samples, or mashups, and, in exchange, those artists relinquish a

certain amount of control to their works.

144

Although Creative Commons can correct some inefficiencies

of the sampling market by acting as a transaction-facilitating

registry, the CC-License, in any state, does not appeal to the

greater music industry because it is perceived to greatly weaken an

author’s copyright to his or her song.

145

Therefore, there is no

financial incentive for artists to register their work within the

Creative Commons registry.

146

While CC-Licenses can dictate how an original work could be

used in a sample, Creative Commons is not an entity that enforces

the terms and conditions of each CC-License and oftentimes CC-

Licensed works are used inappropriately.

147

The largest concern

with a CC-License is that the terms are irrevocable; therefore, if an

artist’s song suddenly becomes a hit, that artist cannot change his

or her mind and obtain the deserved royalties after licensing

through Creative Commons.

148

These limitations render CC-

licenses unviable for artists who seek compensation for their

143

See id. at 245 (detailing three separate types of licenses for sampling: (1) the

“Sampling” License which allows all use except for advertising, copying, and

distribution, (2) the “Sampling Plus” License which is like the Sampling License but

allows for noncommercial copying and distribution, and (3) the “Noncommercial

Sampling Plus” License that only allows for noncommercial transformation of the work).

144

See Print Symposium: Contract Options for Individual Artists: Association

Litteraire Et Artistique Internationale (Alai): Memorandum on Creative Commons

Licenses, 29 C

OLUM. J.L. & ARTS 261 (2006); MCLEOD & DICOLA, supra note 1, at 245.

145

See Print Symposium: Contract Options for Individual Artists: Association

Litteraire Et Artistique Internationale (Alai): Memorandum on Creative Commons

Licenses, supra note 144.

146

See id.; MCLEOD & DICOLA, supra note 1, at 246–47.

147

See Print Symposium: Contract Options for Individual Artists: Association

Litteraire Et Artistique Internationale (Alai): Memorandum on Creative Commons

Licenses, supra note 144 (“Creative Commons does not provide any means to vindicate

the author’s rights if the user of a work placed under a Creative Commons license

violates any of the rights retained by the author, such as the right of name attribution

and/or of commercial exploitation.”).

148

See id. (“This means that there is no going back: once Creative Commons licensed

copies are made available, they will generate more licensed copies, and it will be too late

to call them back.”).

206 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXIX:181

music, thus Creative Commons’ catalog of CC-License-eligible

songs is not substantial enough to generate an interchangeable

licensing system.

149

On the other hand, many aspects of Creative Commons’

initiative may prove to complement a feasible solution to the

sample licensing system.

150

A central location of music that

welcomes sampling would simplify the costly process of locating

and negotiating licenses.

151

Detailed predetermined agreements

would aid independent artists in considering samples that are

financially feasible for them without having to invest in recording

and mixing the sample first.

152

Creative Commons is an example

of how developing technology can, in part, provide a marketplace

solution to a tangled licensing system while courts attempt to

balance freedom of expression with copyright protection.

153

III. UNCERTAIN & UNPREDICTABLE JUDICIAL DECISIONS

Because the issues that fall before the judiciary frequently

involve either the dispute of a sound recording infringement or a

composition infringement, courts evaluate the infringement of each

copyrightable element separately.

154

Therefore, it is best to analyze

how courts determine fair use and de minimis within each

copyrightable element of a song and consider how these defenses

receive different treatment across circuits. Section III.A discusses

how courts have examined the sound recording copyright in

149

See MCLEOD & DICOLA, supra note 1, at 246 (quoting Peter Jaszi) (“‘I don’t think

any of the existing CC licenses would work very well because they don’t involve money,

and if what artists want is to get money, and if what other artists want to do is pay fair

money, then it would have to be some different kind of license and not one of the off-the-

shelf Creative Commons licenses.’”).

150

See MCLEOD & DICOLA, supra note 1, at 247.

151

See id.

152

See id.

153

See id. at 244 (quoting Mia Garlick, former general counsel for Creative Commons)

(“‘Creative Commons has arisen as a solution to a problem that arose because of digital

technology.’”).

154

Compare Newton v. Diamond, 349 F.3d 591, 598 (9th Cir. 2003) (finding de

minimis standard applies to a three-note musical composition sample) with Bridgeport

Music, Inc. v. Dimension Films, 410 F.3d 792, 798 (6th Cir. 2005) (finding de minimis

does not apply for any sound recording sample).

2018] CARE FOR A SAMPLE? 207

sampled works, while Section III.B details the courts treatment of

musical compositions.

A. The Judiciary and Sound Recording Samples

1. Diverging Decisions of the De Minimis Doctrine

A persistent myth within the music industry is that any sample

of only a few notes is not substantial enough to amount to

copyright infringement, and that myth holds true in some cases of

musical composition samples.

155

In 2005, however, the Sixth

Circuit announced that the analysis for determining infringement

of a musical composition copyright is not appropriate when

determining infringement of a sound recording copyright.

156

The

decision dictated a new pace of play in hip-hop’s sampling culture:

you shall not sample without a license, no matter how small.

157

The new pace of play remained unchallenged until 2017, when the

Ninth Circuit found a sound recording sample to be de minimis.

158

Not only does the current circuit split highlight the difficult task of

defining a de minimis sample, its potential resolution could

influence the bounds of creativity in independent music.

In Bridgeport Music, Inc. v. Dimension Films, plaintiff

Westbound Records held the copyright to the sound recording of

the George Clinton-written funk song “Get Off Your Ass and Jam”

(“Get Off”).

159

Andre Young, famously known as Dr. Dre, used

many George Clinton samples to pioneer the “G-Funk” sound of

West Coast hip-hop in the late 1980s and early 1990s.

160

Young

used approximately two seconds of a guitar riff from “Get Off,”

lowered the pitch, and looped it for N.W.A.’s “100 Miles and

155

See Newton, 349 F.3d at 598.

156

See Bridgeport, 410 F.3d at 798.

157

See id. at 802; see also DEMERS, supra note 57, at 96 (“Unless other judges radically

critique the Bridgeport v. Dimension decision, this verdict will probably force sampling

to remain a pay-per-use technique in commercially released music.”).

158

See VMG Salsoul v. Ciccone, 824 F.3d 871, 874 (9th Cir. 2017) (“We recognize

that the Sixth Circuit held to the contrary in Bridgeport Music, Inc. v. Dimension Films,

410 F.3d 792 (6th Cir. 2005), but—like the leading copyright treatise and several district

courts—we find Bridgeport’s reasoning unpersuasive.”).

159

See Bridgeport, 410 F.3d at 796.

160

See DEMERS, supra note 57, at 82.

208 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXIX:181

Runnin’” (“100 Miles”).

161

Defendant No Limit Films then used

“100 Miles” in the film I Got the Hook Up.

162

The parties did not dispute that the riff was copied directly

from “Get Off,” but the district court ruled that the small size of

the copying did not “rise to the level of a legally cognizable

appropriation” to warrant infringement.

163

On appeal, however, the

Sixth Circuit believed that a substantial similarity analysis, which

is generally used in evaluating alleged copyright infringement,

164

should not be “undertaken at all when the defendant has not

disputed that it digitally sampled a copyrighted sound

recording.”

165

The court justified eliminating the de minimis

threshold in sound recordings by defining sound recording samples

as a “physical taking rather than an intellectual one.”

166

The Sixth

Circuit also asserted that producers intentionally sampled sound

recordings to “save costs” or “add something to the new

recording.”

167

The justifications revealed a lack of understanding

of the sampling market and sampling culture.

168

Utilizing a

sample’s sonic elements is not a cost-saving technique to add

something to a record, but rather an integral part of the musical

experience of the new composition.

169

161

See Bridgeport, 410 F.3d at 796.

162

See id.

163

See id. at 797.

164

The substantial similarity requirement for infringement, which is usually an issue of

fact, evaluates whether the accused work is substantially similar “in ideas and

expression” to the copyrighted work. See Frybarger v. Int’l Bus. Machs., 812 F.2d 525,

529 (9th Cir. 1987). Courts have used a multitude of tests to determine whether a work of

art is substantially similar to an original piece. See Benay v. Warner Bros. Ent., 607 F.3d

620, 624 (9th Cir. 2012).

165

See Bridgeport, 410 F. 3d at 798.

166

See id. at 802. The distinction would affect how the music industry approached the

fair use defense for sound recording samples. See infra Part III.B for a discussion of fair

use.

167

See Bridgeport, 410 F.3d at 802.

168

See DEMERS, supra note 57, at 96 (“This verdict mistakenly assumes that the

compulsory license for song covers exerts any influence on licensing fees for master

recordings.”).

169

MCLEOD & DICOLA, supra note 1, at 45 (noting independent artist Matt Black

believes that sampling “operates as a metaphor for the way people participate with

culture more broadly.”).

2018] CARE FOR A SAMPLE? 209

While the Bridgeport court came to its conclusion on multiple

inferences,

170

the court relied overwhelmingly on policy

implications for jettisoning the de minimis threshold.

171

The court

concluded that eliminating the substantial similarity analysis for

music samples would lend itself to easy enforcement

172

and make

things cheaper for the music industry.

173

The court also proclaimed

that considering any unlicensed sample as an infringement would

not stifle creativity because the “market will control the license

price and keep it within bounds.”

174

Despite the Sixth Circuit’s

proclamations, commenters immediately deplored the decision for

stifling creativity and contravening the purpose of copyright

law.

175

Bridgeport, as the court intended, effectively deterred artists

from choosing to sample without clearances; however, since the

licensing market has made it nearly impossible to obtain these

clearances, certain artists simply cannot sample.

176

While Kanye

West was able to bear the expense of clearing six Michael Jackson

notes, new and independent artists lost the de minimis doctrine to

defend a small sampled recording.

177

These artists were forced to

compete in the market no matter what, as any sample that they

170

The court stated that Congress intended that the sound recording copyright be

extended to ensure the owner “has the exclusive right to ‘sample’ his own recording.”

The Sixth Circuit deduced that a 17 U.S.C. § 114(b) exception eliminated traditional

prerequisites of the infringement analysis because the word “entirely,” which was added

several years after the passing of the original statute that established a copyright in sound

recording, should be given heightened significance. Therefore, the Sixth Circuit

determined that if you cannot pirate the whole sound recording, you cannot ‘sample’

something less than the whole. See Bridgeport, 410 F.3d at 799–803; see also infra

Section III.B for a discussion of fair use.

171

See Bridgeport, 410 F.3d at 799 (“The music industry, as well as the courts, are best

served if something approximating a bright-line test can be established.”).

172

See id. at 801–02.

173

See id. at 802.

174

See id. at 801.

175

See John Schietinger, Note and Comment, Bridgeport Music, Inc v. Dimension

Films: How the Sixth Circuit Missed a Beat on Digital Music Sampling, 55 DEPAUL L.

REV. 209, 210 (2005); Matthew R. Brodin, Bridgeport Music, Inc. v. Dimensions Films:

The Death of the Substantial Similarity Test in Digital Sampling Copyright Infringement

Claims – The Sixth Circuit’s Flawed Attempt at a Bright–Line Rule, 6 M

INN. J.L. SCI. &

TECH. 821, 823 (2005).

176

See DEMERS, supra note 57, at 96; see also supra Section II.A.

177

See supra Section I.B.

210 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXIX:181

encounter would be automatically subjected to infringement

laws.

178

Eleven years later, the Ninth Circuit determined that the

analysis for sound recording infringement should not differ from

the framework in evaluating musical composition infringement.

179

In VMG Salsoul v. Ciccone, the Ninth Circuit reinstated the de

minimis exception because “the ‘de minimis’ exception applies to

infringement actions concerning copyrighted sound recordings just

as it applies to all other copyright infringement actions.”

180

VMG Salsoul, the owner of the sound recording copyright for

The Salsoul Orchestra’s “Ooh I Love it (Love Break)” (“Love

Break”), sued Madonna for sampling 0.23 seconds of a disco horn

synth in her 1990 pop hit “Vogue.”

181

Shep Pettibone, the producer

of Madonna’s hit, admittedly took a quarter-note trumpet sound

from Love Break, gave the note a higher pitch, truncated the tail

end of the note, and overlaid it with other effects.

182

Pettibone also

aided in the recording of Love Break, which was released in 1983,

and the disco synth was a staple of his sound during a production

career in the 80s and early 90s.

183

The horn synth repeated multiple

times throughout “Vogue,” but it was not a continuous loop like

when Young used elements of Clinton’s “Get Off.”

184

The Ninth Circuit ruled that the sampling of the sound

recording was de minimis because “a highly qualified and trained

musician listened to the recordings with the express aim of

discerning which parts of the song had been copied” and failed to

178

See Brief for the RIAA as Amicus Curiae at 6, Bridgeport Music, Inc. v. Dimension

Films, 410 F.3d 792 (6th Cir. 2005).

179

See VMG Salsoul v. Ciccone, 824 F.3d 871, 885 (9th Cir. 2017).

180

See id. at 874.

181

VMG Salsoul also owned the musical composition copyright to Love Break, but the

Ninth Circuit quickly struck down the composition infringement claim due to the de

minimis precedent in Newton. See id. at 875. This case also revealed to the court that

sampling can and has occurred outside of the hip-hop genre. See id.

182

See id. at 879.

183

See Keith Caulfield, ‘Vogue’ Producer Shep Pettibone’s First Interview in 20 Years:

On Making a Madonna Classic & Why He Left Music Behind, B

ILLBOARD (May 22,

2015), https://www.billboard.com/articles/columns/pop-shop/6575923/vogue-producer-

shep-pettibone-interview [https://perma.cc/9GPJ-B2L8].

184

See VMG Salsoul, 824 F.3d at 875; Bridgeport Music, Inc. v. Dimension Films, 410

F.3d 792, 796 (6th Cir. 2005).

2018] CARE FOR A SAMPLE? 211

do so accurately.

185

The court also heavily critiqued the Sixth

Circuit’s interpretation that a sound recording sample is immune to

a substantiality analysis because it is a “physical taking.”

186

The

Ninth Circuit also explicitly disagreed with the Sixth Circuit’s

“illogic” because the statute did not indicate that Congress

intended for sound recordings to be treated differently than other

forms of copyrightable art.

187

When evaluating the circuit split, the significantly different

samples in question for the Sixth and Ninth Circuits prompted

further conjecture for the creation of a useful definition of de

minimis.

188

It is not clear what effect, if any, the Ciccone decision

has had over the sample licensing market because it is still

unknown as to what specific criteria defines a de minimis

sample.

189

The lack of a clear definition for “de minimis” creates a fear of

litigation for artists who wish to utilize small samples.

190

The

perceived circuit split may just infer that a sound recording sample

of a single note is de minimis, but anything greater infringes on the

185

See VMG Salsoul, 824 F.3d at 880.

186

See id. at 885 (stating that a computer program can sample a piece of a photograph

and insert it into another piece of art and it would not carve out an exception to the de

minimis requirement).

187

The Ninth Circuit also described how a circuit split essentially already existed

because district courts around the country refused to embrace that sound recordings

should be treated differently. See id. at 884–86 (finding the Sixth Circuit ignored

statutory structure, declined to consider legislative history, and failed to acknowledge

contemporary technology).

188

See id. at 878; Bridgeport, 410 F.3d at 797.

189

If a de minimis threshold is a strand of three notes—the threshold for a musical

composition—the significance of these three notes must also be measured. The

significance of the music lays not only the amount of music being used, but the value of

actual sonic elements. The first two notes of Michael Jackson’s Thriller, which while are

only a couple notes, may be considered sonically unique and memorable and could not be

considered equal with a couple quarter-note horn synths from an underground disco beat.

See 4 M

ELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 13.03[A][2] at

13–47 (describing fragmented literal similarity in the context of music sampling).

190

See Christian Palmieri & Monica B. Richman, Music Sampling: Has the Tune

Changed?, ACC

DOCKET, Jan.-Feb. 2017, at 57. (“The US Supreme Court may one day

resolve the divergent rulings of the Ninth and Sixth Circuits. In the meantime, it is likely

that copyright holders bringing suit over sampling will select a venue within the Sixth

Circuit, while musicians seeking a declaratory judgment will file in the Ninth Circuit or

in a district court that had previously rejected Bridgeport.”).

212 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXIX:181

copyright of the original sound recording.

191

Record labels are risk-

averse businesses that are unwilling to release an unlicensed

sample and risk compensatory damages or, sometimes even worse,

injunctive relief.

192

Despite the ruling in VMG Salsoul, it is

common for current recording agreements to stipulate that an

album will not be released until the artist clears every sample, no

matter the size, on the project.

193

Due to the variety of fact patterns, sampling in music is a case-

by-case analysis and courts like Bridgeport want to rid the

substantially similar requirement in its entirety to deter unlicensed

sampling and avoid litigating such unique fact patterns.

194

In

effect, Bridgeport influenced a licensing market that has obstructed

many independent artists from exploring a level of common

creativity in their music.

195

2. A Dormant Fair Use Defense

The Bridgeport court’s declaration that one must “get a

license” to sample may have also indirectly terminated the fair use

defense for unlicensed samples of sound recordings.

196

Although

the court in Bridgeport never intended for the defense to be legally

barred,

197

fair use has become dormant in defending sound

191

See infra Section V.A.1 for a discussion of the de minimis standard’s effect on the

sample licensing market.

192

The Notorious B.I.G. and Sean “Puffy” Combs (also known as Puff Daddy, P.

Diddy, and Diddy) were forced to take Ready to Die off the shelves after a trial court

ruled they were liable for infringing on the recording and composition copyrights of the

Ohio Players’ “Singing in the Morning.” After a license for the two-second sample could

not be agreed upon, the album needed to be remastered and redistributed. See M

CLEOD &

DICOLA, supra note 1, at 31.

193

See generally LAPOLT & FOX, supra note 2.

194

See Palmieri & Richman, supra note 190, at 56.

195

See id. at 57 (“Bridgeport’s holding definitively ended the permissive sample

culture.”).

196

See Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 801–02 (6th Cir.

2005). While fair use was not a defense claimed in the matter, commenters were

concerned that its application was rendered useless after the removal of the substantially

similar analysis. See Brief for the RIAA as Amicus Curiae, at 10, Bridgeport Music,

Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005) (“[T]he panel’s bright-line rule

improperly reads “fair use”–a defense expressly provided in the text of the Copyright

Act—out of copyright law altogether for sound recordings.”).

197

See Bridgeport, 410 F.3d at 805 (“[T]he trial judge is free to consider [fair use] and

we express no opinion on its applicability to these facts.”).

2018] CARE FOR A SAMPLE? 213

recording copyright infringement.

198

While fair use has recently

become a potential tool for artists to defend a musical composition

sample, many commenters attribute two primary reasons to its

disappearance in sound recording matters: (1) the Bridgeport

bright-line rule dissuaded artists from attempting to use the defense

and (2) owners of sound recording copyrights, which are

predominantly record labels, push for settlements or post-release

licensing arrangements with artists who do not clear a sample to

avoid the possibility of a court granting a favorable fair use

argument for samplers.

199

Firstly, in emphasizing that a bright-line rule was “necessary”

for judicial efficiency, the Bridgeport ruling came into a noticeable

conflict with § 107 of the Copyright Act, which avails the

argument of fair use in all copyright infringement cases.

200

Nowhere in the statute does it prohibit the fair use defense in sound

recording cases and, further, the Supreme Court ruled that such a

defense requires a case-by-case analysis rather than a bright-line

rule.

201

In its amicus brief, the Recording Industry Association of

America (“RIAA”) warned that eliminating the substantially

analysis could destroy the statutorily defined fair use defense.

202

The RIAA stated that the Sixth Circuit made its decision “without

even considering whether the copying may be subject to potential

defenses, including fair use.”

203

If the Sixth Circuit understood that

the fair use defense doctrine would still be available, sampling

issues would continue to undergo nuanced, case-by-case analyses

and render the court’s bright-line test useless.

204

Because the

court’s own policy justifications contradicted each other, the RIAA

inferred that the Sixth Circuit either (1) “intended by its decision to

198

See Palmieri & Richman, supra note 190, at 57.

199

See Brief for the RIAA as Amicus Curiae, at 12, Bridgeport Music, Inc. v.

Dimension Films, 410 F.3d 792 (6th Cir. 2005); BARGFREDE, supra note 44, at 56 (noting

that Girl Talk’s work has yet to be challenged legally).

200

See 17 U.S.C. § 107 (2012).

201

See id.; Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 574–78 (1994).

202

See Brief for the RIAA as Amicus Curiae, at 10, Bridgeport Music, Inc. v.

Dimension Films, 410 F.3d 792 (6th Cir. 2005).

203

See id. at 6.

204

See id. at 11.

214 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXIX:181

abrogate the fair use defense for sound recording copyrights in

violation of the express terms of the Copyright Act” or (2) failed to

consider statutory defenses, making its rationale for the bright-line

test “fatally flawed.”

205

The Ninth Circuit’s decision could vitalize the fair use defense

for unlicensed sampling of sound recordings because it recognizes

that no bright-line rule exists.

206

In VMG Salsoul v. Ciccone, the

court evaluated the parameters of 17 U.S.C. § 114, which dictates

the scope of exclusive rights of sound recordings.

207

The copyright

to sound recordings is unique, as the holder does not possess the

right to publicly perform, but § 114(d) details how holders can

“digitally perform” the recording subject to limitations on the

medium used.

208

When ruling that the de minimis doctrine is

applicable toward sound recordings, the Ninth Circuit read the §

114(b) provision, which outlines the owner’s right to sound

recording duplication, through a less literal lens than the

Bridgeport court and incorporated a “background of consistent

application” of de minimis “across centuries of jurisprudence.”

209

In reviewing legislative history, the court differed from Bridgeport

and stated that Congress never intended for § 114 to expand the

copyright of sound recordings, but rather made clear that imitation

“cannot be infringement so long as no actual copying is done.”

210

The Ninth Circuit utilized the audience test to determine

substantial similarity, which often guides courts in determining the

amount and substantiality factor of fair use.

211

Secondly, fair use has not been expansively dissected for sound

recordings because many music executives fear that fair use could

205

See id.

206

See VMG Salsoul, LLC v. Ciccone, 824 F.3d 871, 883 (9th Cir. 2016).

