HOW TO GET AWAY WITH COPYRIGHT INFRINGEMENT: MUSIC

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101

NOTE

HOW TO GET AWAY WITH COPYRIGHT

INFRINGEMENT: MUSIC SAMPLING AS FAIR USE

SAM CLAFLIN

CONTENTS

I. INTRODUCTION ............................................................................................ 102

II. BACKGROUND ............................................................................................ 104

A. History ............................................................................................ 104

i. Foundations of Copyright Law with Respect to Music ............ 104

ii. Music Sampling and Copyright ............................................... 105

B. The Fair Use Doctrine .................................................................... 107

i. Fair Use and Appropriation Art ................................................ 110

III. A CONTEMPORARY PERSPECTIVE ON MUSIC SAMPLING AND FAIR USE:

ESTATE OF SMITH V. CASH MONEY RECORDS, INC. ................................ 113

A. Background ..................................................................................... 113

B. Analysis – An In-Depth Look at the Court’s Fair Use

Approach in Estate of Smith ........................................................ 114

i. Factor One .............................................................................. 115

ii. Factor Two ............................................................................. 118

iii. Factor Three ........................................................................... 118

iv. Factor Four ............................................................................. 119

IV. MODEL APPLICATION OF FAIR USE FOR MUSIC SAMPLING CASES ........... 120

A. Factor One: Purpose and Character of the Use ............................. 122

B. Factor Two: Nature of the Copyrighted Work ................................ 123

C. Factor Three: Amount and Substantiality of the Portion Used ...... 123

D. Factor Four: Effect on the Market ................................................. 124

CONCLUSION ................................................................................................... 129

I thank Professor Wendy J. Gordon for her immense help with this Note. She played an

invaluable role in its development and execution, from start to finish.

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I. INTRODUCTION

Music sampling is integral to the genres of hip hop and electronic music. Hip

hop and electronic musicians make their art, in part, by repurposing excerpts of

other artists’ music.

Musicians who employ sampling are presently required to

obtain consensual licenses for each use of a pre-existing song and to pay all the

fees associated with licensing.

The present state of the law has thus created a

significant barrier to entry and exorbitant creation cost for musicians making

sample-based music.

This is especially true because sampling can implicate

both musical work and sound recording copyrights, meaning that an artist may

need to obtain two licenses to legally use a sample.

Further, the more affordable

compulsory licensing framework that applies to cover songs does not govern

sampling.

The availability of compulsory licenses for cover songs encourages

reusing entire melodies, but the unavailability of compulsory licenses for

sampling discourages reusing only partial melodies and sound snippets from

existing songs. One should question why an artist can obtain a compulsory

license to reuse an entire melody, but cannot obtain a compulsory license to

reuse only part of a melody or select sounds from an existing recording.

Basic

fairness should ensure no musician faces disproportionate barriers from

untold number of fledgling sample-based musicians cannot release their art

See, e.g., Rebecca Haithcoat, Top 10 EDM/Rap Collaborations of All Time, BILLBOARD

(Aug. 15, 2014), https://www.billboard.com/articles/columns/the-juice/6221465/top-10-

edmrap-collaborations-of-all-time [https://perma.cc/WF7Z-ABD3]; see also Digital Music

Sampling: Creativity or Criminality?, NPR (Jan. 28, 2011, 1:00 PM),

https://www.npr.org/2011/01/28/133306353/Digital-Music-Sampling-Creativity-Or-

Criminality [https://perma.cc/E5AG-2LMK].

See Alex Holz, How You Can Clear Cover Songs, Samples, and Handle Public Domain

Works, ASCAP (Jan. 26, 2011),

https://www.ascap.com/playback/2011/01/features/limelight.aspx.

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/#60efcbc64e18 [https://perma.cc/4EV7-GEFE].

Holz, supra note 3. But see VMG Salsoul, LLC v. Ciccone, 824 F.3d 871, 874 (9th Cir.

2016).

By “cover songs” I refer to the practice of “[r]ecord[ing] or perform[ing] a new version

of (a song) originally performed by someone else.” Cover, LEXICO.COM,

https://www.lexico.com/en/definition/cover [https://perma.cc/8W5V-BCTP].

Professor Gordon was instrumental in helping me articulate this idea. See Robert M.

Vrana, Note, The Remix Artist’s Catch-22: A Proposal for Compulsory Licensing for

Transformative, Sampling-Based Music, 68 WASH. & LEE L. REV. 811, 828-30 (2011). Using

a sample and performing a cover are arguably quite similar from a use-of-intellectual-property

standpoint. Nonetheless, the Copyright Act of 1976 carves out a special mechanical-licensing

framework for covers that does not apply to samples. See id.

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without paying licensing fees that only more-established artists can afford.

Clearing a single sample can cost hundreds of thousands of dollars.

Losing a

considerably more.

Thankfully, the Copyright Act of 1976 (the “Act”)

already provides a

solution for sample-based music, albeit one that has been woefully

underutilized. The fair use exception laid out in § 107 of the Act applies to

transformative, socially valuable second uses, and music sampling often seems

to be an appropriate example of such use.

Yet, despite sampling being an

ostensibly suitable fair use candidate, litigants and courts have been reluctant to

embrace sampling as fair use.

In 2017, the U.S. District Court for the Southern

District of New York became the first court to rule in a defendant’s favor on a

non-parody fair use defense in the music sampling context.

This Note will describe why more courts could, and should, embrace music

sampling as a fair use of copyrighted material in the context of both sound

recordings and musical works, for which the fair use analyses should be nearly

identical.

Music sampling is a prime candidate for fair use in many instances,

based on both the language of § 107 and fair use jurisprudence.

Moreover, a

fair use exception for music sampling would not detract from the constitutional

goals of U.S. copyright law. On the contrary, such an exception would serve to

“promote the Progress of Science and useful Arts”

by allowing more musicians

to create and share their art. In advancing these arguments, I draw comparisons

between fair use in the music-sampling context and the visual-art context—

See id. at 849-50.

See Ness, supra note 4.

See Peter Relic, The 25 Most Notorious Uncleared Samples in Rap History, COMPLEX

(Apr. 22, 2013), http://www.complex.com/music/2013/04/the-25-most-notorious-uncleared-

samples-in-rap-history/ [https://perma.cc/WAY8-GK89].

For further discussion of the Copyright Act and a discussion of the fair use doctrine, see

infra Part II.

17 U.S.C. § 107 (2012); see generally Wendy J. Gordon, Fair Use as Market Failure:

A Structural and Economic Analysis of the Betamax Case and Its Predecessors, 82 COLUM.

L. REV. 1600, 1602-03 (1982).

Importantly though, no case has expressly foreclosed the possibility that music sampling

may fall under fair use. Even in Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th

Cir. 2005), in which Judge Guy issued his famous get-a-license-or-do-not-sample edict, the

court’s rejection of a de minimis exception expressly left the door open for a fair use

argument. Id. at 801-02.

See Estate of Smith v. Cash Money Records, Inc., 253 F. Supp. 3d 737, 749-52

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

See infra Part IV.

See id.

U.S. CONST. art. I, § 8, cl. 8.

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where courts have been more accepting of creative borrowing as fair use.

Specifically, I compare music sampling to visual appropriation art.

Part II provides a basic introduction to copyright law with respect to music,

the fair use doctrine, and the practices of music sampling and appropriation art,

the knowledge of which is fundamental to understanding Parts III-V.

Part III

analyzes a 2017 case that embraced music sampling as a fair use of copyrighted

material.

Part IV provides a general, model approach to applying the fair use

doctrine in music-sampling cases, drawing on Parts I-III.

Finally, Part V

concludes by summarizing Parts I-IV, circling back to some of the policy

arguments that make this topic so important.

II. BACKGROUND

To understand why music sampling should often constitute fair use, one must

first understand the fundamentals of copyright law, the historical relationship

between copyright law and music sampling, and the basics of the fair use

doctrine—including fair use’s application to creative borrowing in other

contexts. These subjects form the proper analytical framework for applying the

fair use doctrine to music sampling.

A. History

i. Foundations of Copyright Law with Respect to Music

The United States Constitution, Article I, Section 8, Clause 8 “empowers

Congress to legislate copyright and patent statutes.”

The aim of this clause,

known as the Copyright Clause, is to incentivize authors to create by granting

authors limited “monopoly right[s]” over their creations.

The underlying goal

of this incentive scheme is explicit in the Copyright Clause, namely, to “promote

the Progress of Science and the useful Arts.”

Over time the common law

fleshed out the requirements for copyright protection, and now the threshold

requirements for copyrightability are spelled out in § 102(a) of the Act:

“Copyright protection subsists, in accordance with this title, in original works of

authorship fixed in any tangible medium of expression, now known or later

developed, from which they can be perceived, reproduced, or otherwise

communicated, either directly or with the aid of a machine or device.”

See, e.g., Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013); Blanch v. Koons, 467 F.3d 244

(2d Cir. 2006).

See infra Part II.

See infra Part III.

See infra Part IV.

See infra Part V.

MARSHALL A. LEAFFER, UNDERSTANDING COPYRIGHT LAW 6 (6th ed. 2014).

Id.

U.S. CONST. art. I, § 8, cl. 8.

17 U.S.C. § 102(a) (2012).

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As far as the music industry is concerned, there are two main forms of

copyrightable subject matter: musical works and sound recordings.

