In Print: Volume 89: Number 5
Sampling the Circuits: The Case for a New Comprehensive Scheme for Determining Copyright Infringement as a Result of Music Sampling
By John S. Pelletier
89 Wash. U. L. Rev. 1161 (2012)
Music sampling continues to be the linchpin of a variety of musical styles including rap, hip-hop, house, and dance music, and has even become prevalent in rock music. The practice of sampling involves taking pre-existing sound recordings and using portions of those recordings as elements in a new musical composition. The amount of the work sampled can range from taking the entire “hook” or chorus/refrain from a musical composition to smaller elements, such as a riff or even one or two notes or words.
Music sampling, as it pertains to copyright law and copyright licensing, is a real and current issue. As recently as November 3, 2010, the United States Copyright Office began taking comments, at the direction of Congress, as to whether copyright protection should be extended to pre-1972 sound recordings. Among the peripheral issues implicated by this potential extension was how such an extension might affect sampling of pre-1972 recordings. Moreover, one example that perfectly illustrates the current implications of sampling on copyright law is what one commentator calls “the Girl Talk dilemma,” referring to the mash-up artist Girl Talk. On November 15, 2010, Girl Talk made available downloads of his album All Day free of charge on the record label Illegal Art. This freely distributed album, which contains a high number of samples—none of which have been licensed—raises serious questions regarding the legality of this release. Upon first listen to the opening track, “Oh No,” I easily identified samples of Black Sabbath’s “War Pigs,” Ludacris’ “Move Bitch,” Cali Swag District’s “Teach Me How to Dougie,” Jane’s Addiction’s “Jane Says,” the Ramones’ “Blitzkrieg Bop,” and Missy Elliot’s “Get Ur Freak On,” just to name a few. In light of current industry practices, it is hard to imagine how Girl Talk could release such a record without raising questions as to whether his uses of these samples constitutes copyright infringement or fair use. While this is an extreme example of the use of sampling in contemporary music—as one commentator notes, Girl Talk’s work adds virtually no original content to accompany the samples of other artists’ work —it clearly illustrates the point that copyright infringement by way of music sampling is a current issue.