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I. INTRODUCTION
Copyright infringement cases regarding digital sampling are ubiquitous in U.S. copyright law litigation. Countless legal battles have been fought about unlicensed digital sampling. The Verve was famously sued by Mick Jagger and Keith Richards, as well as by their producer Richard Oldham for exceeding the scope of their license for use of an orchestral arrangement of the Rolling Stones’ The Last Time in Bitter Sweet Symphony. In 1989, almost a decade before this lawsuit, the Canadian Recording Industry Association and Michael Jackson’s management forced the confiscation and destruction of John Oswald’s plunderphonics-pioneering Plunderphonics on the basis of his sampling of Michael Jackson’s Bad in his sample-rich album (Holm-Hudson, p. 21). When using unlicensed digital sampling at a conventional quantity already exposes artists to risks of expensive litigation, plunderphonics- a genre predicated on unlicensed sampling taken to its extreme, musical quotation, and an exploration of creativity and originality in a constantly self-referential musical world- raises pressing questions about the place of digital sampling in copyright law.
One of those many questions is the extent to which fair use under the US Copyright Act 1976 and its attending jurisprudence can address the challenge of digital sampling in plunderphonics. To answer this question, I will first define digital sampling and plunderphonics and address some preliminary copyright issues related to these concepts, then consider the potential application of some elements of the fair use defense under section 107 US Copyright Act 1976 to plunderphonics.
II. DIGITAL SAMPLING, PLUNDERPHONICS, AND PRELIMINARY COPYRIGHT ISSUES
Digital sampling is the use of an existing recording of a musical composition in another (Szymanski, p. 299), often by altering the sample itself and integrating it into an original composition (Zucchino, p. 302). Sampling conflicts with the rights of various copyright holders. The copyright in the musical work itself- such as its written chords and lyrics- is owned by the sampled musician or third-party publishers to whom the rights to the musical composition have been assigned for licensing and promotion (Eckhause, p. 384). Copyright in the sound recording of the musical composition, however, is usually transferred to the musician’s record label or producer (Eckhause, p. 384). Both owners have exclusive rights to prepare derivative works of the material (17 USC, sections 106 and 114(b)). Although copyright owners can grant licenses for “flat-fee buyouts” of single lump-sum payments or a set royalty fee, artists often sample without obtaining licenses and take their chances of facing litigation (Szymanski, p. 293).
Plunderphonics is a genre that takes digital sampling to the extreme. First coined by John Oswald in his 1985 essay Plunderphonics, or Audio Piracy as a Compositional Prerogative, plunderphonics consists of unabashed musical piracy and extensive sampling of recognizable sounds to form a patchwork of referential sound samples. Unlike traditional digital sampling, plunderphonics pieces are almost entirely made of samples, like DJ Shadow’s groundbreaking 1996 Endtroducing album. Plunderphonics makes use of “plunderphones”, or blatantly plundered and “recognizable sonic quotes” from existing pieces, but adds new elements to these appropriated fragments by recontextualizing them and often adding a layer of meta-commentary to the sampled piece. Plunderphonics is overt and thus potentially more likely to be detected than traditional digital sampling. Artists in this genre rarely obtain licenses for their samples. This is done both as a practicality (ie., funding and time needed to obtain licenses for the hundreds of samples they need) (Dunbar, p. 194), and as a matter of principle (ie., the lack of licensing being part of the commentary plunderphonics provide on music) (Oswald, p. 5). This makes them particularly vulnerable among their digital sampling peers to copyright infringement lawsuits.
III. FAIR USE
The Copyright Act 1976 supersedes state law as regards copyright in works covered by the Act (Gorman, p. 865), including musical works and sound recordings (17 USC, sections 102a(2) and (7)). When artists make unauthorized use of a copyrighted sound recording and its underlying musical composition, fair use is a last defense against infringement after exhaustion of other available defenses (Africa, p. 1152). The (notably non-exhaustive) factors for determining fair use are “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work” (17 USC, section 107). Given their dominance in fair use cases (Beebe, p. 4) and particular relevance to digital sampling, only the first and fourth factors will be discussed in relation to plunderphonics.
III.A. Purpose and character of use
Campbell v Acuff-Rose Music, Inc. sets out courts’ main approach to the first factor of the fair use test. In one fell swoop, this case found that commercial use is not determinative in a finding against fair use (Campbell v Acuff-Rose Music, Inc., p. 570), and that the question of whether the work using the sample “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message” is the main concern of this factor (Campbell v Acuff-Rose Music, Inc., p. 579). Subsequent practice shows that this added value test emphasizes the promotion of the public policy goals of copyright (like furthering the progress of art and promoting new, original expression) by evaluating the transformation of both the content of the original work and of its context (Murray, p. 261). The greater the added value of the work, the less the commercial nature of the work matters in finding fair use (Cariou v Prince, p. 708). Indeed, the work should primarily use the copyrighted work “as a raw material [to create] new information, new aesthetics, new insights and understandings” (Castle Rock Entertainment, Inc. v Carol Publishing Group, Inc., p. 143).
Arguably, plunderphonics does precisely this. John Oswald’s discography for example- including his revolutionary plunderphonics album somewhat less creatively named Plunderphonics- uses a broad variety of tools and editing techniques to alter the countless samples used. Oswald speeds up and slows down samples, manually cuts up and collages analog tapes, and layers fragments upon fragments to create music entirely built of samples. His work raises questions about musical quotation and whether the “original” music he has sampled exists free from influence from other artists. Even the recognizability of the sampled “plunderphones” should not bar a finding of fair use: here, the listener’s recognition of the quote and renewed attention to the new material is a transformation of the context of the original work (Holm-Hudson, p. 17). Digital sampling and thus plunderphonics par excellence can be argued to be a form of post-modern artistic commentary, deliberately selecting the most intriguing musical fragments and recontextualizing or altering them in a new composition (Self, p. 352). In his album Endtroducing alone, DJ Shadow melds funk, jazz, hip-hop, psychedelia, and more in a meticulous and exciting mosaic to create something entirely his own- his work is transformative and distinct from the samples that it consists of. In his own words, the process of plunderphonics consists of “taking little pieces from here, adding it to little pieces from there [...] and making something totally new out of it.” Sampling and plunderphonics in particular have been hailed as creative and as inspirations for new forms of expression (Schietinger, p. 241).