A musical

work includes “both the words of a song and its instrumental component,” and

might be fixed, for instance, in the medium of “musical notation written on

paper.”

A sound recording, on the other hand “is a captured performance,” and

might be fixed, for example, in a phonorecord or digital audio file.

In the music

context, any medium in which a sound recording is embodied will most often

contain that sound recording’s underlying musical work as well.

In other

words, when a consumer listens to her favorite song via a digital audio file, both

a sound recording copyright and its underlying musical work copyright are fixed

in that digital audio file.

“[T]he owner of a sound recording copyright enjoys different exclusive rights

than the copyright owner of the musical . . . work captured in the sound

recording.”

Specifically, “the copyright owner of a sound recording may not

control its performance, while the copyright owner of a . . . musical . . . work

enjoys a full performance right.”

This Note focuses on two exclusive rights

to reproduce the copyrighted work in copies or phonorecords,” and “(2) to

prepare derivative works based upon the copyrighted work.”

The former is

self-explanatory, but the phrase “derivative work” is a term of art. The Act

defines “derivative work” as “a work based upon one or more preexisting works,

such as a . . . musical arrangement, . . . sound recording, art reproduction,

abridgment, condensation, or any other form in which a work may be recast,

transformed, or adapted.”

The discussion of music sampling and copyright law

that follows draws on the above concepts, terminology, and aims of the

ii. Music Sampling and Copyright

Music sampling has been defined as mechanically or digitally using “a portion

of a previous sound recording in a new recording.”

Importantly, sampling also

encompasses copying sound in order to use the lyrics or pattern of notes from an

underlying musical work.

In this Note, “sampling” refers to both of these

See LEAFFER, supra note 23, at 141-44.

Id. at 141.

Id. at 142.

See id.

Id.

Id. (citing 17 U.S.C. § 114 (2012)).

17 U.S.C. § 106 (2012).

Id. § 101.

Robert M. Szymanski, Audio Pastiche: Digital Sampling, Intermediate Copying, Fair

Use, 3 UCLA ENT. L. REV. 271, 275 (1996) (quoting Robert G. Sugarman & Joseph P.

Salvo, Whose Rights? Sampling Gives Law a New Mix, NAT’L L.J., Nov. 11, 1991, at 21).

Professor Gordon was instrumental in helping me articulate this thought in this way.

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approaches.

The used portion of existing copyrighted material, called a

“‘sample,’ is generally short, ranging from less than one second to

approximately twenty-five seconds.”

Sampling empowers “artists to isolate

. . . specific aspects, and even particular instruments, [from] an existing musical

recording.”

Once extracted, an artist can “alter” a sample’s “sonic

characteristics” by, for example, changing its pitch or tempo, or putting it on a

continuous loop.

The artist can then “cut and paste” the sample into a new song

in which the sample may function like an instrument.

As one popular example,

consider Avicii’s 2011 hit “Levels,” which incorporates a vocal sample from

Etta James’s 1962 single, “Something’s Got a Hold on Me.”

Sampling can “reduce studio and musician costs, and it can relieve the

pressure placed on producers and sound engineers to achieve the ‘right’

sound.”

That much is true if the artist can afford a license. Because sampling

amounts to literal copying of a sound recording, and by extension, at least in the

music context, often amounts to literal copying of a musical work, sample-based

musicians have faced intellectual-property challenges since sampling’s

inception.

One view, exemplified by the Sixth Circuit, is that sampling is clear-

cut infringement of a copyright holder’s reproduction and derivative work rights,

leaving a sample-based musician with no real choice but to clear a sample

through licensing.

In the Ninth Circuit, however, courts have recognized at least one limited safe

haven for sample-based musicians. In Newton v. Diamond, the United States

Court of Appeals for the Ninth Circuit held that a de minimis exception applies

to claims of infringement of a copyrighted musical work.

In that case, the

defendants, the Beastie Boys, had sampled a three-note flute sequence for which

they obtained a license in the sound recording but not the underlying musical

Note that not all sound recordings that a musician might sample contain underlying

musical works. For instance, a musician might sample a sound recording of animal

vocalizations recorded in nature. Such a recording may not contain an underlying

composition. For purposes of this Note, I refer to the digital sampling of “songs,” i.e., sound

recordings of popular songs, which do contain underlying musical works.

Szymanski, supra note 35, at 276 (citing E. Scott Johnson, Note, Protecting Distinctive

Sounds: The Challenge of Digital Sampling, 2 J.L. & TECH. 273, 274 (1987)).

Id. (alteration in original).

Id.

Id. at 277.

See Avicii’s ‘Levels’ Sample of Etta James’s ‘Something’s Got a Hold on Me,’ WHO

SAMPLED, https://www.whosampled.com/sample/111866/Avicii-Levels-Etta-James-

Something%27s-Got-a-Hold-on-Me/ [https://perma.cc/F4UG-48V9].

Szymanski, supra note 35, at 276 (citing Johnson, supra note 38, at 275).

See VMG Salsoul, LLC v. Ciccone, 824 F.3d 871, 877 (9th Cir. 2016); see also

Szymanski, supra note 35, at 273.

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

2005).

Newton v. Diamond, 388 F.3d 1189, 1193 (9th Cir. 2004).

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work.

Thus, the case concerned alleged infringement of the musical work

The court reasoned that “if the average audience would not

recognize the appropriation” because it is “meager and fragmentary,”

repurposing of a musical work via sampling can be de minimis, and therefore

non-infringing.

In 2016, the same court held that the de minimis exception also

applies to claims of infringement of a copyrighted sound recording.

A finding of de minimis copying appears to be the only way to absolve an

artist who has not obtained the necessary license(s) prior to sampling, and the de

minimis exception remains unavailable in the Sixth Circuit, as noted above.

But litigants and the courts have neglected an entire section of the Act. Whether

the fair use doctrine could similarly absolve sample-based artists remains a more

open question.

B. The Fair Use Doctrine

Section 107 of the Act provides that certain “fair” uses of copyrighted

material are “not an infringement of copyright.”

In addition to providing a

short, non-exhaustive list of purposes that indicate a use may be “fair,” Congress

included four factors for courts and the public to consider.

In numerical order,

the four factors are: (1) the purpose and character of the use, including its

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

substantiality of the portion used relative to the copyrighted work; and (4) the

use’s effect on the potential market for or value of the copyrighted work.

The

Supreme Court has indicated that no single factor is dispositive, and has

generally avoided assumption in the fair use context — this is to say that fair use

categorically entails a very fact-specific inquiry.

The first factor inquiry asks whether the new work “adds something new, with

a further purpose or different character, altering the first with new expression,

meaning, or message; it asks, in other words, whether and to what extent the new

work is ‘transformative.’”

Since its appearance in Campbell v. Acuff-Rose

Music, Inc., the transformative use doctrine “has come to dominate fair use

Id. at 1190.

See id.

Salsoul, 824 F.3d at 878 (describing the court’s earlier application of the de minimis

exception in Newton, 388 F.3d at 1193).

Salsoul, 824 F.3d at 887.

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

17 U.S.C. § 107 (2012).

Id.

See, e.g., Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994).

Id. at 579 (emphasis added).

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jurisprudence.”

Paradigmatic examples of transformative use in the major fair

use cases include the parodic alteration of lyrics from a famous romantic

ballad,

and the reprinting, in reduced size, of old Grateful Dead concert posters

in a book about the Grateful Dead.

The other prong of the first factor inquiry is commerciality.

If a work is

commercial, that commerciality cuts against fair use.

However, courts

“generally give[] little substantive weight” to commerciality—in fact, the “bulk

of decisions finding fair use have involved commercial, rather than

noncommercial, uses.”

As transformativeness increases, “the less will be the

significance of other factors, like commercialism, that may weigh against a

finding of fair use.”

Transformativeness truly is paramount.

Factor two “directs attention to the nature of the copyrighted work.”

The

second factor “generally recognizes a greater need to disseminate factual works

than works of fiction or fantasy.”

Music is at the core of copyrightable subject

matter, meaning factor two will almost invariably cut against the defendant in

cases concerning the defendant’s use of the plaintiff’s music.

The third factor “directs us to examine the amount and substantiality of the

portion used in relation to the copyrighted work as a whole.”

Under factor

three, copying may not be excused simply because it is insubstantial with respect

to the would-be infringing work; “as Judge Learned Hand cogently remarked,

‘no plagiarist can excuse the wrong by showing how much of his work he did

not pirate.’”

Though section 107 ‘directs a comparison between the amount

taken and the copyrighted work as a whole,’ courts sometimes do apply factor

three to examine the portion used relative to the overall size of the accused’s

work.

Because factor three concerns the amount and substantiality of the

portion used, it is necessarily a highly fact-specific inquiry.

PAUL GOLDSTEIN, GOLDSTEIN ON COPYRIGHT § 12.2.2, at 12:33 (3d ed. 2005 & Supp.

2019).

Campbell, 510 U.S. at 569-71.

Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 607 (2d Cir. 2006).

17 U.S.C. § 107 (2012).

See Campbell, 510 U.S. at 579.

GOLDSTEIN, supra note 57, at 12:28.

Campbell, 510 U.S. at 579.

Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 563 (1985).

Id.

Campbell, 510 U.S. at 586.

Harper & Row, 471 U.S. at 564.

Id. at 565.