207

See 17 U.S.C. § 114 (2012).

208

See 17 U.S.C. § 114(d) (2012).

209

See VMG Salsoul, 824 F.3d at 883.

210

See id. at 884.

211

See id. at 878; Ringgold v. Black Entm’t Television, Inc., 126 F.3d 70, 76 (2d Cir.

1997) (“If the allegedly infringing work makes such a quantitatively insubstantial use of

the copyrighted work as to fall below the threshold required for actionable copying, it

makes more sense to reject the claim on that basis and find no infringement, rather than

undertake an elaborate fair use analysis in order to uphold a defense.”); see also supra

note 93 and accompanying text for an overview of the four fair use factors.

2018] CARE FOR A SAMPLE? 215

change the game in a sampler’s favor.

212

Even if an artist is sued,

record labels and music publishers have been quick to strike a deal,

effectively preventing courts from ruling on the issue.

213

DJ Greg

Gillis, known professionally as Girl Talk, compiles sound

recordings from dozens of unlicensed samples and, consequently,

was dubbed a “lawsuit waiting to happen.”

214

Despite that title and

five LP releases since 2002, Girl Talk has yet to see a lawsuit.

215

Philo Farnsworth, who operates Girl Talk’s aptly named

independent label “Illegal Art,” believed that Girl Talk would not

be sued because if a case went in his favor, it could open the door

for a multitude of artists feeling more comfortable releasing tracks

with unlicensed samples.

216

The hesitancy to pursue lawsuits in sound recording samples

may be a result of the Second Circuit’s 2006 ruling in Blanch v.

Koons.

217

Much like Girl Talk uses recorded music to create a

“collage” song, Jeff Koons collected images from advertisements

and digitally superimposed the images against a background of

scenic landscapes.

218

In one specific painting titled “Niagara,”

Koons placed four images of women’s legs next to images of ice

cream and brownies on top of a background of Niagara Falls.

219

One of the pairs of legs was, without permission, adapted from

Andrea Blanch’s photography.

220

The court found that Koon’s

212

See BARGFREDE, supra note 44, at 56.

213

See Amanda G. Ciccatelli, The Impact of Drake’s Fair Use Copyright Victory on

Music Copyright Infringement, IPWATCHDOG (June 17, 2017), http://

www.ipwatchdog.com/2017/06/17/drakes-fair-use-copyright-victory-music-copyright-

infringement/id=84504/ [https://perma.cc/YNG9-UMPV] (quoting music attorney

Morgan Pietz) (“‘Defendants assert fair use all the time, in sampling cases especially. But

it seems like it is only once in a blue moon that a defendant sticks in the fight long

enough to actually succeed in getting rid of a case based on a fair use defense as

happened [in Smith v. Cash Money].’”); see also infra Part III Section B.1 for a

discussion of Drake’s fair use victory.

214

See MCLEOD & DICOLA, supra note 1, at 118; Palmieri & Richmond, supra note

190, at 57.

215

See MCLEOD & DICOLA, supra note 1, at 118.

216

See id. at 242.

217

See Blanch v. Koons, 467 F.3d 244, 247 (2d Cir. 2006) (finding that superimposing

a copyright-protected photograph onto other images is transformative enough to warrant

fair use); B

ARGFREDE, supra note 44, at 56.

218

See Blanch, 467 F.3d at 247; BARGFREDE, supra note 44, at 56.

219

See Blanch, 467 F.3d at 247.

220

See id. at 248.

216 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXIX:181

collage-inspired painting, which was displayed in the Guggenheim

Museum in New York, amounted to fair use primarily because the

sharply different objectives that Koons had in “Niagara” from

Blanch’s original work was “transformative.”

221

The Second

Circuit believed that copyright law’s primary goal of “promoting

the Progress and of Science and useful Arts” would be “better

served” by finding that Koons’ creative transformation of the

images would not be held liable for infringement.

222

In the realm of music, Girl Talk digitally superimposes

recorded music against a background of other recorded music,

without license, to make a unique, and arguably “transformative,”

work.

223

The decision in Blanch was enough to scare many music

executives from pursuing sound recording infringement suits

against artists who take separate recordings to make a “mashup.”

224

In the case of musical compositions, on the other hand, owners of

the copyright are less frequently music executives and have been

more willing to fight infringement long enough for a judge to rule

on potential fair use.

225

B. The Judiciary and Musical Work Samples

Occasionally, some artists who wish to sample obtain a license

to the sound recording, but fail to receive the license for the

musical work.

226

While musical compositions are, without the

discrepancy of a circuit split, subject to the de minimis

threshold,

227

further lessening the necessity for a musical

composition license by expanding fair use would eliminate many

221

See id. at 252–53 (“Koons is, by his own undisputed description, using Blanch’s

image as fodder for his commentary on the social and aesthetic consequences of mass

media. His stated objective is thus not to repackage Blanch’s ‘Silk Sandals,’ but to

employ it ‘in the creation of new information, new aesthetics, new insights and

understandings.’”).

222

See id. at 259 (quoting U.S. CONST. art. I, § 8, cl. 8).

223

See id. at 259.

224

See MCLEOD & DICOLA, supra note 1, at 242 (quoting Philo Farnsworth) (“‘I think

that the Jeff Koons Niagara case could be used as a model for non-parody appropriation

in music.’”).

225

See, e.g., Estate of Smith v. Cash Money Records, 253 F. Supp. 3d 737 (S.D.N.Y.

2017); Estate of Barré v. Carter, 272 F. Supp. 3d 906 (E.D. La. 2017).

226

See MCLEOD & DICOLA, supra note 1, at 189.

227

See Newton v. Diamond, 349 F.3d 1189 (9th Cir. 2003).

2018] CARE FOR A SAMPLE? 217

costs and hurdles that currently exist for artists who wish to

sample.

228

Courts have not answered many sampling questions under the

fair use doctrine because the issues have not been tested enough.

229

The most thorough analysis came in Campbell v. Acuff-Rose

Music, where the Supreme Court dissected the first and fourth

elements of fair use in evaluating whether a commercial parody of

a song was fair use.

230

Although the case dealt primarily with how

a parody fits in a “transformative” context, courts in recent years

have used the ruling in Campbell to evaluate how unlicensed

appropriation of music can lawfully operate behind a fair use

defense.

231

1. Drake, Beyoncé, and a Sample’s Fair Trans-“Formation”

In Campbell v. Acuff-Rose Music, the rap duo 2 Live Crew

wrote the 1989 song “Pretty Woman,” which intended to satirize

the Roy Orbison classic “Oh, Pretty Woman” through comical

lyrics.

232

To do so, 2 Live Crew needed to sample portions of the

original musical composition, which was owned by Orbison’s

publisher Acuff-Rose.

233

2 Live Crew originally attempted to clear

the composition sample with Acuff-Rose, but after the publisher

denied the request, 2 Live Crew decided that it would release the

song and defend the infringement through fair use.

234

After Acuff-

Rose brought suit, the district court ruled that 2 Live Crew’s

parody did amount to fair use.

235

The Court of Appeals for the

228

See MCLEOD & DICOLA, supra note 1, at 237 (citing Artistic Property Law Professor

Jane Ginsburg).

229

See Ciccatelli, supra note 213 (quoting music attorney Morgan Pietz).

230

See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578, 590 (1994).

231

See generally Estate of Smith v. Cash Money Records, 253 F. Supp. 3d 737

(S.D.N.Y. 2017); Estate of Barré v. Carter, 272 F. Supp. 3d 906 (E.D. La. 2017).

232

See Campbell, 510 U.S. at 572, 582. “Pretty Woman” critiqued the original work by

copying the well-known first line and providing subsequent lyrics that depict catcalling

women in a non-romantic light. See Acuff-Rose Music, Inc. v. Campbell, 972 F.2d 1429,

1442 (6th Cir. 1992) (Nelson, J., dissenting) (“[The 2 Live Crew song] reminds us that

sexual congress with nameless streetwalkers is not necessarily the stuff of romance and is

not necessarily without its consequences.”).

233

See Campbell, 510 U.S. at 572.

234

See id. at 572–73.

235

See id. at 573.

218 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXIX:181

Sixth Circuit, on the other hand, reversed the district court’s

decision stating that any commercial use of copyrighted material

was unfair.

236

While the Supreme Court ultimately remanded the case for

evidentiary purposes, it ruled that the commercial nature of a

musical composition sample was not dispositive for unfair use but

rather “one element to be weighed” in the fair use analysis.

237

The

ruling opened the door for the possibility that a sample, whether or

not a parody, could be transformative to a degree that swings the

fair use factors in a sampler’s favor.

238

In doing so, the court

highlighted the importance of transformative use when conferring

the nature and purpose of the new composition and when

evaluating harm to the original composition’s market.

239

The Supreme Court stated that the Sixth Circuit erred in

determining that 2 Live Crew unfairly copied Roy Orbison’s “Oh,

Pretty Woman” because it did not take into consideration the

transformative elements when evaluating the purpose and character

of the taken work.

240

In this case, the lyrics taken from Orbison

were presented in a parody, which altered the expression and

meaning of the words.

241

The Court’s emphasis on transformation

in Campbell created an avenue for artists who wish to sample, if

they chose to risk the uncertainty of litigation, to proceed without

obtaining a license to sample musical work.

242

The creation of

transformative works like samples may, as Justice Blackmun

stated, “lie at the heart of the fair use doctrine’s guarantee of

breathing space” and it is the court’s discretion to determine the

236

See id. at 573–74.

237

See id. at 572.

238

See id. at 579 (holding the more transformative a work, the less significant other

factors that may weigh against a finding of fair use); see also Ciccatelli, supra note 213

(quoting music attorney Morgan Pietz) (“Whether or not a work is ‘transformative’ has

kind of become a shorthand way for a court to say that what a defendant is doing seems

different and good, so I think they should escape liability.”).

239

See Campbell, 510 U.S. at 579.

240

See id. at 594.

241

See id. at 583 (discussing how 2 Live Crew transformed the denotation of “Pretty

Woman” from a romantic daydream, to a parodic “bawdy demand for sex, and a sigh of

relief from paternal responsibility.”).

242

See Estate of Smith v. Cash Money Records, 253 F. Supp. 3d 737, 749 (S.D.N.Y.

2017).

2018] CARE FOR A SAMPLE? 219

size of that space on a case-by-case basis.

243

The uncertainty of the

size of the breathing space, however, is indicative in a pair of

recent cases at the district court level.

244

In the thirteenth track off his third studio album, Nothing Was

the Same, three-time-Grammy winner Drake used a spoken-word

recording from a 1982 Jimmy Smith song titled “Jimmy Smith

Raps” (“JSR”).

245

While Drake received a license to sample the

sound recording, which was owned by Elektra/Asylum Records, he

did not obtain a license from Smith for the musical composition.

246

In Drake’s song, “Pound Cake/Paris Morton Music 2” (“Pound

Cake”), he took approximately 35 seconds of “JSR” and

rearranged or deleted certain words and phrases.

247

The 35 second

sample, which prefaced the entrance of “Pound Cake’s”

background beat, served as the introduction for Drake’s track.

248

Smith’s family maintained that Smith would not have granted

Drake a license for the composition because he “wasn’t a fan of

hip hop.”

