Digital Sampling V. Appropriation Art: Why Is One Stealing and the Other Fair Use? A Proposal for a Code of Best Practices in Fair Use for Digital Music Sampling

By Eckhause, Melissa | Missouri Law Review, Spring 2019 | Go to article overview

Digital Sampling V. Appropriation Art: Why Is One Stealing and the Other Fair Use? A Proposal for a Code of Best Practices in Fair Use for Digital Music Sampling


Eckhause, Melissa, Missouri Law Review


"It ain't hard to tell, I'm the new Jean Michel, Surrounded by  Warhols... I'm the modern day Pablo, Picasso baby."--Jay-Z (1) 

INTRODUCTION

"Thou shalt not steal"--so began the court opinion that effectively ended unauthorized digital sampling in the music industry. (2) Since then, digital music sampling has been referred to as theft, (3) pirating, (4) and copyright infringement. (5) Even when artists sample two seconds of a song, courts admonish them, "Get a license or do not sample." (6) Yet, somehow, "thou shalt not steal" does not apply in the visual arts world. Instead when visual artists sample whole photographs, courts label it appropriation art, collage, and fair use. (7)

This Article examines the disparate treatment of music and visual arts sampling under copyright law. Not only does this Article argue that the more liberal fair use principles adopted in recent visual arts cases should be applied to digital music sampling, (8) but it also sets forth a preliminary Code of Best Practices in Fair Use for Digital Music Sampling ("Digital Music Sampling Code"). (9) Part I of this Article begins by tracing the long history of both musicians and visual artists sampling other artists' works by incorporating them into new pieces, often without permission from the original artists. This Article shows that both digital music sampling and appropriation art are forms of the artistic tradition of collage, and as artistically analogous acts, they deserve to be treated alike under copyright law.

Part 11 gives a brief overview of the copyright law principles that apply to sampling. Part III then reviews the leading digital sampling and appropriation art cases. (10) Starting with Blanch v. Koons, (11) the path of music and visual arts collage cases began to diverge and the courts in visual arts cases started embracing transformative works as fair use. While Blanch led to a resurgence of fair use in visual arts cases, such as Cariou v. Prince (12) and Seltzer v. Green Day, Inc., (13) the defense of fair use all but disappeared in music cases for many years. Moreover, the decision in Bridgeport Music, Inc. v. Dimension Films (14) seemingly eviscerated music sampling's de minimis defense. As one legal commentator noted, "the rulings on digital sampling effectively have foreclosed the ability to quote music at all." (15) However, several cases have emerged in recent years that support the unlicensed use of digital music samples under either the de minimis or fair use doctrines. For example, in VMG Salsoul, LLC v. Ciccone, (16) the U.S. Court of Appeals for the Ninth Circuit specifically rejected the decision in Bridgeport, thereby setting up a circuit split that has yet to be resolved.

Despite the recent case law developments supporting unlicensed digital sampling, the music industry remains stuck in a clearance culture that requires all samples to be licensed. Many legal and music commentators have recognized this problem and proposed solutions. The proposals for reform, however, have focused on either adopting a compulsory licensing system or amending the Copyright Act to expressly address digital sampling. (17) Attempts to implement these solutions have repeatedly failed. Therefore, this Article suggests a different approach.

Part IV proposes the adoption of a Digital Music Sampling Code. This code would be similar to the codes of best practices for fair use adopted in other creative industries. In particular, given the analogy between appropriation art and digital music sampling, this code would borrow heavily from the Code of Best Practices in Fair Use for the Visual Arts ("Visual Arts Code") promulgated by the College Art Association ("CAA") under the guidance of Peter Jaszi and Patricia Aufdcrheide. (18)

As the first step towards creating a fair use code for digital music sampling and as part of the research for this Article, the author conducted an anonymous online survey ("Survey") of professionals in the music industry in the United States from all musical genres and backgrounds. …

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