GOLDSTEIN, supra note 57, at 12:55 (citing Harper & Row, 471 U.S. at 565-66)

(emphasis added).

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Factor four “take[s] account not only of [market] harm to the original but also

of harm to the market for derivative works.”

One method courts use to assess

market effect is to ask if the contested use is complementary to the protected

work, which is more likely to be fair use, as opposed to a market substitute for

the protected work, which is less likely to be fair use.

An empirical study of

courts’ practical approaches to the fourth factor concludes that “courts have very

rarely made specific factual findings under the factor. Instead, the vast majority

of the opinions simply conducted what amounted to little more than an

unstructured and conclusory rule-of-reason analysis.”

The Supreme Court has stated that factors one and four are the most integral

to fair use analysis, weighing more heavily than factors two or three.

Professor

Barton Beebe determined that “of the 141 [analyzed] opinions that found that

factor four disfavored fair use, 140 found no fair use.”

Another important

aspect of the fair use defense is that “courts have consistently treated fair use as

an affirmative defense,” which puts the burden of establishing fair use on the

alleged infringer.

Additionally, courts remain mindful of policy concerns in

applying the four factors, and fair use can excuse an otherwise-infringing use if

the “social benefit” outweighs the loss to the copyright owner

and if some other

circumstance, such as market failure, is present.

With respect to music sampling, the Act could be read to suggest that courts

would be hostile to a fair use defense in all jurisdictions, at least regarding sound

recording copyrights. Section 114 leaves the sound-alike, or “replay”

avenue

available to musicians who might otherwise choose to sample a sound

recording.

In other words, an artist who wishes to sample a snippet of a song

Campbell, 510 U.S. at 590 (alteration in original) (quoting Harper & Row, 471 U.S. at

568).

Kienitz v. Sconnie Nation LLC, 766 F.3d 756, 758 (7th Cir. 2014) (citing Ty, Inc. v.

Publ’ns Int’l Ltd., 292 F.3d 512, 518 (7th Cir. 2002)).

Barton Beebe, An Empirical Study of U.S. Copyright Fair Use Opinions, 1978-2005,

156 U. PA. L. REV. 549, 618 (2008).

See, e.g., Campbell, 510 U.S. at 579 (stating that works deemed transformative under

factor one “lie at the heart of the fair use doctrine’s guarantee of breathing space within the

confines of copyright”); Harper & Row, 471 U.S. at 566 (“Th[e] last factor is undoubtedly

the single most important element of fair use”); see also Beebe, supra note 72, at 584.

Beebe, supra note 72, at 617 (alteration in original).

GOLDSTEIN, supra note 57, at 12:8.

Id. at 12:5.

See Gordon, supra note 12, at 1615.

See Computer Music, 11 Golden Rules if You Want to Replay a Sample, MUSICRADAR

(July 20, 2017), https://www.musicradar.com/tuition/tech/11-sample-replay-tips-555535

[https://perma.cc/V8YA-C8YJ] (“‘[R]eplays’ are essentially super-accurate cover versions

that are practically indistinguishable from the real thing”).

17 U.S.C. § 114(b) (2012) (“The exclusive rights of the owner of copyright in a sound

recording . . . do not extend to the making or duplication of another sound recording that

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can instead replay that snippet herself, or hire a session musician to do so,

without any risk of infringing on the sound recording copyright for that song.

Thus, when a defendant raises a fair use defense to justify her sampling, and the

court asks as part of its fair use analysis, “Did the Defendant need to do what

she did to achieve her goal/purpose?,” the answer would appear to be, “No,”

cutting against fair use.

That example is specific to sound recordings because

§ 114 does not apply to musical works.

If the musical work is the copyright at

issue, and the court asks the same question regarding the defendant’s alternatives

to sampling in order to accomplish her goal, the answer is no longer a clear “No.”

Any recreation of a copyrighted pattern of notes or lyrics that is sufficiently

similar to the original appears infringing of that musical work copyright,

regardless of whether the recreation occurred via digital sampling or any other

means.

In the sound recording-replay example, though, the sampling musician

ostensibly has an easy non-infringing alternative to accomplish her artistic

vision, namely, the replay or sound-alike.

This seems to suggest that it is more

difficult to prevail on a fair use defense for a sound recording than a musical

work. However, this Note goes on to refute the argument that the Act suggests a

general hostility toward sampling as fair use with respect to sound recordings.

To provide further examples of how courts have applied fair use analysis to

subject matter closely related to music sampling, and similarly involving

creative borrowing, I now turn to notable fair use cases involving the visual arts

technique known as appropriation art.

i. Fair Use and Appropriation Art

Having discussed the four factors of fair use in detail, let us now consider an

artistic parallel to music sampling in visual art, which courts have deemed on

more than one occasion to be fair use.

In visual art terms, appropriation art is

“the intentional borrowing, copying, and alteration of existing images and

objects.”

One might consider collage, “an abstract form of art in which

photographs, pieces of paper, newspaper cuttings, string, etc. are placed in

consists entirely of an independent fixation of other sounds, even though such sounds imitate

or simulate those in the copyrighted sound recording”).

See Holz, supra note 3; see also MUSICRADAR, supra note 78.

See, e.g., Walt Disney Prods. v. Air Pirates, 581 F.2d 751, 758 (9th Cir. 1978).

17 U.S.C. § 114 (titled “Scope of exclusive rights in sound recordings”) (emphasis

added).

See 17 U.S.C. § 106 (2012). But see infra Section III.B.

See Holz, supra note 3; see also MUSICRADAR, supra note 78.

See infra Part IV.

See infra text accompanying notes 92-103.

Pop Art: Appropriation, MOMALEARNING,

https://www.moma.org/learn/moma_learning/themes/pop-art/appropriation/

[https://perma.cc/3ZAB-E7WD].

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juxtaposition and glued to the pictorial surface,”

the archetypal work of

appropriation art. Appropriation art is an important and well-respected style of

art, counting Andy Warhol, Roy Lichtenstein, and Robert Rauschenberg among

its more famous practitioners.

What appropriation art does with physical objects and images is analogous to

what music sampling does with music and sound. Both involve intentional

appropriation in an artistic medium and aim to create socially valuable

secondary uses. One commentator on the Beastie Boys’ influential hip hop

record, Paul’s Boutique, opined that the album is “universally recognized as a

landmark achievement, a masterpiece of rhyme and collage that changes in

sampling law had insured could never be repeated.”

While critics might

attempt to distinguish between musical appropriation and visual appropriation

for purposes of fair use, one would be hard-pressed to articulate a principled

distinction. Because courts have regarded certain instances of appropriation art

as fair use,

so too should courts regard certain acts of music sampling as fair

use. For fair use purposes, there is no principled distinction between the two.

Cariou v. Prince remains perhaps the most well-known, influential, and

controversial case of appropriation art in copyright law.

In Cariou, artist

Richard Prince “altered and incorporated several of [Patrick] Cariou’s . . .

photographs into a series of paintings and collages.”

Prince never sought

permission to use Cariou’s photographs.

The court reasoned through each of

the four fair use factors, but repeatedly emphasized the first-factor

transformativeness inquiry and its influence on the remaining factors.

Summarizing its central conclusion, the court stated that while “Prince used key

portions of certain of Cariou’s photographs . . . we determine that in twenty-five

of his artworks, Prince transformed those photographs into something new and

different.”

Ultimately, the Court of Appeals for the Second Circuit determined

that a majority of Prince’s works constituted fair use.

“The court found that

twenty-five of Prince’s images ‘g[a]ve Cariou’s photographs a new expression,

and employ[ed] new aesthetics with creative and communicative results distinct

from Cariou’s.’”

Collage, OXFORD ENG. DICTIONARY (2d ed. 1989).

See MOMALEARNING, supra note 87.

Julian Azran, Bring Back the Noise: How Cariou v. Prince Will Revitalize Sampling, 38

COLUM. J.L. & ARTS 69, 85 (2014) (quoting DAN LEROY, THE BEASTIE BOYS’ PAUL’S

BOUTIQUE (33 1/3) 4 (2006)) (emphasis added).

See, e.g., Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013).

See id.

Id. at 698 (alteration in original).

Id. at 699.

See id. at 705-10.

Id. at 710.

Id. at 695.

Azran, supra note 90, at 97 (quoting Cariou, 714 F.3d at 708) (emphasis added).

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A similar factual situation to Cariou had arisen in Blanch v. Koons.

In that

case, artist Jeff Koons incorporated a version of a photograph he found in a

fashion magazine, without obtaining a license, into a collage that superimposed

various images over a pastoral landscape.

100

Andrea Blanch, the author and

101

The court determined that Koons’ collage made fair use of the photograph,

reasoning, importantly, that a finding of transformativeness bled over into the

other factors of the fair use analysis.

102

In discussing transformativeness, the

majority characterized Koons’ work as adapting a fashion photograph from a

“lifestyles” magazine “with changes of its colors, the background against which

it is portrayed, the medium, the size of the objects pictured, the objects’ details

and, crucially, their entirely different purpose and meaning—as part of a

massive painting commissioned for exhibition in a German art-gallery space.”

103

Note, however, that not every appropriation art case results in a finding of fair

use. In another case involving Jeff Koons, Koons created a sculpture that

replicated a postcard photograph which depicted people holding German

Shepherd puppies.

104

The court rejected Koons’ fair-use parody defense, finding

no parody of that particular photograph, and holding market substitution for the

postcard was likely.