249

The court found that “Pound Cake” fundamentally altered the

message of the original work and its purpose was “sharply

different” from “JSR” to the point where Drake’s use was

transformative.

250

Drake’s edit of “JSR” changed Smith’s phrase

from “[j]azz is the only real music that’s gonna last” to “[o]nly real

music is gonna last.”

251

The court found that Drake’s slight twist of

Smith’s words, which turned a dismissive comment into a

statement about the certitude of real music, was enough to weigh in

favor of fair use.

252

243

See Campbell, 510 U.S. at 579 (quoting Sony Corp. of America v. Universal City

Studios, Inc., 464 U.S. 417, 478–80 (1984) (Blackmun, J., dissenting).

244

See generally Cash Money Records, 253 F. Supp. 3d 737; Estate of Barré v. Carter,

272 F. Supp. 3d 906 (E.D. La. 2017).

245

See Cash Money Records, 253 F. Supp. 3d at 743.

246

See id.

247

See id.

248

See id.

249

See id.

250

See id. at 750–51.

251

See id. at 749.

252

See id. at 750–51.

220 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXIX:181

On the other hand, in the Eastern District of Louisiana, the

estate of Anthony Barré, a comedian and musical artist also known

as Messy Mya,

253

sued Beyoncé for sampling his voice from his

YouTube videos for her hit single “Formation.”

254

Beyoncé’s track

opens with Barré’s voice questioning “What happened at the New

Wil’ins” and proclaiming “Bitch, I’m back by popular demand.”

255

Later, Barré’s voice is heard in an interlude, “Oh yeah, baby, oh

yeah I, oh, yes, I like that.”

256

Beyoncé and her producer Michael Williams, known

professionally as Mike Will Made-It, stated that they took Barre’s

stream of consciousness about New Orleans, distorted the sound,

and created a new and transformed message for “Formation.”

257

The district court, however, denied Beyoncé’s motion to dismiss

and determined that it was plausible that the use of Barré’s words

was not transformative to create a different expression because it

merely adapted Barré’s own expression to provide “Formation’s”

New Orleans aesthetic.

258

While the transformative element of fair use has created a path

for artists who wish to sample musical works without a license, the

“breathing space” of the element is not defined sufficiently to risk

infringement and litigation costs.

259

Additionally, the fair use

arguments in samples since Campbell have only defended against

the unlicensed use of artist-owned spoken-word works without

253

Barré was a social media sensation and burgeoning rapper who garnered tens of

thousands of views on YouTube and was tragically murdered in New Orleans after

leaving a baby shower in 2010. See Christopher Rudolph, Who Was Messy Mya?, L

OGO

NEWNOWNEXT (Feb. 9, 2016), http://www.newnownext.com/who-was-messy-mya/02/

2016/ [https://perma.cc/Q3PN-WZSZ].

254

Barré’s compositions were also used within Beyoncé’s Formation World Tour. See

Estate of Barré v. Carter, 272 F. Supp. 3d 906, 912 (E.D. La. 2017) (detailing that

“Formation” features Barré’s New Orleans commentary from his video “Booking the

Hoes from New Wildin’” in the song’s introduction and following its first refrain).

255

See id.

256

See id.

257

See id. at 916.

258

See id. at 932.

259

See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994) (quoting Sony

Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 478–80 (1984)

(Blackmun, J., dissenting)); see infra Section V.A.

2018] CARE FOR A SAMPLE? 221

underlying instrumentation.

260

Therefore, it is unclear how much

“breathing space” would be granted in cases of sampling songs that

contain music and lyrics.

261

The inclusion of recorded music and a

unique melody in a sample could place more weight on the amount

and substantiality taken from the original work.

262

The artists who have risked litigation, Beyoncé and Drake,

have the monetary means and clout within the music industry to

take a chance in litigation.

263

Beyoncé and Drake, who were both

coming off multiple-platinum certified albums before releasing

“Pound Cake” and “Formation,” had millions of fans on the edge

of their seats waiting to purchase their next projects.

264

Their

respective labels likely favored taking a chance on releasing the

non-cleared sample that could possibly be deemed fair use, rather

than delaying or scrapping a highly-anticipated album.

265

Independent artists or up-and-coming artists, on the other hand, do

not have the financial means or market anticipation to test a fair

use defense.

266

Generally, artists who wish to sample would likely

260

These suits from artists’ estates further show that record labels and large publishers

are usually not a complainant in these matters determining fair use, as they avoid

unfavorable decisions. See generally Estate of Smith v. Cash Money Records, 253 F.

Supp. 3d 737 (S.D.N.Y. 2017); Carter, 272 F. Supp. 3d 906.

261

See Campbell, 510 U.S. at 579 (quoting Sony Corp. of America v. Universal City

Studios, Inc., 464 U.S. 417, 478–80 (1984)) (Blackmun, J., dissenting); see also infra

Section V.A.

262

See Carter, 272 F. Supp. 3d at 937 (stating that it is plausible that a couple of catch

phrases could be deemed substantial); Cash Money Records, 253 F. Supp. 3d at 751

(quoting Campbell, 510 U.S. at 588) (finding a thirty-five second spoken-word sample

was enough for an artist “to ‘conjure up’ at least enough of the original” to accomplish

his transformative purpose) (emphasis in original).

263

See MCLEOD & DICOLA, supra note 1, at 173.

264

Drake’s second studio album, Take Care, which preceded Nothing Was the Same,

was certified platinum prior to his next release. Take Care is now certified quadruple

platinum as of March 2016. Drake, Gold & Platinum Records, RIAA,

https://www.riaa.com/gold-platinum/?tab_active=default-award&ar=Drake&ti=

Take+Care#search_section [https://perma.cc/AAC5-KE9Z] (last visited Feb. 8, 2018).

Beyoncé’s self-titled album, which preceded the release of “Formation” was certified

double platinum prior to her next release. Beyoncé, Gold & Platinum Records, RIAA,

https://www.riaa.com/gold-platinum/?tab_active=default-award&se=beyonce#

search_section [https://perma.cc/4R9V-2NZS] (last visited Feb. 8, 2018).

265

See supra Section II.A.

266

See infra Section V.A.

222 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXIX:181

need to rely on more than transformative use to ensure that the fair

use factors fall into their favor.

267

2. Girl Talk, Social Media, and the Prospect of a “Market

Benefit”

Philo Farnsworth, the independent label operator for Girl Talk,

proposed that market harm, the key fourth factor of fair use,

generally should fall in the favor of the sampler; however, courts

have been reluctant to weigh a potential market benefit that a

sample may have on the original work.

268

The transformative

analysis has shown that samples do not hurt the market for the

original composition because the new work usually incorporates an

entirely new genre, sound, lyrics, and message.

269

However, courts

not only evaluate the harm to the original work’s market, but also

the sample’s effect on the licensing market as well.

270

The Supreme Court in Campbell, stated that commercial use of

a work does not outright create an unfair use, but when evaluating

market harm the court “must take account not only of harm to the

original but also of harm to the market for derivative works.”

271

This consideration, however, is always incriminatory as courts

infer market harm because an unlicensed sample could have

provided the copyright owner an economic benefit if it was instead

licensed.

272

While the use of the transformative element was a positive for

artists who wish to sample, courts have generally ignored the

possibility that a use of a copyrighted work might confer market

benefits on the copyright holder as well.

273

Commenters have

267

See infra Section V.A.

268

See MCLEOD & DICOLA, supra note 1, at 242 (“That seems to weigh in our favor, as

it would be ridiculous to suggest that anyone was buying a Girl Talk album in place of

buying one of the original sources he is sampling.”).

269

See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 593 (1994) (finding 2 Live

Crew’s appropriation of “Oh, Pretty Woman” was a widely different rap parody and did

not harm the market of the original work).

270

See id.

271

Id. at 592 (quoting Harper & Row Publishers, Inc., v. Nation Enters., 471 U.S. 539,

568 (1985)).

272

See id. at 583–84.

273

See W. Michael Schuster, Fair Use, Girl Talk, And Digital Sampling: An Empirical

Study of Music Sampling’s Effect on The Market for Copyrighted Works, 67 OKLA. L.

2018] CARE FOR A SAMPLE? 223

stressed that courts should include market benefit to its analysis,

because it “actually furthers the utilitarian goal of copyright by

incentivizing the creation of new works through economic

gain.”

274

The current binary system of market harm, which weighs

a neutral market in favor of fair use, fails to recognize that

unlicensed sampling actually benefits sales of the sampled song.

275

To properly evaluate the fourth factor of fair use in a sampling

context, courts should not consider the sampling work as a

substitute, but rather a promotion.

276

No one is purchasing Girl

Talk’s music as a replacement for the original works that he

samples; however, the sales of the original works he sampled

increase after his audience purchases his work.

277

Girl Talk’s 2010

album All Day featured 237 recognizable samples from different

genres and generations.

278

A study compiled the total sales data for

the original compositions that Girl Talk sampled from the year

prior to All Day’s release and the year after.

279

The study shows

that after All Day’s release, the original songs that Girl Talk

sampled saw a sizable increase in sales.

280

The Girl Talk phenomenon is partly explained by devoted

music fans researching the samples their favorite artists incorporate

into their work. When devoted fans appreciate an artist’s use of a

sample, they want to learn more about the source behind the

REV. 443, 474 (2015); Jeanne C. Fromer, Symposium: Campbell at 21: Market Effects

Bearing on Fair Use, 90 WASH. L. REV. 615, 618 (2015) (“To break out of the analytical

circularity of weighing against fair use the possibility that the defendant’s use could have

been licensed, courts should focus on market benefit alongside market harm in assessing

fair use”); see also Bond v. Blum, 317 F.3d 385, 396 (4th Cir. 2003) (noting in its

analysis of market harm that the market would actually benefit from use).

274

See Schuster, supra note 273, at 445.

275

An empirical study of Girl Talk’s All Day found that unlicensed samples actually

benefited sales of the sampled songs to a 92.5% degree of statistical significance. See id.

at 487.

276

See id. at 474.

277

See id. at 473–74.

278

See Schuster, supra note 273, at 473. The data set does not include songs that were

released less than two years before All Day to avoid calculating a large sales spike or

sales decline from non-All Day factors. See id. at 473–74.

279

See id. at 474–75.

280

According to Schuster, the likelihood of 237 random Billboard-charting songs

seeing a similar rise in sales in any given year is only about 7.5%. See Schuster, supra

note 273, at 474.

224 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXIX:181

original work and often find themselves listening to artists or

genres that they would not normally find on their playlists.

281

With

the user-friendly interfaces of streaming services and near-endless

discography, samples are driving up streaming numbers for

original works.

282

Hassan Bargathi

283

saw the demand among the followers of his

@OnlyHipHopFacts Twitter account for a simple method to

interact with the original source behind a favorite artist’s

sample.

284

Bargathi created “Song & Sample” playlists through the

Apple Music streaming platform, where Bargathi juxtaposed a

beloved hip-hop artist’s song next to the original song that it

sampled.

285

Fans of Kanye West utilize the playlist to experience

West’s hits alongside the original Elton John, Sister Nancy, and

Nina Simone tracks featured within West’s production.

286

In addition to West, Bargathi created popular playlists for

prominent hip-hop artists Kendrick Lamar and J. Cole, and the

playlists have reached millions of listeners.

