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Music sampling takes many forms, but for the purposes of this paper
assume that the samples are of modest length (1-5 seconds).
Sometimes an entire performance is "sampled", as part of a "remix", but
that is a separate case entirely.
Assume the sampling is taken from published recordings; ie the samples are not recreated in the studio.
The music industry line here is that any use of copyrighted material requires permission; this gives the rights-holder the opportunity to set a fee limited only by the law of supply and demand. Fair Use is the one exception to this, but is not recognized by the industry and there are few music-related legal cases. While clearly there is no effect whatsoever of modest-length sampling on the market for the original, there might be (and in fact is) a "secondary" market for sampling rights that is affected. The copyright law itself only refers (§107(4)) to "the effect of the use upon the potential market for or value of the copyrighted work". Some have tried to argue that this also includes the market value of any portion of the entire copyrighted work, though this is a stretch.
For a discussion as to why Fair Use sometimes seems to be avoided in music lawsuits, see Edward Lee's Fair Use Avoidance in Music Cases.
If you prefer to take an ethical approach, here are a few ideas you might wish to consider. When sampling, what exactly is your obligation to the original artist? Must the sample be some form of homage? If so, why? Is it simply a matter of acknowledging credit for the sample? Can the credit be implicit, or must the original artist's name be spelled out? What if the sampling is not about "homage" at all (as in the Schnauss v Guns 'n Roses case)? Are artists really entitled to royalties when their work is sampled? Is making money from someone else's work without compensation ever permissible? Does it matter if the use in question is of someone's voice, versus an instrumental segment? After all, the instrumental segment can in principle be reproduced by other musicians, but imitating someone else's voice can be impossible.
Here is one way to view the conflict:
If you do not accept the first point here entirely, explain why! What conditions might be necessary for Fair Use to apply? Must there be some sort of "transformative" use? Is sampling fundamentally a "productive" use, ie use that is associated with some benefit to society? Or is it a "consumptive", or even parasitic, use? Does it matter if the sample is recognizable? Not recognizable? When considering the effect on the market, should the secondary market for sampling rights count, or just the market for the original work? As for the second point, what are appropriate limits for profiting from someone else's work?
An alternative argument is that, at least for singing, a person has a right to control the use of their own voice. You can also apply that to instrumental music, though maybe the argument is less compelling.Chuck D, of Public Enemy, has claimed that "sampling [in hip-hop] basically comes from the fact that rap music is not music. It's rap over music" (http://www.stayfreemagazine.org/archives/20/public_enemy.html) Does this matter?
The Supreme Court decided the case of Andy Warhol Foundation v Lynn Goldsmith on May 18, 2023. Warhol had taken a black-and-white photo of Prince, modified it, and distributed it.
Artist Richard Prince similarly took photographs by Patrick Cariou, modified them, and sold them for five-figure sums. The case was decided in Richard Prince's favor in 2013 by the Second Circuit. The decision is at https://law.justia.com/cases/federal/appellate-courts/ca2/11-1197/11-1197-2013-04-25.html.
In light of the Goldsmith case, do you think Cariou v Prince would be decided the same way today?
Some examples of Richard Prince's work are here:
As with Andy Warhol, Richard Prince took some photographic images taken by someone else and modified them.
The argument by the defense in both cases was that the use was Fair Use; that the new work was transformative of the original. To a degree, this is the case. But Justice Sotomayor's opinion states
AWF contends that the Prince Series works are “transformative,” and that the first fair use factor thus weighs in AWF’s favor, because the works works convey a different meaning or message than the photograph. But the first fair use factor instead focuses on whether an allegedly infringing use has a further purpose or different character, which is a matter of degree, and the degree of difference must be weighed against other considerations, like commercialism.
In part, the court notes that
transformative use is a matter of degree. But, more seriously, the
court says that transformative use is not necessarily something that
"convey[s] a different meaning or message"; rather, it must have a
"further purpose or a different character". It can be hard to
distinguish, however, between "different meaning" and "different
character". But, that said, there has been a long debate as to
whether "transformative" use can mean any different use, or whether
the new use has to have a new purpose.
Arguably, Andy Warhol's "purpose" was to create an illustration of [non-Richard] Prince. It is stylistically different, but arguably serves the same purpose of depicting Prince. Compare the purpose of the group that shared the Diebold voting-machines documents: their purpose was to expose flaw in these voting machines, not to further the creation of competing voting machines. Or the Google v P10 case, in which the new purpose was to enable [image] search, not to compete with the originals.
Past lower-court decisions have varied as to whether, to be transformative, a use could simply involve a different meaning, or whether the use had to be for a different purpose. The AWF v Goldsmith case seems to suggest that having a "different purpose" is an important consideration.
There's another element to the
"purpose" discussion. It's hard to tell how important this was, but
the decision does point out that the "purpose of AWF’s recent commercial licensing of Orange Prince
was to illustrate a magazine about Prince with a portrait of
Prince"; that is, the purpose was to provide an illustration, not to
be artistic. Richard Prince's images (which were not licensed to
third parties) were always intended to be works of art.
One way to view the question, then, for this paper is, with the new definition of "transformative use" as use that has a new purpose, whether Richard Prince's works qualify.
Alternatively, you can look more at
the fourth factor: the effect on the market. Goldsmith had lost some
commercial licensing to the Warhol print (though my guess is that
licensing the Warhol version was actually more expensive). Did
Patrick Cariou lose sales?
There is some discussion of Cariou v
Prince in my notes at pld.cs.luc.edu/courses/ethics/sum23/mnotes/copyright_laws.html#cariou.
Your paper will be graded primarily on the following: