Envisioning a Compulsory-Licensing System for Digital Samples through Emergent Technologies

By Sabbagh, Christopher R. | Duke Law Journal, October 2019 | Go to article overview

Envisioning a Compulsory-Licensing System for Digital Samples through Emergent Technologies


Sabbagh, Christopher R., Duke Law Journal


Abstract

Despite the rapid development of modern creative culture, federal copyright law has remained largely stable, steeped in decades of tradition and history. For the most part, copyright finds strength in its stability, surviving the rise of recorded music, software programs, and, perhaps the most disruptive technology of our generation, the internet.

On the other hand, copyright's resistance to change can be detrimental, as with digital sampling. Although sampling can be a highly creative practice, and although copyright purports to promote creativity, current copyright law often interferes with the practice of sampling. The result is a largely broken system: Those who can legally sample are usually able to do so because they are wealthy, influential, or both. Those who cannot legally sample often sample illegally.

Many scholars have suggested statutory solutions to this problem. Arguably, the most workable solutions are rooted in compulsory licenses. Unfortunately, implementing these solutions is practically difficult.

Two recent developments invite us to revisit these proposals. First, with the passage of the Music Modernization Act ("MMA"), Congress has evinced a willingness to "modernize" parts of copyright law. Second, emergent technologies--from the MMA's musical-works database to blockchain to smart contracts--can be leveraged to more easily implement a compulsory-licensing solution. This time around, rather than simply discuss why this solution is favorable, this Note will focus on how it can be implemented.

INTRODUCTION

"Why must I feel like that? Why must I chase the cat?" (1)

On a late night in January 1982, George Clinton stumbled into a Detroit studio, (2) escaping the winter cold. (3) Clinton was "feeling pretty good" after a night of partying, so he careened over to the studio's recording microphone to translate his energy into music. (4) While songwriters David Spradley and Garry Shider physically supported Clinton, shifting back and forth to keep him steady in front of the microphone, (5) Clinton rattled off lyrics and adlibs, including the now famous line, "[b]ow wow wow, yippie yo, yippie yea," creating what would become the funk classic "Atomic Dog." (6)

Clinton's "Atomic Dog" inspired generations of musicians. Its influence united even the most disparate artists, appearing as a "sample" in songs by west-coast hip-hop legend Tupac Shakur (7) and east-coast rap powerhouse The Notorious B.I.G. (8) While Clinton's record "didn't go gold, ... it has since helped a lot of other artists go platinum." (9) "Atomic Dog" is a story of cultural influence; the reach of Clinton's song extends far beyond the song itself.

Sampling--the practice of taking part of a recording, potentially altering it in some way, and using it in a new recording (10)--is foundational for many genres of music, primarily hip-hop and rhythm and blues. (11) But why do artists sample tracks like "Atomic Dog"? Many of these musicians instinctually "chase the cat," looking for the perfect sample to supplement their melodic or lyrical content. (12) Some of hip-hop's most famous songs were created by artists who spent hours digging through record stores, looking for forgotten songs to bring back to life. (13)

Other artists use samples to communicate thoughts and emotions in a way that a strictly original composition cannot. Kanye West's "Gold Digger," (14) for example, would arguably not have had the same cultural impact without Ray Charles's iconic voice interjecting, "[s]he gives me money when I'm in need." (15) Similarly, Selena Gomez's "Bad Liar" (16) would likely not produce the same unsettling feeling without the Talking Heads's eerie bass line thumping throughout the song. (17) Ultimately, these incentives ushered a new art form into the forefront of American music.

By the late 1980s, sampling had permeated popular genres, like hip-hop, and forced itself into the public discourse. …

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