287

When Bargathi

directed his followers on Twitter to the Apple Music link to his

three playlists, his tweets received a total of 4.6 million

impressions, which lead to 822,263 visits to his playlists.

288

For

many fans, their favorite artist has also served as an introduction to

different cultures and generations; therefore, a sample has a dual

function of not only creating a new sound, but it also operates as a

marketing campaign for the artists of the original sampled work.

289

281

E-mail from Hassan Bargathi, Social Influencer, @OnlyHipHopFacts, to Sean M.

Corrado, Senior Research and Writing Editor, F

ORDHAM INTELL. PROP., MEDIA & ENT.

L.J. (July 24, 2018, 9:54 AM EST) (on file with author).

282

Id.

283

Bargathi is a social influencer who operates the @OnlyHipHopFacts Twitter

account, which provides 441,700 followers with daily music trivia and breaking news in

the music industry.

284

Email from Hassan Bargathi, supra note 281.

285

Id.

286

Id.

287

Due to recent popular demand, Bagarthi has also created playlists for fans of Drake,

Notorious B.I.G., Lil Wayne, Dr. Dre, The Game, Just Blaze, Eminem, Nas, Logic, A

Tribe Called Quest, Big K.R.I.T., and Aretha Franklin. Id.

288

Id.

289

Id.

2018] CARE FOR A SAMPLE? 225

If courts were to consider a market harm analysis through a

tripartite framework that includes whether the sampled song (1)

negatively affected the original song’s market, (2) had no effect on

the original song’s market, or (3) positively affected the original

song’s market, the market effect of sampling would be appraised

differently.

290

When evaluating the fourth factor of fair use, courts

would compare any alleged market harm with a quantified market

benefit.

291

If that benefit greatly outweighs the harm, the alleged

infringer may receive an improved evaluation under the fourth

factor that could influence an overall determination of fair use.

292

IV. CURING THE COMPLEXITY OF THE LICENSING SYSTEM THROUGH

LEGISLATION

Part IV discusses the legislature’s inability to streamline

inefficiencies of the current music licensing system. Section IV.A

describes the convolution that arises when attempting to track

down current copyright holders. Section IV.B presents a

background of the often-proposed possibility of utilizing a

compulsory license to remedy the complex sampling system.

Section IV.C, however, discusses the how the artists in the music

industry heavily disapproved of utilizing compulsory licenses for

sampling and effectively terminated the effort.

A. Locating Copyright Owners

Licensing within the music industry has developed into an

obstacle course that artists who wish to sample must either attempt

to weave through themselves or hire an agency to do it for them.

293

Although artists who wish to sample are often familiar with the

290

See Schuster, supra note 273, at 484.

291

See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 583 (1994); see Schuster,

supra note 273, at 484.

292

See Campbell, 510 U.S. at 583; see Schuster, supra note 273, at 484.

293

MCLEOD & DICOLA, supra note 1, at 168 (quoting hip hop producer Hank Shocklee)

(“‘The question is, who do you contact? You have to find the writers on the record. Then

when you go and look and find the writers of the record, you try to find the publishing

company that was associated with those writers. Well, when this thing starts getting

transferred and people start signing their rights over to the next third party and the fourth

party and fifth parties and things of that nature, well, we’re not privy to that

information.’”).

226 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXIX:181

artist who performed the work, more than just that artist may own

the rights to that song and the information about all a

composition’s copyright owners are generally not readily

available.

294

Songwriters, producers, sound-engineers, and other

credited artists oftentimes share the copyright to a musical

composition.

295

These artists then frequently assign some or all of

their publishing rights to third-party publishers and sell their

performance rights to performing rights organizations (“PROs”)

which take an ownership stake in the copyright for a share of the

profits.

296

Holders of the sound recording copyright can also be difficult

to locate.

297

While record labels generally claim title to the

masters, artists sometimes can share an interest in their master or

acquire it outright.

298

Additionally, sound recordings only became

copyrightable in 1972, so many sound recordings produced earlier

were not registered through the Copyright Office and their

subsequent transfers of title were not carefully documented.

299

Since sound recordings created prior to 1972 did not have federal

protection, many of their copyrights are governed under state laws,

which dictate different rules for digital performances.

300

Because

of the difficulties in finding the current copyright holders for

musical compositions and sound recordings, the licensing system

is a complicated affair that obstructs the clearance process and

increases transactional costs.

301

294

See BARGFREDE, supra note 44, at 65.

295

See id.

296

See id. (further describing how publishing rights are usually acquired in one of three

types of deals: (1) a standard deal that assigns 100% of the ownership to the publisher,

(2) a co-publishing deal in which the ownership is split in half, or (3) an administrative

deal in which the songwriter retains the full copyright ownership).

297

See Lisa Weiss, Music Licensing, PRACTICAL LAW, note 6-584-9909 at 10–12 (Dec.

2014-Jan. 2015).

298

See id.

299

See id. at 4.

300

See BARGFREDE, supra note 44, at 115. (“Given that Aretha Franklin . . . and other

high profile acts recorded some of their most popular works in the 1960s, this means that

their works might be being streamed illegally. The group the Turtles recently filed and

won a lawsuit against SiruisXM for performing their sound recordings without a

license.”).

301

See Weiss, supra note 297; supra Section II.A.

2018] CARE FOR A SAMPLE? 227

The complex path to locate a true copyright owner of a musical

composition was highlighted in a legal dispute over the payment of

royalties for Christina Aguilera’s 2006 hit “Ain’t No Other

Man.”

302

Famous hip-hop producer DJ Premier produced

Aguilera’s track and utilized a pair of brass samples from 1960s

soul records to provide a high-tempo funk that would show off

Aguilera’s voice.

303

Prior to the song’s release in 2006, Christina

Aguilera and her record label, RCA Records, obtained a license

from Codigo Music to sample a 1960s song titled “Hippy Skippy

Moon Strut” (“Hippy Skippy”).

304

After the song’s commercial

success, Emusica Records requested RCA Records to withhold the

sample’s attributable royalty payments to Codigo Music because

Emusica claimed to be the true owner of Hippy Skippy’s sound

recording, and later, the musical composition as well.

305

Through numerous claims and years of discovery, the court in

TufAmerica. v. Codigo Music sorted out plausible chains of

ownership for Hippy Skippy.

306

Sometime in 1966 or 1967, Bobby

Marin wrote the song “I’ll Be a Happy Man” (“Happy Man”) for a

record label called “Speed” and it was unclear whether one or both

parties possessed its musical composition copyright.

307

In 1969,

Harold Beatty composed Hippy Skippy, which was a derivative

work of the original Marin composition, and sold the rights of the

work to Slew Enterprises.

308

Slew Enterprises then assigned the

rights of the work to Eden Music Co., which was owned by Clyde

302

See TufAmerica v. Codigo Music, 162 F. Supp. 3d 295 (S.D.N.Y. 2016). In yet

another example of a song receiving critical acclaim while containing a sample, “Ain’t

No Other Man” won a Grammy for Best Female Pop Vocal Performance. Artist:

Christina Aguilera, R

ECORDING ACADEMY GRAMMY AWARDS, https://www.grammy.com/

grammys/artists/christina-aguilera [https://perma.cc/8GSP-T5LE] (last visited Oct. 5.,

2018).

303

See Corey Moss, Christina’s New Split-Personality Album is Mature And ‘Dirrty’,

MTV (Apr. 27, 2006), http://www.mtv.com/news/1529698/christinas-new-split-

personality-album-is-mature-and-dirrty [https://perma.cc/Y3HD-XDEF].

304

See TufAmerica, 162 F. Supp. 3d at 303.

305

See id. at 303, 309.

306

See id. at 310.

307

Approximately a year after the original song’s creation, Marin and Morton Craft, an

owner of Speed, edited an instrumental version of Happy Man and credited the new song

to The Moon People, which was another band on the Speed label. See id. at 302–03, 310.

308

Slew Enterprises was owned and operated by Stanley Lewis, who was a business

associate of Morton Craft. See id. at 302.

228 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXIX:181

Otis, the eventual founder of Codigo Music.

309

Allegedly, Craft

sold the rights to all of Slew’s recording catalog in 1969 to

Roulette Records, which then sold the catalog to Fania Records in

1975.

310

Fania Records, through a series of name changes and

acquisitions, became Emusica in 2005.

311

Despite that transaction,

Craft sold the rights of Happy Man to TufAmerica in 2004.

312

The messiness of the Hippy Skippy sample occurred in part

because sound recording copyrights were not recognized until

1972.

313

Because he received no compensation for writing the

song, Marin was under the impression that the musical

composition copyright for Happy Man, which was published and

listed in BMI’s database under “Bobby Marin Music Publishing,”

lied with him and that Craft originally owned the sound

recording.

314

After the success of “Ain’t No Other Man,” Marin

sold the musical composition copyright to Emusica for $25,000,

giving Emusica what they thought was complete control of both

copyrights.

315

The court is still attempting to sort out the ownership debacle

for Aguilera’s sample.

316

The number of times that title changed

hands and the number of people who had a hand in creating the

music exemplifies an ownership system unsuitable for today’s

mainstream sampling culture.

317

To further obscure the issue,

309

See id.

310

See id. at 307–08.

311

See id. at 308–09.

312

See id. at 304–05.

313

See PASSMAN, supra note 135, at 231; see also TufAmerica, 162 F. Supp. 3d at 319.

314

See TufAmerica, 162 F. Supp. 3d at 307.

315

See id. at 308–09.

316

See generally TufAmerica, Inc. v. Codigo Music LLC, 11 Civ. 1434 (ER), 2017

U.S. Dist. LEXIS 128054 (S.D.N.Y. Aug. 11, 2017).

317

See TufAmerica, 162 F. Supp. 3d at 308–09; see also MCLEOD & DICOLA, supra

note 1, at 97–98 (describing how Alan Lomax, a 1930s folk song writer received a

songwriting credit for Jay-Z’s Takeover through three generations of music: (1) Lomax

was added as a co-author to the Animals’ version of the song in the 1960s and Grand

Funk Railroad covered the song a few years later, (2) KRS-ONE sampled a brief guitar

riff from Grand Funk Railroad’s cover for his 1990s hit “Sound of Da Police” and

attributed writing credits to the Animals and Lomax, and (3) Jay-Z sampled “Sound of

Da Police” and attributed credit all of the artists named in the chain); Marya v.

Warner/Chappell Music, Inc., 131 F. Supp. 3d 975, 1002 (C.D. Cal. 2015) (finding the

2018] CARE FOR A SAMPLE? 229

Aguilera, who credited Harold Beatty as a songwriter assumedly

per the sampling agreement with Codigo Music, also enlisted a

team of high profile songwriters to construct “Ain’t No Other

Man.”

318

In addition to DJ Premier, popular songwriter Kara

DioGuardi and album producer Charles Martin Roane were

afforded musical composition credit.

319

Therefore, in this current

licensing system, if someone were to ever sample “Ain’t No Other

Man,” which sampled Hippy Skippy (which sampled Happy Man),

the process of tracking and securing clearance may require a

prohibitive amount of effort and funds.

320

B. The Possibility of Compulsory Licensing

As sampling became more prevalent, many have looked toward

the legislature to tame the sample licensing system by creating a

compulsory license for sampling.