Despite the strong argument for plunderphonics’ added value, courts remain hostile to digital sampling. The first copyright infringement case concerning samples found infringement through a mere looping of 10 seconds of music from Alone Again (Naturally) with rap overlayed on the track (Falstrom, p. 362). The court ominously warned samplers that “thou shalt not steal” (Grand Upright Music Ltd. v Warner Bros. Records, Inc., p. 183). The more recent 2005 6th Circuit Bridgeport decision (that any unlicensed sampling is automatically copyright infringement) (Bridgeport Music, Inc. v Dimension Films, pp.798-99) serves as a grim reminder that the creativity and artistic value of digital sampling and by extension plunderphonics remains somewhat misunderstood in copyright law (Schietinger, p. 239).
III.B. Effect of the use upon the potential market for or value of the copyrighted work
The fourth fair use factor concerns “whether unrestricted and widespread conduct of [the] sort engaged in by the defendant […] would result in a substantially adverse impact on the potential market for the original” (Campbell v Acuff-Rose Music, Inc., p. 590). This assessment partly relies on the first factor and the “transformativeness” of the sample’s use. As regards digital sampling, a distinction can be made between sampling that constitutes direct market substitution for the original work, and market harm beyond direct substitution (Corrado, pp. 197-8). Market substitution is almost certain where commercial use “amounts to mere duplication of the entirety of [the] original,” or where the sample is insufficiently transformative (Campbell v Acuff-Rose Music, Inc., p. 591). More interestingly, when the use is transformative “market substitution is at least less certain, and market harm may not be so readily inferred” (Campbell v Acuff-Rose Music, Inc., p. 591). Notably, courts have failed to consider the potential economic benefits digital sampling may have on the market (whether directly or indirectly) for the sampled piece, especially where the original piece is relatively obscure (Duhl, p. 671). The language of section 107 US Copyright Act 1976 does not limit courts to only checking negative market effects or decreases of the value of the original work, and yet application of this fourth factor exclusively focusses on market substitution and market harm (Fagundes, p. 362). In the seminal Campbell v Acuff-Rose Music, Inc. case, the Supreme Court examined the possibility of a parody rehashing Oh, Pretty Woman being subject to a copyright infringement claim. The Court had no consideration of the possibility that the parody could have had a positive market effect on the original song, which at the time of litigation had been released decades ago (Fagundes, p. 365). In keeping with this un-nuanced view of the role of digital sampling, this case also marked the first mention of “market harm” specifically instead of “market effect” as set out in section 107.
As regards direct market harm through market substitution, even the rare plunderphonics that are not sufficiently transformative are highly unlikely to push listeners to favor the sampling piece rather than the original; such inclusion would thus likely have little to no negative effect on the sale of songs (Harper, p. 424). Indeed, quite the contrary is probably the case- sampling can revive interests in sampled works (Arora, p. 171). A study of the over 350 songs sampled in Girl Talk’s All Day album (a notable work in plunderphonics) found that the vast majority of the copyrighted songs sampled sold better in the year after being sampled compared to the year before the album’s release (Schuster, p. 444). Particularly in the case of plunderphonics, it seems as though the fourth factor of the fair use test’s focus on negative market effects leaves judges with a blinkered view of how this factor should be applied to extensive digital sampling, especially given the genre’s potential to have positive market effects.
As regards indirect market harm beyond substitution, however, owners only need to prove that if the challenged use became widespread, “it would adversely affect the potential market for the copyrighted work” (Sony Corp. of America v Universal City Studios, Inc., p. 451). Copyright owners could argue that a plunderphonics artists’ unlicensed use of a snippet of the original work may have a negative impact on the marketability of their licensing schemes, and thus tilt this fourth factor against the finding of fair use (Harper, p. 435). Because sound sampling- in the form of licensing schemes and royalty payments- serves a commercial purpose, courts may assume the potential for economic harm for the copyright holder (McGiverin, p. 1738). In an over-saturated marketplace with short consumer attention spans, the economic value of an interesting sample- particularly where this “plunderphone” is recognizable and blatant- is undermined by unlicensed appropriation (McGiverin, p. 1738). There is a risk in this factor of erring towards overprotection of copyright owners’ interests to the detriment of artistic expression and development through digital sampling (Arase, p. 21).
IV. CONCLUSION
Digital sampling only hit mainstream popularity in the late 1980s (Eckhause, p. 379), long after the enactment of the US Copyright Act 1976. The flexibility of the fair use doctrine, however, allows for the balancing of protecting copyright holders’ exclusive rights to production and authorization of derivative works, with policy considerations of fostering new creative modes of expression and encouraging the progress of art (Murray, p. 261) through appropriate use of unlicensed digital samples. The existing body of copyright law can reasonably be interpreted to accommodate the artistic value of transformative digital sampling in the form of plunderphonics, which is particularly important given the sheer impossibility of plunderphonics artists obtaining and paying for the hundreds of licenses they may need for a single album. However, as the above analysis clearly indicates, some courts’ dismissal of the artistic value of digital sampling, as well as unnecessarily constrained analysis of the economic effect of such sampling risk leaving digital sampling and plunderphonics out of the loop of the fair use doctrine.