It’s Bigger Than Hip-Hop: Sampling and the Emergence of the Market Enhancement Model in Fair Use Case Law

Abstract

“Sampling” copyrighted works to create new expression has a rich history in creative culture, particularly in hip-hop music, a genre that values revision and recontextualization. However, courts are mixed on whether sampling should be considered fair use. Many courts have found that sampling harms the original artist’s ability to license copyrighted material, thereby diminishing the work’s marketability. But some courts recognize that sampling can enhance the market for the original work. The present study explores the tension between these opposing fair use models—what we call the “pure market substitute” and “market enhancement” models—currently percolating in lower courts. Through an analysis of cases involving hip-hop sampling and similar practices, we argue that the “market enhancement” model, which considers cultural and audience characteristics that impact marketability, better serves the goals of copyright law and should be more widely adopted. We further recommend that courts consider three factors when analyzing market impact in fair use sampling cases: provable effects of the sample on the market for the original work, the nature and duration of the original author’s market participation, and the similarity between markets for the original and secondary works.

Copyright, Transformativeness, and Protection for Internet Memes

“…Scores of legal battles have played out in U.S. federal courts in the last three decades involving sampling, a “practice of reconfiguring snippets of previously published works to create new forms of expression” (Fuller & Abdenour, 2019, p. 599), a method most commonly associated with music but applied in all types of creativity. The practice often encompasses a variety of unauthorized borrowing from cultural troves, including film, visual arts, and literature.…”

“…Some have viewed it as a harmful practice that interferes with the earning potential of original copyright holders and adversely affects them in the end. Others have championed opposite views, arguing that sampling enhances the original work because it gives it more visibility and constitutes free expression protected under the U.S. Constitution (Fuller & Abdenour, 2019). Creators of internet memes almost always seize someone else’s work to give birth to new expression, the way culture has unfolded since time immemorial (Hall, 1985).…”

“…Tasked with deciphering the legal boundaries between innovative creativity and piracy, U.S. courts have often relied on the legal standard of transformativeness—the degree to which a work that used previously created content transforms it into new meanings, thus forming an expression separate from the one it appropriates—to settle those debates. Transformativeness in remix culture, as Fuller and Abdenour (2019) argue, is tightly connected with the effects of the new content on the marketability of the original work. Re-worked compositions, they posit, compliment, rather than compete with, the original works they sample and transform, thus enhancing and augmenting, not diminishing, visibility and marketability.…”