321

If sampling met all of the

conditions under Section 115 of the Copyright Act and could be

found eligible for compulsory licensing, transaction costs and

licensing costs would decrease for artists who wish to sample.

322

To acquire a compulsory license, an artist avoids transaction costs

by simply filing a notice with the Copyright Office and paying a

cut-rate fee per record.

323

Currently, sound recordings and musical

compositions are only subject to compulsory licenses for five

purposes: (1) cable television rebroadcasts, (2) licensing to Public

Broadcasting System (“PBS”), (3) jukeboxes, (4) radio and non-

record label had no evidence that it properly acquired the musical composition right of

the traditional “Happy Birthday” song over the course the song’s century-long existence).

318

See CHRISTINA AGUILERA, BACK TO BASICS (RCA Records 2006) (denoting

songwriting credits for “Ain’t No Other Man” to Aguilera, DioGuardi, Chris E. Martin

p.k.a “DJ Premier,” Beatty, and Roane).

319

See id.

320

See TufAmerica, 162 F. Supp. 3d at 308–09. Not only would the chain of copyright

title be difficult to locate, but artists who wish to sample could end up having to divide a

significant share of musical composition royalties with numerous artists from several

generations. M

CLEOD & DICOLA, supra note 1, at 97–98.

321

Compulsory licenses are the exceptions to the monopoly of a copyright, where the

owner must issue a license at a statutory rate to someone who wants to use the

copyrighted work. See P

ASSMAN, supra note 135, at 228.

322

See id. at 231.

323

See id.

230 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXIX:181

interactive streaming, and (5) use of non-dramatic musical

compositions through digital or physical phonorecords.

324

The fifth purpose is the most relevant in discovering a potential

pathway for compulsory sampling, but current conditions for

compulsory licenses dictate that the licensee “shall not change the

basic melody or fundamental character of the [original] work.”

325

For artists who wish to take a copyrighted work and make it their

own, this provision limits the use of compulsory licensing to cover

songs.

326

When an artist is granted a compulsory license, the only

change that he or she can make to the original work is to “conform

it to the style or manner of interpretation of the performance.”

327

The provision allows an artist to tweak a work sonically, without

changing or adding any lyrics or melodies,

328

but does not provide

proper grounds for an artist who wishes to sample another work.

329

Recently, the “no major changes” provision became more

permeable with the booming ringtone industry in the 2000s.

330

Record labels wanted to acquire the composition copyright from

PROs at a statutory rate and become a one-stop shop for ringtone

companies looking to purchase the rights to thirty-second clips.

331

Publishing companies, hoping to not have ringtones subjected to a

compulsory license so they could charge their own rate, argued

324

The Copyright Act defines a phonorecord as material object that embodies sounds

other than those accompanying audio-visual recordings such as movies. 17 U.S.C. § 115

(2012); see also PASSMAN, supra note 135, at 228–29.

325

17 U.S.C. § 115(a)(2).

326

Id.

327

Id.

328

Compare DOLLY PARTON, I Will Always Love You, on JOLENE (RCA RECORDS 1974)

(Parton, who originally wrote “I Will Always Love You,” sang the tune in a country folk

style and the song reached number one in 1974) with W

HITNEY HOUSTON, I Will Always

Love You, on THE BODYGUARD: ORIGINAL SOUNDTRACK ALBUM (Arista Records 1992)

(Houston, who covered “I Will Always Love You” for a movie soundtrack, sang the

same melody and lyrics, but with a pop-gospel assertion).

329

17 U.S.C. § 115(a)(2).

330

A ringtone, which is a thirty-second edit of a full song played when a cell phone

receives a call, could be considered a significant change of an original song. Ringtones

often cut out the majority of a song to leave a catchy refrain for listeners to enjoy prior

answering the phone. See P

ASSMAN, supra note 135, at 231.

331

When paired with their own sound recording copyright, record labels would come

into sole possession of ringtone rights; however, the musical composition copyright

would be more valuable because many mobile products re-recorded the songs used for

ringtones. See Weiss, supra note 297, at 16.

2018] CARE FOR A SAMPLE? 231

that the cutting of the song was a change too significant to fall

under Section 115(a)(2).

332

After several years of debating, the

Copyright Office issued an opinion that formed a compromise,

where ringtones would be considered a work subject to

compulsory licenses, but the statutory rate for ringtones would be

greater.

333

In its ringtone decision, the Copyright Office, without

consulting the artists themselves, was adamant on making a

distinction between ringtones and samples.

334

The legislative intent

of the Copyright Act’s “no major changes” clause was to permit

some creativity for music being used under a compulsory license,

“but without allowing the music to be perverted, distorted, or

travestied.”

335

While the flourishing ringtone industry spawned a

conversation about sampling’s place in Section 115, the underlying

intent of the clause and the Copyright Office’s distinction between

ringtones and samples appeared to extinguish the possibility of

compulsory sample licensing under the Act as currently written.

336

Thus, in order for compulsory sampling to exist, new provisions

would have to be added to the Copyright Act.

337

C. An Objectionable Push for Legislative Clarity

In July of 2013, the U.S. Department of Commerce Internet

Policy Task Force (the “Task Force”) issued a proposal for a

discussion on copyright policy, creativity and innovation in the

332

See also Passman, supra note 313, at 231.

333

See Mechanical and Digital Phonorecord Delivery Rate Adjustment Proceeding, 71

Fed. Reg. 64,303, 64,317 (Nov. 1, 2006); see also B

ARGFREDE, supra note 44, at 81

(noting that the Copyright Office ruled that ringtones were subject to the compulsory

license in 2006, but the Copyright Royalty Board in 2008 upped the statutory rate for

ringtones from 9.1 cents to 24 cents).

334

See Mechanical and Digital Phonorecord Delivery Rate Adjustment Proceeding, 71

Fed. Reg. at 64,308 (“ringtones are excerpts that are taken from musical works and

distributed as such; samples, however, are short excerpts that are blended into what are

clearly new creative works.”).

335

H. R. REP. NO. 94-1476, at 109 (1976).

336

See Mechanical and Digital Phonorecord Delivery Rate Adjustment Proceeding, 71

Fed. Reg. at 64,307 (Nov. 1, 2006).

337

See U.S. DEP’T OF COMMERCE INTERNET POLICY TASK FORCE, COPYRIGHT POLICY,

CREATIVITY, AND INNOVATION IN THE DIGITAL ECONOMY 28–9 (2013).

232 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXIX:181

digital economy.

338

The proposal suggested a compulsory license

to ease the path for remixing and sampling by harmonizing fees

based on the size and substance of the sample.

339

The compulsory

license would put a ceiling on what a composition or recording

copyright owners could charge for any sample.

340

While the proposition would undeniably make the process

more affordable and efficient for artists who wish to sample, the

Task Force did not solve the contention between making sampling

more affordable and not greatly weakening the copyright

protections of music.

341

In response to the Task Force’s proposal

for a discussion, artists Steven Tyler, Don Henley, Dr. Dre, Sting,

Deadmau5, and Britney Spears penned a joint letter stating,

“Artists can, and should continue to be able to, deny a use that they

do not agree with. For one, an artist should be able to turn down

uses in connection with messages that the artist finds

objectionable.”

342

Artists do not want to be forced to license their music to

sample because it could result in an unwanted endorsement,

inappropriately transform their own art, or greatly reduce the

overall value of their music.

343

Stripping an artist of their right to

say no, even in the spirit of allowing more creativity, could stifle

creativity, as an artist may withhold their work if they knew that

one day they must give up their right to approve derivative uses.

344

338

Request for Comments on Department of Commerce’s Green Paper on Copyright

Policy, Creativity, and Innovation in the Digital Economy, 78 Fed. Reg. 61,337 (Oct. 3,

2013).

339

See U.S. DEP’T OF COMMERCE INTERNET POLICY TASK FORCE, COPYRIGHT POLICY,

CREATIVITY, AND INNOVATION IN THE DIGITAL ECONOMY 29 (2013).

340

See id.

341

See id.

342

The letter in response to the task force’s request for comments also reveals the

government’s poor understanding of sampling culture. See Dina LaPolt & Steven

Tallarico, Comment Letter on Request for Comments on Department of Commerce’s

Green Paper on Copyright Policy, Creativity, and Innovation in the Digital Economy

(Feb. 10, 2014) (“The Green Paper uses ‘remix’ interchangeably to refer to what are

known in the industry as remixes, mash-ups, and sampling . . . . It is important to clarify

exactly what we are talking about by using the proper industry terminology. Artists and

songwriters do not usually equate ‘remixing’ with mash-ups or sampling.”).

343

See id.

344

See Andre Young, Comment Letter on Request for Comments on Department of

Commerce’s Green Paper on Copyright Policy, Creativity, and Innovation in the Digital

2018] CARE FOR A SAMPLE? 233

Recently, artists have exercised their objections to their music

being played at political rallies

345

or during news segments.

346

After the resistance against the compulsory license proposal,

the legislature has been more focused on the creation of a

centralized licensing system that would streamline licensing and

simplify information on current music copyrights.

347

Currently, the

recently passed Music Modernization Act (“MMA”) presents a

system that unites all PROs to create a “Super PRO” and allows

blanket licenses for digital streaming.

348

While the MMA may not

specifically address sampling issues, the creation of a centralized

Super PRO may trim transactions costs within the complex

sampling system.

349

V. ENHANCING THE SAMPLE LICENSING SYSTEM WITH

ORGANIZATION AND TECHNOLOGY

Since the current sample clearance system possesses

unreasonably high transaction costs, a lack of organization in

Economy (Feb. 3, 2014), https://www.uspto.gov/sites/default/files/documents/lapolt_and

_tyler_comment_paper_02-10-14_0.pdf [https://perma.cc/EFQ9-Q6AB].

A

NDRE YOUNG, RE: REQUEST FOR COMMENTS ON DEPARTMENT OF COMMERCE’S GREEN

PAPER ON COPYRIGHT POLICY, CREATIVITY, AND INNOVATION IN THE DIGITAL ECONOMY

(2014) (“I know that I wouldn’t have released some of my own songs had I known that,

in the future, anyone could remix or alter them without my permission. There are others

that feel the same way. Why create something when, ultimately, it could be legal for

somebody else to destroy it?”).

345

See Deena Zaru, Steven Tyler Threatens Trump with Legal Action for Playing

Aerosmith Music at Rallies, ABC NEWS (Aug. 23, 2018, 4:50 PM),

https://abcnews.go.com/Politics/steven-tyler-trump-aerosmith-music-rallies-

dream/story?id=57364775 [https://perma.cc/HZ4U-XXA5] (noting that Steven Tyler sent

President Donald Trump a cease and desist letter for Trump’s use of Aerosmith’s “Livin’

on the Edge” at a political rally in West Virginia).

346

In one example, Elly Jackson, professionally known as La Roux, stated that Fox

Business’s use of her 2009 hit “Bulletproof” during a segment introducing bulletproof

backpacks for school children was “abhorrent” and she would “never approve [her] music

to be used in [that] way.” See Joshua Bote, La Roux Calls Fox Business Using

‘Bulletproof’ in Back-to-School Segment ‘Abhorrent,’ B

ILLBOARD (Aug. 21, 2018),

https://www.billboard.com/articles/news/pride/8471506/la-roux-calls-out-fox-business-

bulletproof-back-to-school [https://perma.cc/3FH3-ZK7J].

