Envisioning a Compuslory-Licensing Solution for Digital Samples Through Emergent Technologies

Christopher R. Sabbagh - School of Law, Duke University

-- Sampling—the practice of taking part of a recording, potentially altering it, and using it in a musical work—is popular in genres like hip-hop and rhythm and blues. When sampling became widespread in the 1990s, the artists whose recordings were being sampled turned to the United States court system to receive compensation for the use of their works. These musicians rooted their challenges in copyright law, arguing that sampling violated the copyrights they held in their music. For the most part, these challenges were successful, culminating in a decision from the United States Court of Appeals for the Sixth Circuit, Bridgeport Music, Inc. v. Dimension Films, that invoked the well-known biblical phrase “thou shalt not steal” as it lambasted sampling.

It took several years until another appellate court, the Ninth Circuit, ruled to the contrary in VMG Salsoul, LLC v. Ciccone. Sampling, the Ninth Circuit held, does not violate copyright law as long as the sampler takes only a “de minimis”—or legally insignificant—portion of the copyrighted work. The Ninth Circuit’s decision is consistent with the primary purpose underlying copyright law: to promote creativity. Indeed, sampling can be very creative, as exemplified by De La Soul’s album 3 Feet High and Rising, a cultural phenomenon that incorporated over seventy samples in its tracks.

Despite the Ninth Circuit’s ruling, the uncertainty created by this circuit split continues to discourage sampling. Small artists cannot pay the unreasonably high royalties that are required to sample and often sample illegally. Relatively well-known artists are hamstrung even further, as they must pay high sampling costs to engage in the practice. Then, even if these artists produce commercially successful and critically acclaimed albums, sampling costs can completely erase any profit derived from their album’s sales.

Arguably the best solution to this problem is a compulsory-licensing system, which is not a stranger to copyright law. A compulsory license would automatically grant an artist the right to sample a song—without requiring approval of the copyright owner—upon the satisfaction of certain conditions. The merits of a compulsory-license system for digital samples have been widely debated by legal academics. What these scholars often ignore is the current impracticality of implementing such a system.

Fortunately, as technology develops, the practicality of implementing a compulsory-licensing system increases. Three emergent technologies in particular—the Music Modernization Act (“MMA”) database that will track copyright information for musical works, blockchain, and smart contracts—appear especially promising. My paper, “Envisioning a Compulsory-Licensing System for Digital Samples Through Emergent Technologies,” hypothesizes a system that would work in the following way:

An artist who wishes to sample would navigate to a website and search for the song that she wishes to sample. The website would pull relevant song results from the MMA database. The artist would then locate the song she wishes to sample and initiate a transaction. To start the transaction, the website would ask the sampler to provide information about where her song can be accessed. In response, she would input links or other information that identify her song’s location on digital streaming services, like Spotify, and physical-sale companies, like Best Buy. A standard blockchain-based smart contract would then be created, granting her the right to sample the song in exchange for the established compulsory fee.

Over time, the smart contract would connect, via APIs, to the streaming services and physical-sale companies to track how many times the song is digitally streamed or sold in physical form. Each one of these occurrences would trigger the smart contract, initiating the required compulsory-fee transaction from the sampling artist to the sampled artist.

While currenlty a hypothetical, a similar system could one day allow all artists to follow the advice of hip-hop’s most prominent modern-day sampler: “So if you gon’ do it, do it just like this.”

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