70 Am. U. L. Rev. F. 227 (2021).
* Junior Staff Member, American University Law Review, Volume 70; J.D. Candidate, May 2022, American University Washington College of Law; M.A., Communication Studies, 2019, University of North Carolina at Greensboro; B.A. Communication Studies, 2016, University of North Carolina at Greensboro. I would like to express my sincerest gratitude to everyone who helped me complete the process of writing this Comment. I want to give a special thanks to my editor, Madeline Corkett, and my faculty advisor, Professor Llezlie L. Greene, for their in-depth advice and critique. I also want to thank the entire American University Law Review staff for their thoughtfulness, feedback, attention to detail, and enthusiastic, passionate approach to preparing this Comment for publication.
The copyright doctrine governing the creation, publication, and sale of sample-based music makes it devastatingly expensive for artists to clear the samples that they use in their music. Consequently, most artists, aside from established artists with access to the deep pockets of their record labels, simply cannot afford to produce and release sample-based music. Troubling legal precedents such as Grand Upright and Bridgeport Music have created an industry landscape that economically disadvantages sampling artists by giving unfair bargaining power to copyright owners. Copyright owners have used this bargaining power to reap the benefits of the creativity and ingenuity of the artists who sample their music.
Moreover, the legal structure of copyright law regarding sampling is disproportionately harmful to Black hip-hop artists, who popularized the music production technique. There are numerous examples of Black artists losing out on significant amounts of revenue due to copyright owners of the music they sample bringing legal action against them. However, there are a few solutions that, if implemented, could help to correct copyright law’s treatment of music sampling.
This Comment argues that first, the Supreme Court should address the circuit split between the Sixth and Ninth Circuits regarding the eligibility of de minimis defenses in sampling cases and find, in favor of the Ninth Circuit, that the de minimis defense is available in copyright infringement cases involving digital sampling. Additionally, Congress should enact a compulsory licensing system, similar to the system used for song covers, which would help to streamline the process of sample clearance, making the practice of sampling much more affordable for artists everywhere. Finally, Congress could create a new division within the U.S. Copyright Office that specializes in analyzing sample-based music to determine a just, fair, and equitable split between the sampling artist and the sampled artist.