347

See Music Modernization Act of 2018, S. 2823, 115th Cong. (Oct. 11, 2018).

348

See id.

349

See id.; see also infra Section V.B for a discussion on how the MMA could initiate a

streamlined sampling system.

234 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXIX:181

identifying copyright ownership, and a serious disparity between

the artists who can afford a sample and those who cannot, the

sample clearance system ought to be redesigned. Due to a lack of

clarity from the courts, an optimal solution to the expensive and

bureaucratic sampling licensing system may be a solution that

combines legislation with developing technologies in the

marketplace. With these tools at hand, there is an opportunity to

create a more affordable licensing system without critically

weakening an artist’s copyright, and achieve a balance between

expression and control that is fairer for independent artists. To do

so, it may be best to resolve the issues in licensing the musical

composition copyright and the sound recording copyright

separately. Section V.A will propose a compulsory license solution

for sound recording samples, while Section V.B proposes a

solution for musical compositions by applying blockchain

technology to a unified licensing system.

A. Sound Recording Solution: Tethering a Legislative Compulsory

License

Although a recent movement for a sample compulsory license

was met with immediate pushback, a sample license can become

affordable without sacrificing author control by involving the two

copyrightable elements of a song in a compulsory license. Sound

recordings and musical compositions are two separate

copyrightable elements held by two different owners, but

oftentimes share the same product.

350

Negotiating for two separate

licenses for sampling creates a burdensome market for artists who

wish to sample, especially for those who do not have the finances

to afford both clearances.

351

Therefore, to promote the use of

sampling, the licensing system must lower the amount of upfront

costs for artists who wish to sample.

As discussed in Part IV, artists are profoundly not in favor of

being required to license their work at a statutory rate to whomever

350

See generally LAPOLT & FOX, supra note 2.

351

See supra Section II.A for a discussion on the difficulties of acquiring sample

licenses and supra Section IV.A for a discussion on the complexity of the licensing

system.

2018] CARE FOR A SAMPLE? 235

wishes to use it.

352

Because more artists generally possess

ownership in the musical composition rather than the sound

recording, the artists may feel differently toward imposing a

compulsory license for sound recordings without altering the

current freedoms within the composition copyright. Beyond

financial interests, record labels, which usually are in possession of

the recording copyright, do not possess much concern in

copyrightable works.

353

If an artist clears a musical composition

for another artist who wishes to sample, a record label should not

be an insurmountable financial obstacle for independent artists

attempting to create.

It may be in creativity’s best interest for the legislation of a

compulsory license for sound recordings that is only activated if an

artist who wishes to sample successfully negotiates clearance for

the corresponding musical composition sample. In this case, an

artist’s copyright to her music is not restricted and musical

creativity is still afforded proper protection. Record labels, on the

other hand, may not enjoy the limitation of the sound recording

copyright because it would eliminate their ability to set their own

fees for samples. Because of the size of the music industry, the

sample licensing system is not an overwhelmingly lucrative part of

a record label’s business; therefore, a statutory rate for sound

recording sampling licenses may be attainable.

If a compulsory license for sound recordings were to be

implemented in this conditional fashion, it would most likely

increase the value of the musical composition license. To ensure

that sample clearances would remain affordable, musical

compositions should be licensed at a certain percentage of

ownership, as they usually are now, rather than a lump sum

payment.

354

This would lower the upfront costs of sampling and

allow independent artists to sample prior art while also ensuring

that proper credit is attributed to the original artist on the back end.

The ownership percentage could also be tethered to a statutory

royalty rate for the corresponding sound recording.

352

See, e.g., YOUNG, supra note 344.

353

See generally LAPOLT & FOX, supra note 2.

354

See id.

236 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXIX:181

For example, if an artist who samples negotiates a 25%

ownership interest in exchange for the license to use the musical

composition, the artist who samples would be entitled to sample

the sound recording at a rate of $0.005 per copy.

355

Perhaps a 50%

ownership in the new composition, which is more common in

extensive or higher profile samples, would correspond with a

statutory sound recording rate at $0.01 per copy.

356

This system

would ensure that the overall costs of sampling would decrease and

that both licenses would not possess an overwhelming cost at the

onset of creation. Additionally, this would lower the transaction

costs in obtaining each sound recording license because the

clearance for one of the copyrightable elements would not invoke a

months-long negotiation period.

357

Artists still may only wish to sample a musical composition

and would not want to pay a potential premium for the activation

of the sound recording compulsory license.

358

Those artists could

still negotiate a lump sum payment with the owner of the

composition copyright and stipulate that a compulsory license for

the sound recording would not be activated.

359

These terms can be

documented with the Copyright Office, which will publicly

recognize whether the musical composition agreement induces the

compulsory use of its corresponding sound recording. If the sound

recording was taken after previously stipulating that its use was

355

According to McLeod & DiCola, a 25% interest in return for a musical composition

usually corresponds with a $0.025 per copy rate for the sound recording. See MCLEOD &

DICOLA, supra note 1, at 205.

356

According to McLeod & DiCola, a 50% interest in return for a musical composition

usually corresponds with a $0.10 per copy rate for the sound recording. See id.

357

See supra Section II.A for a discussion on the transaction costs of obtaining

sampling licenses.

358

See supra Section I.B for a discussion on sampling without a sound recording

license.

359

When an artist only samples the musical composition, the new song’s similarities to

the original track tend to be less than if it utilized the original sound recording. Because

of the decrease in similarity, artists who wish to sample may bargain for a better deal if

they are choosing to forgo the sound recording clearance. Hypothetically speaking,

Lauryn Hill may have requested a larger share of Kanye West’s “All Falls Down”

musical composition if she knew that her voice was going to provide the hook, rather

than Syleena Johnson’s. See supra Section II.A for a discussion on interpolations and

sampling without a sound recording license.

2018] CARE FOR A SAMPLE? 237

unwanted, the use of the composition would be in violation of the

agreement and would amount to prima facie infringement.

The proposed conditional compulsory licenses for sound

recordings would keep creative control in the hands of the artists,

while also providing a more affordable system for artists who wish

to sample. Additionally, if the need for negotiations between artists

and record labels are eliminated, artists who wish to sample would

not face discrimination for their status within the music industry.

Whether it be acts like Lupe Fiasco and Frank Ocean who had

public frustrations with their former labels or artists like Chance

the Rapper who have made chart-topping hits about defying the

label-dominated industry, these artists would primarily negotiate

with other artists and their representatives, rather than the record

labels themselves.

360

Also, artists who wish to sample will not have to enlist the aid

of third-party sample clearance agencies who have relationships in

the industry to negotiate on their behalf, thus greatly lowering the

amount of transactional costs associated with licensing sound

recordings.

B. Musical Composition Solution: Unified Licensing System &

Blockchain Technology

Because it is notably difficult to track down all the copyright

ownerships within one musical composition without a thorough

investigation, transaction costs can be significantly lessened if

ownership information became readily accessible and the quantity

of performing rights organizations (“PROs”) decreased. Two

budding movements within the music industry can streamline a

licensing system that needs organization and clarity: (1) the

unification of PROs and (2) the development of blockchain

technology. While this Note will not perform a deep analysis of

how blockchain ledgers operate, it will demonstrate how members

of the music industry have looked toward the technology to help

alleviate general copyright complications and propose that its

utility could improve the sample licensing system.

360

See supra Section II.A for a discussion on independent artists’ nonfinancial

obstacles along the road to sampling.

238 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXIX:181

1. Unification of the Licensing System

A current movement under the likes of the MMA would unite

all PROs and create a “Super PRO” to allow blanket licenses for

streaming services.

361

If the proposed Super PRO could act as an

all-encompassing search tool for sample licensing, artists who wish

to sample would not be required to enlist third party help to locate

all the separate owners of the musical composition copyright.

Presumably, most artists would sign their performances rights over

to the Super PRO which would then keep a searchable database of

all owners of the composition.

362

There would be no need to search

through a myriad of PROs or email representatives of the original

artists to track down the copyright’s current ownership status.

363

A unified system for sampling would also serve a secondary

purpose of educating artists and fans. If all musical compositions

are documented within one publishing rights organization, artists

and fans would also have the benefit of locating which artists have

ownership interests in different musical works. If the Super PRO

shares a public database, like BMI and SESAC currently do,

364

users can search for songwriting and production credits to

understand how a sample was used in the making of a composition.

Sampling culture has brought together sounds from different

genres and generations to give a wide audience an insight into

music history.

365

In recent years, there has been an interest for fans

to obtain knowledge of who has been musically credited on their

favorite artist’s album.

366

The more accessible the information of a

361

See supra Section IV.C for a discussion of the recently signed Music Modernization

Act; see H.R. 4706, 115th Cong. (2017).

362

See generally LAPOLT & FOX, supra note 2.

363

See supra Section II.A for a discussion on the transaction costs of obtaining

sampling licenses.

364

BMI REPERTOIRE, http://repertoire.bmi.com/DetailView.aspx?detail=titleid&keyid=

12244833&ShowNbr=0&ShowSeqNbr=0&blnWriter=True&blnPublisher=

True&blnArtist=True&blnAltTitles=True [https://perma.cc/DYL6-TCBQ] (last visited

Aug. 29, 2018) (advertising that BMI’s search engine allows for viewers to search

through more than 13 million works from more than 800,000 songwriters); SESAC

Repertory, https://www.sesac.com/#/repertory/search?term=&category=song&page=1

[https://perma.cc/DF58-C56Z] (last visited Aug. 29, 2018).

365

See supra Section I.A.

366

To capture listeners’ interest in what artists are behind their favorite tracks, Spotify

has recently developed its web player to show all attributable credits for songs and

2018] CARE FOR A SAMPLE? 239

song’s creation is for artists and fans, the easier it is for them to

learn about different artists, genres, and the overall evolution of

music and entertainment.

2. Blockchain Technology to Track Copyrights and Cut

Transaction Costs

The music industry has invested into new technologies that will

evolve the entertainment experience.

367

In the past two decades,

the music industry was drastically altered with the development of

digital downloadable songs and once again with the popularity of

streaming music.

368

New technologies can also shape how the

music industry, especially sampling culture, will evolve in the

future. Technologies and advancements that use blockchain ledgers

could provide a more successful system for artists who wish to

sample by significantly decreasing transactional costs and

documenting copyright owners’ identities.

369

Blockchain technology aims at utilizing a decentralized secure

database technology to document the recordation, reproduction,

distribution, and trade of digital works of art.

370

Many industries

that deal primarily with copyright issues, like photography and

literature, have researched and developed blockchain databases

that enable anyone to find, use, and trade the works of art in an

authorized way.

371

Kodak recently partnered with WENN digital to

launch KODAKOne, an image rights management platform, and

KODAKCoin, a photo-centric cryptocurrency.

372

The two systems

use blockchain technology to create an encrypted, digital ledger of

photography ownership.

373

Photographers can use the systems to

albums. Spotify (Finally) Adds Songwriter and Producer Credits, VARIETY (Feb. 2,

2018), http://variety.com/2018/digital/news/spotify-adds-songwriter-and-producer-

credits-1202684818/ [https://perma.cc/BNZ5-TWPP].