105

Nonetheless, Cariou and Blanch serve as models for music sampling as fair

use. Both cases show how a finding of transformativeness can dominate a fair

use analysis in the appropriation context.

106

Importantly, while the court in

Blanch seemed to hold that transformative “purpose” was necessary to find fair

use,

107

the Cariou court expressly found no such purpose, nonetheless holding

that transformative “expression” was sufficient.

108

Just as the appropriation artist

may dissect an existing photograph and re-contextualize part of it among other

images, one who employs music sampling dissects an existing song and re-

contextualizes part of it among other music. Because appropriation art and music

sampling are so conceptually similar, the aforementioned cases have paved the

way for future courts to find that music sampling can often qualify as fair use.

To fully understand what a fair use analysis in a music-sampling case can look

like, consider the novel approach the court took in the following case from 2017.

Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006).

100

Id. at 246-49.

101

Id. at 246.

102

Id. at 257-59.

103

Id. at 253 (emphasis added).

104

Rogers v. Koons, 960 F.2d 301, 304-05 (2d Cir. 1992).

105

See id. at 310, 312.

106

See generally Cariou v. Prince, 714 F.3d 694, 706 (2d Cir. 2013); Blanch, 467 F.3d at

256.

107

Blanch, 467 F.3d at 251.

108

Cariou, 714 F.3d at 706.

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III. A CONTEMPORARY PERSPECTIVE ON MUSIC SAMPLING AND FAIR USE:

ESTATE OF SMITH V. CASH MONEY RECORDS, INC.

A. Background

On May 30, 2017, the United States District Court for the Southern District

of New York found an instance of music sampling to be fair use, issuing what

may prove to be a watershed opinion for unlicensed music sampling.

109

In Estate

of Smith v. Cash Money Records, Inc., the estate of jazz musician James

“Jimmy” Smith sued Grammy Award-winning rapper Aubrey “Drake” Graham,

Drake’s label, and others, for infringement of Smith’s musical work

110

The suit stemmed from Drake’s sampling of about thirty-five

seconds from Smith’s 1982 song “Jimmy Smith Rap” for use in Drake’s own

single, “Pound Cake / Paris Morton Music 2.”

111

Drake obtained a license for

the sound recording of “Jimmy Smith Rap,” but not for the underlying

composition.

112

The portion Drake sampled, like all of “Jimmy Smith Rap,” was

entirely spoken-word.

113

Drake rearranged and, importantly, deleted some of

Smith’s original lyrics.

114

Both sets of lyrics are reprinted below. The full lyrics

to “Jimmy Smith Rap” are as follows:

Good God Almighty, like back in the old days

You know, years ago they had the A & R men to tell you what to play, how

to play it and you know whether it’s disco rock, but we just told Bruce that

we want a straight edge jazz so we got the fellas together Grady Tate, Ron

Carter, George Benson, Stanley Turrentine.

Stanley was coming off a cool jazz festival, Ron was coming off a cool jazz

festival. And we just went in the studio and we did it.

We had the champagne in the studio, of course, you know, compliments of

the company and we just laid back and did it.

Also, Grady Tate’s wife brought us down some home cooked chicken and

we just laid back and we was chomping on chicken and having a ball.

Jazz is the only real music that’s gonna last. All that other bullshit is here

today and gone tomorrow. But jazz was, is and always will be.

We may not do this sort of recording again, I may not get with the fellas

again. George, Ron, Grady Tate, Stanley Turrentine.

109

Estate of Smith v. Cash Money Records, Inc., 253 F. Supp. 3d 737, 752 (S.D.N.Y. 2017).

110

Id. at 743-44.

111

Id. at 743.

112

Id.

113

Id. at 742-43.

114

Id. at 743.

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So we hope you enjoy listening to this album half as much as we enjoyed

playing it for you. Because we had a ball.

115

The sample Drake used in the intro to “Pound Cake / Paris Morton Music 2”

consisted of the following:

Good God Almighty, like back in the old days.

You know, years ago they had the A & R men to tell you what to play, how

to play it and you know whether it’s disco rock, but we just went in the

studio and we did it.

We had champagne in the studio, of course, you know, compliments of the

company, and we just laid back and did it.

So we hope you enjoy listening to this album half as much as we enjoyed

playing it for you. Because we had a ball.

Only real music is gonna last, all that other bullshit is here today and gone

tomorrow.

116

Drake abridged or omitted several lines of Smith’s original, and reordered

others.

117

The most crucial change, in the court’s view, was Drake’s truncating

the original line “Jazz is the only real music that’s gonna last,” to “Only real

music is gonna last.”

118

Crediting the transformativeness of Drake’s

appropriation, the court granted Drake’s motion for summary judgment, finding

fair use of the unlicensed musical work alongside the licensed sound recording

sample.

119

B. Analysis – An In-Depth Look at the Court’s Fair Use

Approach in Estate of Smith

What makes Smith so significant is that no other case holds that non-parodic

music sampling, whether of a musical work or a sound recording, falls under fair

use. Newton and its Ninth-Circuit progeny found no infringement under a de

minimis rationale, so those cases never had occasion to address fair use.

120

Similarly, in Bridgeport Music, Inc. v. Dimension Films, the lower court found

no infringement under a de minimis rationale, so the Court of Appeals for the

115

Id. at 742 (emphasis added).

116

Id. at 743 (emphasis added).

117

See id. at 749-50.

118

Id at 749.

119

Id. at 752.

120

Recall that in Newton v. Diamond, 388 F.3d 1189, 1190 (9th Cir. 2004) and VMG

Salsoul, LLC v. Ciccone, 824 F.3d 871, 874 (9th Cir. 2016), the Ninth Circuit found only de

minimis copying, meaning the defendants in those cases were deemed not to have infringed

any of the plaintiffs’ copyrights, obviating the need to reach any other argument the

defendants may have raised, such as fair use.

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Sixth Circuit did not consider fair use on appeal.

121

Though the Sixth Circuit

explicitly authorized the district court to consider a fair use defense on remand,

the case settled, leaving fair-use aficionados to speculate.

122

To predict whether Smith might usher in a new line of cases wherein

defendant music-samplers seek refuge under the fair use defense, one should

consider the ways in which Judge William H. Pauley III’s fair use analysis in

the music-sampling context of that case was correct and the ways in which it

may have been incorrect. Though Smith dealt with a musical work copyright

implicated by digital sampling, it is not clear how the court’s fair use analysis

would have differed had the sound recording been at issue rather than the

composition.

123

In finding fair use of the Plaintiffs’ musical work, the court first

noted that courts should “preclude a finding of infringement where ‘the

would be better served by allowing the use than by preventing it.’”

124

The court

then systematically applied the four fair use factors.

125

i. Factor One

Under factor one, which the court referred to as “[t]he heart of the fair use

inquiry,” the court never explicitly considered whether Drake’s use of the

sample was for commercial purposes.

126

“Pound Cake / Paris Morton Music 2”

was undoubtedly a commercial work, and while courts almost never regard

commerciality as dispositive under factor one, it is still odd that the court made

no mention of commerciality at all.

127

Even though courts generally give little

substantive weight to commerciality, the Act expressly directs courts to consider

a work’s “commercial nature” in fair use analyses.

128

The bulk of the court’s reasoning under factor one dealt with

transformativeness.

129

Drake advanced three arguments supporting

121

Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792, 805 (6th Cir. 2005). One

might consider whether the bright-line approach adopted in Bridgeport actually leaves room

for a meaningful fair use defense in the Sixth Circuit, despite the court’s express statement

that the fair use defense remained available.

122

Agreed Order of Dismissal at 1, Bridgeport Music, Inc. v. 11C Music, No. 3:01-00412

(M.D. Tenn. Jan. 17, 2006), ECF No. 676.

123

For a more detailed discussion of this idea, see infra Part IV.

124

Estate of Smith, 253 F. Supp. 3d at 748 (quoting Castle Rock Entm’t, Inc. v. Carol Publ’g

Grp., Inc., 150 F.3d 132, 141 (2d Cir. 1998)).

125

Estate of Smith, 253 F. Supp. 3d at 748-52.

126

Id. at 749-51 (quoting Davis v. The Gap, Inc., 246 F.3d 152, 174 (2d Cir. 2001)).

127

Drake, Pound Cake / Paris Morton Music 2, on NOTHING WAS THE SAME (DELUXE)

(Cash Money Records 2013) SPOTIFY,

https://open.spotify.com/album/2gXTTQ713nCELgPOS0qWyt [https://perma.cc/XH5K-

CE4D] (the song has been streamed on Spotify over 129 million times as of Nov. 20, 2019);

see GOLDSTEIN, supra note 57, at 12:28.

128

17 U.S.C. § 107 (2012); GOLDSTEIN, supra note 57, at 12:28.

129

Estate of Smith, 253 F. Supp. 3d at 749-51.

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transformative use.

130

First, he argued that his new song “fundamentally

alter[ed] the message of the original work . . . by editing the recording from ‘Jazz

is the only real music that’s gonna last’ to ‘Only real music is gonna last,’” and

that he had thus “transformed Jimmy Smith’s dismissive comment into a

statement on the relevance and staying power of ‘real music,’ regardless of

genre.”

131

Second, Drake argued that by removing references to Smith’s record,

Drake made the words apply to the making of his own album rather than

Smith’s.