367

See BARGFREDE, supra note 44, at 130.

368

Id.

369

See id.

370

See id.

371

See id.

372

See KODAK and WENN Digital Partner to Launch Major Blockchain Initiative and

Cryptocurrency, KODAK (Jan. 9, 2018), https://www.kodak.com/corp/press_center/

kodak_and_wenn_digital_partner_to_launch_major_blockchain_initiative_and_cryptocur

rency/default.htm [https://perma.cc/C5JZ-58N9].

373

See id.

240 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXIX:181

register new images or archive older works and license them

within the platform.

374

The technology is not unknown in the music industry.

Musicoin, the world’s first streaming blockchain that presents

itself as a “cross between SoundCloud and Bitcoin,” currently

operates more than 1,500 verified independent artists and labels.

375

Artists like Lupe Fiasco, Imogen Heap, and EDM producer

Gramatik currently view blockchain technology as a

revolutionizing force for musical artists and have explored the

technology as a source of income.

376

Organizations like the

American Society for Composers, Authors and Publishers

(ASCAP) and the Society of Authors, Composers and Publishers

of Music (SACEM) have teamed with IBM to prototype a shared

system of managing authoritative music copyright information

using blockchain technology.

377

In a blockchain ledger for music, songs would be registered

through tagging and storing the musical composition in a

database.

378

The service can provide a public record of ownership

and a means to directly track a work back to its author.

379

Additionally, blockchain networks have the capability of recording

374

See id.

375

The platform has attributed more than three-hundred thousand plays and artists

utilizing the platform have received more than four-hundred and twenty-thousand

monetary tips from their listeners. See Over 1,500 Verified Independent Musicians, Bands

and Labels Now Use Musicoin, M

USICOIN (Dec. 17, 2017),

https://medium.com/@musicoin/over-1500-verified-independent-musicians-bands-and-

labels-now-use-musicoin-a87cfb1f2b1f [https://perma.cc/W8K4-URZK].

376

See John Lynch, Rapper Lupe Fiasco Says Cryptocurrencies Are Like ‘Baseball

Cards,’ but that Blockchain Can ‘Revolutionize’ the Music Industry, B

USINESS INSIDER

(Feb. 23, 2018, 1:59 PM), http://www.businessinsider.com/lupe-fiasco-says-blockchain-

can-revolutionize-the-music-industry-2018-2 [https://perma.cc/2BHX-E7GP] (quoting

Lupe Fiasco) (“‘It’s a disagreement that I’ve always had with Spotify, which was, they’re

saying, you can never get rid of piracy. And that’s the reason we can charge .00000

nothing for a song, and completely devalue music, but then you have blockchain

technology coming around, where you say, ‘Ah, now we’re able to kind of reverse that

process,’ by implementing a blockchain strategy when it comes to licensing music.’”).

377

See ASCAP, SACEM, And PRS For Music Initiate Joint Blockchain Project To

Improve Data Accuracy For Rightsholders, ASCAP, https://www.ascap.com/press/

2017/04-07-ascap-sacem-prs-blockchain [https://perma.cc/J3RL-PXSW] (last visited

Apr. 25, 2018).

378

See BARGFREDE, supra note 44, at 130.

379

See id.

2018] CARE FOR A SAMPLE? 241

self-executing contracts between parties, known as “smart

contracts.”

380

After parties agree to certain terms, the smart

contract is automatically performed through the technology.

381

Therefore, controlling licenses through smart contracts

automatically enforces provisions like payment procedures and

royalties.

382

As discussed in Part III, it is currently difficult to simply

discover and locate the rights-holders within the music industry.

Allowing any composer or artist to register their own work in a

central place and accurately define those involved in the

production would simplify the process.

383

Spotify claimed that it

did not have the technology to maintain licensing data about every

artist on its platform.

384

The streaming service also admitted that it

could not locate copyright owners to acquire mechanical licenses

to use the artists’ work on its streaming service.

385

After being hit

with a $5 million penalty and settling a dispute with the National

Music Publishers Association (NMPA) for upwards of $20 million

for unpaid royalties, Spotify acquired a blockchain start-up

company called Mediachain Labs that can allow artists to claim

attribution rights and receive payments in cryptocurrency for their

contributions.

386

Mediachain Labs has stated that digital rights management

companies that utilize blockchain technology intend for their tools

to solve a problem of lost or unknown identities within

380

See id.

381

See id.

382

See id.

383

See Imogen Heap, Blockchain Could Help Musicians Make Money Again, HARV.

BUS. REV. (June 05, 2017), https://hbr.org/2017/06/blockchain-could-help-musicians-

make-money-again [https://perma.cc/53AV-UGUP] (“One of the biggest problems in the

industry right now is that there’s no verified global registry of music creatives and their

works.”).

384

See Ben Sisario, Spotify Reaches Settlement with Publishers in Licensing Dispute,

N.Y.

TIMES. (Mar. 17, 2016), https://www.nytimes.com/2016/03/18/business/media/

spotify-reaches-settlement-with-publishers-in-licensing-dispute.html?_r=0 [https://

perma.cc/M68H-7325].

385

See id.

386

See id.; Joseph Young, Spotify Acquires Blockchain-Based Startup to Tackle Fair

Royalty Issues, B

ITCOIN MAGAZINE (Apr. 29, 2017 9:33 AM)

https://bitcoinmagazine.com/articles/spotify-acquires-blockchain-based-startup-tackle-

fair-royalty-issues/ [https://perma.cc/DK46-NZ4X].

242 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXIX:181

copyright.

387

This could also aid the process of identifying

copyright owners for the sake of acquiring a license to sample a

musical composition.

388

Such a large system would likely need assistance from the U.S.

Copyright Office. Typically, ownership is established by referring

to a U.S. Copyright registration certificate,

389

but blockchain

technology would require an artist to register a work by time-

stamping a transaction to show ownership at a particular time.

By cutting out a middle man and lowering the barrier of access

within a common system, artists will be able to directly contact the

owners of a copyrighted work for licensing purposes. Artists who

wish to sample could proceed without the cost of hiring third

parties to locate and negotiate with copyright owners.

Imogen Heap, who has detailed her licensing experiences and

proposed various solutions in the Harvard Business Review,

founded the blockchain-based service Mycelia that provides her

more control over how her songs are circulated among fans and

other musicians.

390

Fans have been going directly to Heap through

Mycelia to purchase her music.

391

Artists are going directly to

Heap for licenses to stream, remix, or sample.

392

Heap believes

that blockchain “has the potential to get the music industry’s messy

house in order.”

393

Heap envisions a music industry where artists

own their own verified music creative platform that possess a

blockchain-enabled registry storing data like biographies, tour

dates, press images, charities, and song authorship information.

394

Heap’s Mycelia is also experimenting with a “Life of a Song”

exhibit that will launch as part of Heap’s “Mycelia World Tour”

387

See Sarah Perez, Spotify Acquires Blockchain Startup Mediachain to Solve Music’s

Attribution Problem, T

ECHCRUNCH, (Apr. 26, 2017), https://techcrunch.com/2017/04/26/

spotify-acquires-blockchain-startup-mediachain-to-solve-musics-attribution-problem/

[https://perma.cc/BC4A-HHR9].

388

See id.

389

See Records Research and Certification Services, U.S. COPYRIGHT OFFICE,

https://www.copyright.gov/rrc/ [https://perma.cc/D8RJ-EHQJ] (last visited Oct. 5, 2018).

390

See Heap, supra note 383.

391

See id.

392

See id.

393

See id.

394

See id.

2018] CARE FOR A SAMPLE? 243

and may inspire a streamlined world of music.

395

“Life of a Song”

will develop a “Hide and Seek” song biography in an interactive

system.

396

The exhibit will show “Hide and Seek’s” breakdown of

ownership rights and split percentages for all copyrightable

elements.

397

It will show each artist and contributor’s income from

the track, as well as the song’s overall worth in sales, streams, and

radio spins.

398

Viewers will also see “Hide and Seek’s” ownership

stakes and revenue from covers, remixes, and samples.

399

The

platform and its blockchain-enabled registry will give artists and

fans the ability to see how “Hide and Seek’s” legacy has

influenced and profited from Jason DeRulo’s “Whatcha Say.”

400

By exploring Heap’s use of new technology, all information

about the copyright life of a single song can be documented in one

interactive display of the complex, yet beautiful music industry.

Independent artists who wish to sample could have all that

information at the touch of a button without emptying their wallets

for third-party services. With less transactional costs and barriers

in the sample licensing system, more funds and effort can be

placed in negotiating for proper license and creating innovative

music. By finally organizing a complicated music licensing

system, blockchain “holds the potential to give us a golden age of

music not just for its listeners, but for those who make it, too.”

401

CONCLUSION

American percussionist and record producer Ahmir Thompson,

known professionally as Questlove, took to Instagram in

September 2016 to voice his displeasure with the current sample

395

Mycelia Life of a Song Website Project Brief, MYCELIA FOR MUSIC,

http://www.myceliaformusic.org/loas/LOAS-Brief.pdf [https://perma.cc/8UHN-LQWR]

(last visited Apr. 4, 2018).

396

See id.; Life of a Song, MYCELIA FOR MUSIC, http://myceliaformusic.org/life-of-a-

song/ [https://perma.cc/9SMA-TQYR] (last visited Apr. 4, 2018).

397

Mycelia Life of a Song Website Project Brief, supra note 395.

398

See id.

399

See id.

400

See id.

401

See Heap, supra note 383.

244 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. XXIX:181

licensing system.

402

After he described what he feels is “beautiful”

in hip-hop sampling, Thompson called out the corporate side of the

industry and stated that publishers and record labels have made

sampling “unobtainable and only an option for the rich.”

403

In

somewhat of a hyperbole, Thompson also wrote “let’s face it:

[Kanye West] & [Jay-Z are] the only cats who can afford samples

in hip-hop.”

404

Because sampling has been instilled in hip-hop’s culture since

its birth and it is now utilized routinely in other genres of popular

music,

405

it is problematic that only those with financial means can

capitalize on a form of creativity so heavily embraced in modern

music.

406

Only already-successful artists or artists who can obtain

large investments for their projects dictate the scope of creativity in

the music world.

407

New and independent artists wish to dictate the

bounds of sonic creativity as well, but the current system denies

them of that possibility.

The balance between creativity and copyright protection has

been a difficult task for the legal world to sort since Biz Markie

was recommended for criminal prosecution, and while courts have

ruled on whether to afford defenses to samplers, the decisions have

led many independent artists to play it safe and avoid the sampling

process.

408

Through legislative creativity and embracing the assistance of

coordination-enhancing technologies, the music industry can place

itself in a position where financial capabilities no longer define the

bounds of artistic creativity.

402

Questlove (@questlove), INSTAGRAM (Sept. 9, 2016), https://www.instagram.com/p/

BKIHA3ABvyd/ [https://perma.cc/QZA5-CT7G].

403

See id.

404

See id.

405

See generally LAPOLT & FOX, supra note 2.

406

See MCLEOD & DICOLA, supra note 1, at 173.

407

See id.

408

See generally Grand Upright Music, Ltd. v. Warner Bros. Records, 780 F. Supp. 182

(S.D.N.Y. 1991); see also supra notes 4–5 and accompanying text.