132

Drake’s third transformativeness argument was “that the addition of

background music, the rearrangement of some words, and the placement of the

recording in a seven-minute hip hop track render[ed] the[] use

transformative.”

133

The court rejected the latter two arguments as not being

sufficiently transformative in purpose, though it acknowledged that these

arguments did indicate transformative form.

134

The court agreed with Drake’s

first argument, however, finding that alteration of the “key” phrase “Jazz is the

only real music that’s gonna last” to “Only real music is gonna last” made the

sample’s purpose transformative, and that the first factor thus supported a

finding of fair use.

135

The court was correct to weigh transformativeness so greatly, in light of

Supreme Court and Second Circuit precedent.

136

Thus, its conclusion that

Drake’s changing the line “Jazz is the only real music that’s gonna last” to “Only

real music is gonna last” made the sample’s purpose transformative comports

with precedent and reason.

137

The Second Circuit expressly deemed

transformative purpose a means of achieving transformativeness in Blanch,

138

and the statement “Only real music is gonna last” clearly differs in meaning from

the statement “Jazz is the only real music that’s gonna last,” evincing Drake’s

new purpose.

139

While the purpose of Smith’s original statement was to extol

the supremacy of jazz over other genres, Drake’s statement speaks to the lasting

power of “real music,” irrespective of its genre.

140

Further, the court was right to reject Drake’s second argument for

transformative purpose: that by removing references to Smith’s album, Drake

130

Id. at 749.

131

Id.

132

Id.

133

Id.

134

Id. at 749-50.

135

Id. at 750-51.

136

See, e.g., Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994); Cariou v. Prince,

714 F.3d 694 (2d Cir. 2013); Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605

(2d Cir. 2006).

137

See Estate of Smith, 253 F. Supp. 3d at 750-51; see also Blanch v. Koons, 467 F.3d 244,

253 (2d Cir. 2006).

138

See Blanch, 467 F.3d at 253.

139

See Estate of Smith, 253 F. Supp. 3d at 750-51.

140

See id. at 749.

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made the lyrics apply to the making of Drake’s own album rather than

Smith’s.

141

The court was correct to reject this argument because the sampled

lines describing Smith’s recording process, if taken to likewise describe Drake’s

recording process, would serve only to recapitulate Smith’s purpose for those

lyrics. In short, the purpose of those specific lyrics remained the same:

describing a recording process.

142

The court called Drake’s appropriation of

these lyrics “literally transformative in the sense that [Drake] does not

appropriate [‘Jimmy Smith Rap’] verbatim.”

143

This is odd, though, because the

lyrics Drake sampled regarding the recording process were sampled verbatim.

144

The court diverged from proper course under factor one by narrowing the

transformativeness doctrine to concern only transformative purpose or

message.

145

Under Cariou, appropriation that “‘add[s] something new’ and

present[s] [a plaintiff’s work] with a fundamentally different aesthetic” weighs

in favor of fair use.

146

In Cariou, it did not matter that Richard Prince explicitly

stated that he had no intention of “creat[ing] anything with a new meaning or a

new message.”

147

The Cariou court reasoned that some of Prince’s appropriation

of Cariou’s photographs was nonetheless transformative in expression.

148

In light of Cariou, then, Drake’s third argument for transformativeness

probably should have prevailed as well.

149

Drake’s recontextualization of

Smith’s voice and lyrics with “background music, the rearrangement of some

words, and . . . placement . . . in a seven-minute hip hop track”

150

rendered

Drake’s use “something new . . . with a fundamentally different aesthetic.”

151

This recontextualization rationale should hold in other cases of music sampling,

mainly because it describes how music sampling is actually practiced and the

creativity that music sampling entails.

152

And from a stare decisis standpoint,

141

Id. at 749-50.

142

Id.

143

Id. at 750 (alteration in original).

144

See id. at 742-43.

145

See id. at 749-51; see also Cariou v. Prince, 714 F.3d 694, 708 (2d Cir. 2013).

146

Cariou, 714 F.3d at 708 (alteration in original) (quoting Leibovitz v. Paramount Pictures

Corp., 137 F.3d 109, 114 (2d Cir. 1998)).

147

Id. at 707 (alteration in original).

148

Id. at 706-08.

149

See Estate of Smith, 253 F. Supp. 3d at 749; see also Cariou, 714 F.3d at 706-08.

150

Estate of Smith, 253 F. Supp. 3d at 749.

151

Cariou, 714 F.3d at 708 (citing Leibovitz, 137 F.3d at 114).

152

See generally Olufunmilayo B. Arewa, From J.C. Bach to Hip Hop: Musical Borrowing,

Hits from the Bong, on BLACK SUNDAY (Ruffhouse Records 1993), with DUSTY SPRINGFIELD,

Son of a Preacher Man, on DUSTY IN MEMPHIS (Atlantic Records 1968).

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Drake’s recontextualization rationale in no way contradicts Supreme Court

precedent and is entirely in line with the Second Circuit’s approach in Cariou.

153

ii. Factor Two

Under factor two, the nature of the copyrighted work, the court reasoned that

music falls under the core of creative expression that copyright is meant to

protect, but that the second factor is of limited value when the defendant’s use

is for a transformative purpose.

154

Thus, the court’s analysis of factor two

conforms with precedent.

155

Factor two remains the least controversial or

contested within the fair use doctrine, leaving little if anything to say regarding

its application here.

156

iii. Factor Three

For factor three, the court reasoned that the commentary drawn from “Jimmy

Smith Rap,” in tandem with the “key phrase” concerning “real music,” “serve[d]

to drive the point home . . . that many musicians make records in similar ways

(e.g. with the help of A & R experts or the stimulating effects of champagne),

but that only ‘real’ music—regardless of creative process or genre—will stand

the test of time.”

157

The court accordingly found that the amount Drake used was

reasonable in proportion to his transformative purpose, and appropriately found

that factor three favored fair use.

158

The court’s approach is cogent, but factor three inevitably raises some

complexities.

159

Because the third factor has undergone a change over time, from

a focus on the amount and substantiality of the copied portion solely with respect

to the copyrighted work, to an additional emphasis on the copied portion with

respect to the defendant’s work on the whole, the state of the law is somewhat

unclear under the third factor.

160

Given this uncertainty, it would appear the

court’s take in Smith was mostly on point.

161

The court focused on “the amount

taken by Defendants . . . in proportion to the needs of the intended

transformative use,” quoting in its analysis Blanch and Cariou.

162

153

See, e.g., Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 572 (1994); Harper & Row

Publishers, Inc. v. Nation Enters., 471 U.S. 539, 566 (1985); Cariou, 714 F.3d at 698-99.

154

Estate of Smith, 253 F. Supp. 3d at 751 (citing Bill Graham Archives v. Dorling

Kindersley Ltd., 448 F.3d 605, 611 (2d Cir. 2006)).

155

See, e.g., Campbell, 510 U.S. at 586.

156

See generally GOLDSTEIN, supra note 57, at 12:45-54; Beebe, supra note 72, at 610-15.

157

Estate of Smith, 253 F. Supp. 3d at 751-52 (alteration in original).

158

Id.

159

See id.; see also Campbell, 510 U.S. at 586-589.

160

See supra text accompanying notes 67-69.

161

See supra text accompanying notes 68-69; see also Estate of Smith, 253 F. Supp. 3d at

751-52.

162

Estate of Smith, 253 F. Supp. 3d at 751.

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One rather puzzling remark is that the court, in its factor-three analysis, refers

to Drake’s use as “commentary,” whereas the court makes no reference to

Drake’s use as “commentary” under factor one.

163

Given that “comment[ary]”

is explicitly referenced in the statutory preamble to § 107 and has been a time-

tested haven for fair use in the courts,

164

it is a bit odd that the court would not

discuss Drake’s use as “commentary” when addressing factor one, the purpose

and nature of the use, if the court did consider Drake’s use “commentary.”

165

The court’s opaque reference to the use as “commentary” under factor three

raises the question of what exactly it intended by using that descriptor.

166

iv. Factor Four

The court noted that the fourth factor, the use’s effect on the potential market

for or value of the copyrighted work, was “undoubtedly the single most

important element of fair use.”

167

The court also remarked that the “fourth factor

is . . . closely linked to the first, in the sense that ‘the more the copying is done

to achieve a purpose that differs from the purpose of the original, the less likely

it is that the copy will serve as a satisfactory substitute for the original.’”

168

The

court then found that the target audience for “Jimmy Smith Rap” was “sharply

different” than the target audience for Drake’s track and that the plaintiffs had

made no efforts to license derivative uses of “Jimmy Smith Rap.”

169

Those

findings, alongside the “highly transformative” nature of Drake’s use and the

absence of evidence in the record suggesting market usurpation, prompted the

conclusion that factor four favored Drake.

170

The court then concluded that the

four factors, considered “in light of the goals of copyright law and the facts in

the record,” led to a finding of fair use.

171

Under factor four, the court largely stuck to precedent, punctuating its

analysis with the logical conclusion that Drake’s use would not substitute in the

market for “Jimmy Smith Rap” or its derivatives.

172

One wrinkle is that the

court called factor four “undoubtedly the single most important element of fair

163

Id. at 749-52.

164

See, e.g., Campbell, 510 U.S. 569; Katz v. Google, 802 F.3d 1178, 1183 (11th Cir.

2015); Equals Three, LLC v. Jukin Media, Inc., 139 F. Supp. 3d 1094 (C.D. Cal. 2015); see

also 17 U.S.C. § 107 (2012).

165

See Estate of Smith, 253 F. Supp. 3d at 749-52.

166

See id.

167

Id. at 752 (quoting Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 566

(1985)).

168

Id. (quoting Authors Guild v. Google, Inc., 804 F.3d 202, 223 (2d Cir. 2015)); Castle

Rock Entm’t, Inc. v. Carol Publ’g Grp., Inc., 150 F.3d 132, 145 (2d Cir. 1998).

169

Estate of Smith, 253 F. Supp. 3d at 752.

170

Id.

171

Id.

172

See id. (citing Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 592 (1994)); Castle

Rock, 150 F.3d at 145).

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use,” after having referred to factor one as “[t]he heart of the fair use inquiry.”

173

Other commentators have remarked on the potential tension where courts

prioritize both factor one and factor four.

174

Harper & Row Publishers, Inc. v.

Nation Enters., the Supreme Court case that first stressed the importance of

factor four, has not been overruled.

175

That said, invoking the near-controlling

importance of both the first and fourth factors in the same opinion as the court

did in Smith seems inadvisable, as the two may not always coincide.

176

The court grounded its fourth-factor reasoning in the fact that the target

audience for “Jimmy Smith Rap” was “sharply different” than the target

audience for Drake’s track, and that the plaintiffs had made no efforts to license

derivative uses of “Jimmy Smith Rap.”

177

Even if both those statements are true,

one might reasonably question whether the target audience is the only

population who matters under factor four, and whether plaintiffs’ own efforts to

license samples should matter under factor four.

178

IV. MODEL APPLICATION OF FAIR USE FOR MUSIC SAMPLING CASES

Smith was a major milestone on the path to greater acceptance of music

sampling as fair use. That being said, the court’s analysis may have been

deficient in some important respects. Later courts applying the exact same

approach would not be utilizing the fair use doctrine and precedent to their full

potential in cases of music sampling. Considering the factors in aggregate, music

sampling could often be a great candidate for application of the fair use doctrine.

This section provides a general, model approach to application of the fair use

doctrine in music-sampling cases, drawing particularly on lessons from Smith,

as well as from valuable precedent in the realm of visual appropriation art.

179

begins with a look at a possible narrow distinction in the fair use analyses for

musical work versus sound recording copyrights.

An important part of a court’s overall fair use analysis is the question, “Did

the Defendant need to do what she did to achieve her goal/purpose?” with an

answer of “Yes” cutting in favor of fair use, and “No” cutting against fair use.

180

Recall also that “replaying” ostensibly provides an alternative to sampling a

173

See id. at 749-52 (first quoting Harper & Row Publishers, Inc. v. Nation Enters., 471

U.S. 539, 566 (1985); and then quoting Davis v. The Gap, Inc., 246 F.3d 152, 174 (2d Cir.

2001)).

174

See Beebe, supra note 72, at 583; see also GOLDSTEIN, supra note 57, at 12:32-33, 12:58.

175

Harper & Row, 471 U.S. 539; see also Campbell, 510 U.S. at 585.

176

See Beebe, supra note 72, at 583.

177

Estate of Smith, 253 F. Supp. 3d at 752.

178

For a discussion on fourth-factor issues, see infra Section IV.D.

179

Note that any “general, model approach” to fair use will be inherently limited to some

extent, because fair use is such a fact-specific inquiry. See Campbell, 510 U.S. at 577.

Nonetheless, such a model has value as a starting point for courts.

180

See supra text accompanying notes 78-81; see, e.g., Walt Disney Prods. v. Air Pirates,

581 F.2d 751, 758 (9th Cir. 1978).

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sound recording, meaning a musician’s choice to sample a recording seems to

cut against fair use.

181

However, the mere fact that a sample-based musician

theoretically could have replayed part of a sound recording rather than sampling

it should not vitiate her fair use defense. Sampled artists’ voices or instrumental

tones may be so unique that even the best studio musician could not replicate

them exactly.

182

A sample-based musician’s artistic vision may hinge on

repurposing those exact, unique sounds in her own track. Further, a sample-

based musician may not be proficient vocally, or on the instrument she wishes

to sample, and session musicians can be quite expensive.

183

Therefore, when

courts ask as part of their fair use analyses in cases wherein the defendant opted

to sample a sound recording rather than replay it, “Did the Defendant need to do

it this way to achieve her goal/purpose?,” the answer may actually be “Yes,”

weighing in favor of fair use.

184

This argument pertains to both sound recording

and musical work copyrights. When courts inquire about alternative methods, a

defendant’s inability to purchase licenses due to limited financial resources

185

indicates that by sampling, the artist achieved her artistic vision the only way

she could, weighing in favor of fair use. Ultimately then, it may be no more, or

less, difficult to prevail on a fair use defense for a sound recording than a musical

work, especially for defendants with limited financial resources.

186

Having acknowledged an important wrinkle in the model fair uses analyses

for sound recordings and musical works, the following subsections walk through

the four statutory fair use factors. Importantly, the application of the four fair

use factors should be the same regardless of whether a musical work or a sound

recording is the copyright at issue, as explained in more detail below.

181

See supra text accompanying notes 83-84; see also Holz, supra note 3; MUSICRADAR,

supra note 78.

182

See, e.g., David Cox, Is Your Voice Trustworthy, Engaging or Soothing to Strangers?,

THE GUARDIAN (Apr. 16, 2015), https://www.theguardian.com/science/blog/2015/apr/16/is-

your-voice-trustworthy-engaging-or-soothing-to-strangers [https://perma.cc/5CLH-QGAS]

(describing “interactions between an array of different features from pitch to energy

accumulated over time, which all combine to give each voice its unique fingerprint or

signature”); Five Guitarists Talk Tone Inspiration, GUITAR.COM (Mar. 21, 2018),

https://guitar.com/features/five-guitarists-spill-the-secrets-behind-their-tone/

[https://perma.cc/3STE-YFZ6] (discussing guitarists with “unique” guitar tones).

183

See Szymanski, supra note 35, at 276 (citing Johnson, supra note 38, at 275) (discussing

how sampling can “reduce studio and musician costs,” and “relieve the pressure placed on

producers and sound engineers to achieve the ‘right’ sound”); see also Session Musicians –

Know Your Rights, MUSIC INDUS. INSIDE OUT (Apr. 18, 2015),

https://musicindustryinsideout.com.au/session-musicians-know-rights/

[https://perma.cc/DD9B-KXP6] (noting the “standard rate” for session musicians in Australia

is approximately 100 Australian dollars per hour, which is equal to about 72 U.S. dollars per

hour).

184

See supra Part I; see, e.g., Disney, 581 F.2d at 758.

185

See supra Part I.

186

See supra Part I.

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A. Factor One: Purpose and Character of the Use

With respect to factor one, sampling can vary in transformativeness based on

how much of an existing song a musician samples, the specific elements a

musician samples, the extent to which the sampled portion is altered in a new

song, and the way in which the sample is accompanied by other music in a new

song. Indeed, artists employing samples often make “something new, with a

further purpose or different character, altering the [portion of the original work]

with new . . . meaning[] or message.”

187

This much is true whether the contested

when an artist repurposes or manipulates the sounds of a preexisting recording,

she likewise repurposes or manipulates the underlying lyrics or pattern of notes

in the composition.

Consider a musician who, through sampling, uses the “minimal [amount]

necessary to accomplish [her] … purpose;” such minimal use bespeaks

transformativeness.

188

If a musician alters a sampled portion of a song by

changing the tempo or pitch of the original, this adds to transformativeness.

189

If a new song has a different “theme, mood, [or] tone” than the song it

samples,

190

or uses sampled lyrics to convey a different message in a different

context than the lyrics did in the original song, the new song makes

transformative use of its sample. Further, if a sampled portion of an existing

song constitutes an “inconsequential portion” of a new song, the use is more

likely to be transformative.

191

Moreover, if the sample fits into a new song

among other music, and is played simultaneously with other sounds, the

resulting aural “collage” reinforces the argument for transformative use.

192

Transformative use can greatly influence the remaining factors.

193

If a commercial song incorporates sampling, its commercial nature

concededly cuts against sampling as fair use under factor one.

194

However,

commerciality is not dispositive, and the commerciality of a work does not

render its use of a prior work presumptively unfair.

195

Thus, a sufficiently

transformative commercial work may still fall under fair use.

196

187

Castle Rock Entm’t, Inc. v. Carol Publ’g Grp., Inc., 150 F.3d 132, 141-42 (2d Cir. 1998)

(citing Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994)).

188

Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 611 (2d Cir. 2006)

(alteration in original).

189

Id. (alteration in original).

190

Bridgeport Music, Inc. v. UMG Recordings, Inc., 585 F.3d 267, 278 (6th Cir. 2009)

(alteration in original).

191

See Graham, 448 F.3d at 611.

192

See id.

193

See, e.g., Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 594 (1994).

194

GOLDSTEIN, supra note 57, at 12:26.

195

See Campbell, 510 U.S. at 594.

196

See id.

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B. Factor Two: Nature of the Copyrighted Work

Factor two, the nature of the copyrighted work, “calls for recognition that

some works are closer to the core of intended copyright protection than others,

with the consequence that fair use is more difficult to establish when the former

works are copied.”

197

Music is among those subjects at the core of intended

corresponding sound recording concededly cuts against sampling as fair use.

198

That said, this factor “may be of limited usefulness where the creative work . . .

is being used for a transformative purpose.”

199

Indeed, in both Cariou and

Blanch, the copied photographs were at the core of intended copyright

protection, yet both cases found fair use.

200

Thus, a sufficiently transformative

use of a preexisting song can still be fair use.

201

C. Factor Three: Amount and Substantiality of the Portion Used

The third factor inquiry asks whether the “quantity” and “value” used “are

reasonable in relation to the purpose of the copying.”

202

With respect to factor

three, the link to transformativeness is of the utmost importance.

203

Courts assess

the amount and substantiality of the portion used, relative to the original work

as a whole, in both quantitative and qualitative terms.

204

This is a highly fact-

specific inquiry, and a sliding scale.

205

In the context of recorded music and

sampling, the third-factor inquiry should not differ between musical works and

sound recordings. When a musician samples more of one or a more substantial

part of one, it would appear she samples more of, or a more substantial part of,

the other as well.

Samples that use quantitatively more of a prior song, or a qualitatively more

significant part of a prior song, are concededly less likely to be fair use.

206

Relatedly, samples that use quantitatively less of a prior song, or a qualitatively

less significant part of a prior song, are more likely to be fair use.

207

Given that

some courts examine the portion the defendant copied relative to the defendant’s

work as well, samples that form a less quantitatively or qualitatively significant

197

Id. at 586.

198

See id.

199

Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 612 (2d Cir. 2006); see

also Castle Rock Entm’t, Inc. v. Carol Publ’g Grp., Inc., 150 F.3d 132, 142 (2d Cir. 1998).

200

See supra text accompanying notes 92-103.

201

See, e.g., Campbell, 510 U.S. at 586.

202

Id.

203

See id. at 579.

204

See id. at 587.

205

See id. at 577.

206

See id. at 587-88.

207

See id.

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part of the defendant’s work are also more likely to be fair use.

208

Thus the fact-

dependent nature of this inquiry provides little general guidance, and courts

should be careful not to give the third factor too much weight in a multifactorial

balancing test that prioritizes the first and fourth factors.

209

However, because

transformativeness bears on this factor as well, and because samples may consist

of only minuscule and/or obscure parts of prior compositions and recordings, the

third factor should not vitiate the sampling-as-fair-use argument in very many

cases.

D. Factor Four: Effect on the Market

Under factor four, the proper inquiry is whether a new song will usurp the

market for the sampled/existing song, or usurp part of the derivative market for

songs sampling the existing song.

210

This much is true of sampled sound

recordings and their underlying musical works. There are markets for both, and

any alleged market usurpation of a recording logically coincides with alleged

market usurpation of its corresponding musical work, and vice versa.

Critics of music-sampling-as-fair-use might contend, relying on factor four,

that absolving musicians of the need to obtain licenses will deprive sampled

artists, or their rights-holders, of profits to which they are entitled.

211

This

argument has a superficial appeal. However, it rests on two flawed assumptions.

The first is that a plaintiff’s lost licensing fee(s) from the defendant should

qualify as market harm under factor four.

212

The second is that sampling has an

empirically evident negative effect on the market for a sampled/existing song,

or on the market for other songs sampling that existing song.

213

Given that the

Supreme Court has called the fourth factor “undoubtedly the single most

important element of fair use,”

214

let us explore these flawed fourth-factor

assumptions in more detail.

Consider the first flawed assumption, that a plaintiff’s lost licensing fee(s)

from the defendant should qualify as market harm. This contention is not

specific to the context of music or music sampling. Commentators and courts

have long debated whether a plaintiff’s lost licensing fees from the defendant

208

See GOLDSTEIN, supra note 57 (citing Wright v. Warner Books Inc., 953 F.2d 731, 739

(2d Cir. 1991)).

209

See supra text accompanying notes 55-73.

210

See Campbell, 510 U.S. at 590-92.

211

See Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 589 (1985)

(Brennan, J., dissenting).

212

See Christina Bohannan, Copyright Harm, Foreseeability, and Fair Use, 85 WASH. U.

L. REV. 969, 978 (2007) (“[T]he copyright owner typically argues that he or she suffered harm

because the defendant could have paid her a licensing fee for use of the work.”).

213

Mike Schuster et. al., Sampling Increases Music Sales: An Empirical Copyright Study,

56 AM. BUS. L.J. 177, 208 (2019).

214

Harper & Row, 471 U.S. at 566.

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should qualify as market harm under factor four.

215

This author falls in the camp

of commentators who believe lost licensing fees from the defendant should not

qualify. To hold that they should qualify is circular logic:

216

“It is wrong to

measure the detriment to plaintiff by loss of presumed royalty income—a

standard which necessarily assumes that plaintiff had a right to issue

licenses. . . . [and] that the defendant’s practices did not constitute fair use . . .

[O]ne cannot assume at the start the merit of the plaintiff’s position.”

217

In an

effort to “avoid the circularity,” some scholars have suggested courts should

“infer[] harm from foreseeable uses.”

218

Because one could argue that an

existing market is (or was) a foreseeable one, and because a robust market exists

for licensing musical works and sound recordings, the ‘foreseeability’ approach

would appear to weigh in favor of the plaintiff in every case of unlicensed music

sampling.

However, this purportedly non-circular approach is similarly flawed. Just

because something happened does not mean it was foreseeable. Consider the

difference between cause-in-fact and proximate cause in tort law.

219

The mere

fact that a market exists for licensing musical works and sound recordings does

not necessarily imply such a market was foreseeable.

220

Moreover, if an existing

licensing market gives rise to an inference of fourth-factor harm, the implication

is that a large-scale occurrence in the world of economics and consumer

transactions (i.e., the development of a market for music licensing) swallows

what is supposed to be an individualized legal determination and analysis in fair

use cases, thereby doing the courts’ job for them.

The concept of foreseeable use renders an already difficult, subjective, and

abstract fair use analysis even more difficult, subjective, and abstract. This is

especially true in a context like music sampling, where the temptation of

hindsight bias makes it exceedingly difficult to determine whether the

development of the now-existing technology and practice of music sampling,

and markets for related licensing, were foreseeable.

221

Thus, the concept of

foreseeable use, and the practice of treating a plaintiff’s lost licensing fee(s) from

the defendant as market harm under fair-use factor four, are ultimately not that

215

See generally GOLDSTEIN, supra note 57, at 12:60-68.

216

See id. at 12:60.

217

Williams & Wilkins Co. v. United States, 487 F.2d 1345, 1357 n.19 (Ct. Cl. 1973)

(alteration in original).

218

See, e.g., Bohannan, supra note 212, at 973-74 (describing one “definition of harm” in

the fourth-factor context that attempts to evade a circular argument with respect to lost license

fees and market harm).

219

See, e.g., Charles E. Carpenter, Workable Rules for Determining Proximate Cause-Part

III, 20 CAL. L. REV. 470, 471-72 (1932) (distinguishing cause in fact from the higher standard

of proximate cause, and describing foreseeability as a factor in finding the latter, though both

are legal “cause[s]”).

220

See id.

221

See Matthew Africa, The Misuse of Licensing Evidence in Fair Use Analysis: New

Technologies, New Markets, and the Courts, 88 CAL. L. REV. 1145, 1148 (2000).

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helpful. Courts should look to demonstrable market harm under the fourth

factor. In the context of music sampling, this leads to the second flawed

assumption.

The second flawed assumption is that sampling has an empirically evident

negative effect on the market for a sampled/existing song, or on the market for

other songs sampling that existing song. The reality may be an insurmountable

evidentiary hurdle for plaintiffs, and perhaps even a framework that is

fundamentally inapplicable in the music-sampling context, pointing toward a

finding of fair use.

222

Of the four factors, the fourth-factor inquiry actually

provides perhaps the most compelling rationale for music sampling as fair use.

What does it mean for a song to be a market substitute for another song?

Presumably, under the conventional economic concept of market substitution,

223

it means that listeners can replace one song with another. Classic examples of

market substitutes include butter and margarine.

224

But the concept of market

substitution, typically applied in the context of goods,

225

is problematic in the

music context. Given the immense levels of subjectivity and individual

preference involved in music consumption,

226

the notion that two songs could

“replace” one another in the market for music is ultimately unrealistic—it does

not take into account how music consumption actually happens.

Certainly, an individual listener will occasionally make a conscious choice to

listen to one song over another. But for a vast percentage of listeners, especially

those who listen to multiple genres, the songs they consciously choose to listen

to over others may bear little-to-no resemblance to the songs they have

foregone.

227

For such listeners with eclectic tastes, discussing songs as being

similar, or even partially identical in cases of obvious sampling, is unhelpful in

a market-substitution inquiry. A choice to listen to one song over another may

have little-to-nothing to do with any similar elements the songs share.

To further illustrate the standard fourth-factor inquiry’s shortcomings in the

music context, consider the substitute-versus-complement test the Seventh

222

See infra text accompanying notes 236-38.

223

See generally EDGAR K. BROWNING, MICROECONOMIC THEORY & APPLICATIONS 56-57

(6th ed. 1999).

224

Id. at 56-57 (explaining how to measure “the willingness of a consumer to substitute one

good for another”).

225

Id. at 57.

226

See generally Albert LeBlanc, An Interactive Theory of Music Preference, 19 J. MUSIC

THERAPY 28, 29-31 (1982).

227

See, e.g., Angela Balakrishnan, Presidential Playlist: Obama Opens Up His iPod, THE

GUARDIAN (June 25, 2008),

https://www.theguardian.com/world/2008/jun/25/barackobama.uselections2008

[https://perma.cc/8Z2W-LANL]; Alex Marshall, Donald Trump’s Unexpected Thoughts on

Music – Revealed, BBC MUSIC (Nov. 9, 2016),

https://www.bbc.co.uk/music/articles/e5e4572a-0676-4120-9eb3-d34bbea34836

[https://perma.cc/4EAS-8BAQ] (noting an individual listener may be a fan of disparate

musical genres).

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Circuit has applied.

228

In that test, the court asks “whether the contested use is a

complement to the protected work (allowed) rather than a substitute for it

(prohibited).”

229

Nails are the quintessential complements to hammers, whereas

nails are substitutes for screws or pegs.

230

Using that analogy, is the relationship

between two similar songs more like that of hammer and nail, or that of a screw

and nail? Consider that the relationship, even between two songs that are

markedly similar, may more closely resemble the former: exposure to a song of

a certain style may ignite a passion in a listener for songs of that style, prompting

that listener to seek out other songs similar to the first.

231

Thus, appreciation for

a song does not preclude consumption of similar songs; instead, it may actually

promote consumption of similar songs.

232

This effect is well-documented in the

sampling context specifically, with research showing that listeners of a song

containing a sample are more likely to seek out the sampled song.

233

The difficulties of applying § 107’s fourth factor in the music context may

reach even broader. Indeed, the concept of market substitution is problematic

across the entire entertainment sector. Imagine an individual consumer decides

to spend her afternoon watching a film. While perusing the films available to

her, that user may very well mull over several films, each of a different genre,

starring different actors, and the product of a different creative team. Does the

consumer’s choice to watch one film over the others she was considering mean

all the films she considered are market substitutes for each other, despite any

stark differences between them? Now, imagine that same individual consumer

decides she no longer wishes to watch a film at all, and instead chooses to listen

to some of her favorite records, or even to go outside and fly a kite. Might music,

kite-flying, and film each usurp the entertainment market for one another?

234

The difficulty of the market-substitution framework is evident for such

dissimilar activities which, despite their differences, can and do serve as

replacement activities for one another.

235

Thus, it is difficult to meaningfully apply the market-substitution framework

within the realm of music, and music sampling in particular. Not only might two

228

Kienitz v. Sconnie Nation LLC, 766 F.3d 756, 758 (7th Cir. 2014) (citing Ty, Inc. v.

Publ’ns Int’l Ltd., 292 F.3d 512 (7th Cir. 2002)).

229

Id.

230

Ty, 292 F.3d at 517.

231

See, e.g., Confusion, Watch Kanye West Talk About Early Influences and Meeting

Michael Jackson, COMPLEX (Nov. 26, 2013), https://www.complex.com/pigeons-and-

planes/2013/11/kanye-west-michael-jackson [https://perma.cc/KRE9-L5T5].

232

See id.

233

See Mike Schuster et al., Sampling Increases Music Sales: An Empirical Copyright

Study, 56 AM. BUS. L.J. 177, 178 (2019); Szymanski, supra note 35, at 321.

234

See generally Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 592 (1994) (stating

that courts should look for usurpation of market demand under factor four).

235

Cf. Rajendra K. Srivastava et al., Market Structure Analysis: Hierarchical Clustering of

Products Based on Substitution-in-Use, 45 J. MARKETING 38, 38-48 (1981) (examining the

boundaries for substitution and competition of product).

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songs containing the same sample differ significantly,

236

but, even among

admittedly similar songs, highly subjective and individualized user preferences

do not lend themselves to market-substitution analysis.

237

Under factor four,

asking whether a song that includes a sample may substitute in the market for

the sampled/existing song or for other songs sampling the existing song may be

a fruitless inquiry.

Consequently, the difficulties of applying the market-substitution framework

in the music-sampling context present an evidentiary problem for plaintiffs. In

fair use cases, the plaintiff typically must establish “with reasonable probability

the existence of a causal connection between the infringement and a

[speculative] loss of revenue,” shifting the burden “to the infringer to show that

th[e] [alleged] damage would have occurred had there been no taking of

copyrighted expression.”

238

Given the arguments above, how exactly would

plaintiffs demonstrate a causal connection between lost revenue and a song that

has sampled their song? Because of the problem the market-substitution inquiry

poses in the music-sampling context, plaintiffs cannot easily establish market

usurpation.

Precisely defining the markets for the plaintiff’s work and for derivative

works is yet another difficulty with the fourth-factor inquiry in cases of music

sampling.

239

This author found no cases that address this problem head-on. One

might argue that the consumers in the relevant markets consist of, most broadly,

people who pay money to listen to music generally. Under this broad conception,

would every song be in competition with every other song? Such a conception

of the market is likely over-inclusive for purposes of the fair use doctrine. But

might a focus instead on target audience, however it is defined or determined,

be too limited? Narrowing markets for purposes of a fair use inquiry, without

being overly restrictive, is no easy feat.

In light of all the above difficulties that plaintiffs will encounter, it seems the

fourth factor will weigh in favor of fair use in many instances of unlicensed

music sampling. That is to say nothing of the fact that a finding of sufficient

transformativeness under factor one can itself seemingly dictate the outcome of

factor four in the defendant’s favor.

240

Given the importance of the fourth factor

in fair use analysis on the whole, what emerges is an understanding that music

sampling can often be fair use.

236

Compare, e.g., PRETTY LIGHTS, FINALLY MOVING (Pretty Lights Music 2006), with

AVICII, LEVELS (Interscope Records 2011).

237

See generally LeBlanc, supra note 226, at 29-31; see also supra text accompanying

notes 226-27.

238

Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 566-67 (1985)

(alteration in original).

239

See generally Campbell, 510 U.S. at 590-93 (explaining the importance of analyzing the

effect on the market for derivative works in fair use cases).

240

See id. at 569; Estate of Smith v. Cash Money Records, Inc., 253 F. Supp. 3d 737, 752

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

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However, one narrow hypothetical example of sampling may call into

question the above critique of the fourth factor inquiry in music-sampling cases.

Imagine a musician samples a song in its entirety with no changes or additions,

then she releases her “new” song, which is really an exact replica of the old

sound recording, under a new name and with a claim to authorship over the

“new” song. Is this “new” song not a market substitute for the original? It would

seem that market confusion very well could result. What should happen in such

a scenario, then? Market confusion is actionable under the Lanham Act,

241

in the

realm of those limited moral ownership rights afforded under United States law,

as opposed to the Copyright Act.

242

Conceding that market substitution likely

could result from this example of two virtually identical songs, one should also

recognize that copying exists on a spectrum.

243

The difficult question is, at

exactly what point down the line of similarity does market substitution surely

not exist?

Thankfully, even though the above hypothetical is perhaps thorny from a

fourth-factor standpoint, another dimension of fair use analysis renders it an easy

case. A court would surely deem such a blatant instance of total, literal copying

in an effort to pass the song off as one’s own to be insufficiently transformative

under factor one to warrant a finding of fair use. Thus, any wise guy attempting

to pass off someone else’s song as his own via “sampling” would be an

unsuccessful defendant in an infringement action, because a court would view

the character of such a use as not falling within the scope of § 107.

244

CONCLUSION

make music via sampling.

245

Artists are stifled because their art cannot exist

without licenses, but they cannot afford licensing fees.

246

Would-be musicians

of limited means are silenced.

247

Courts should consider this policy argument in

their fair use analyses.

248

The fair use defense provides hope for sample-based

241

Lanham Act § 43(a), 15 U.S.C. § 1125(a) (2012).

242

See 3 NIMMER ON COPYRIGHT § 8D.02, Lexis (database updated Aug. 2019); Gilliam v.

Am. Broad. Cos., 538 F.2d 14, 24 (2d Cir. 1976).

243

Compare VMG Salsoul, LLC v. Ciccone, 824 F.3d 871, 874-77 (9th Cir. 2016)

(involving literal copying), with Selle v. Gibb, 741 F.2d 896, 905 (7th Cir. 1984) (holding that

plaintiff’s evidence of “striking similarity” was not sufficiently compelling to prove access so

as to support element of copying).

244

See supra text accompanying notes 56-63.

245

See supra Part I.

246

See generally Vrana, supra note 7 (discussing how the law’s treatment of sampling as

247

See supra Part I.

248

See GOLDSTEIN, supra note 57, at 12:5 (describing how courts remain mindful of policy

concerns in applying the four factors, and how fair use can excuse an otherwise-infringing

use if the “social benefit” outweighs the loss to the copyright owner).

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130 B.U. J. SCI. & TECH. L. [Vol. 26.1

musicians. Music sampling is transformative.

249

Music sampling does not harm

the incentives or the economic livelihood of the copyright owners of sampled

works.

250

Music sampling is akin to appropriation art, a creative approach courts

have deemed fair use.

251

Music sampling adds to the pool of creative works.

252

Music sampling as fair use is better for musicians, and better for music fans.

Music sampling as fair use is better for music.

249

See supra text accompanying notes 187-93.

250

See supra text accompanying notes 215-21.

251

See supra Section II.B.1.

252

See supra Section II.B.