By Bruce Fan
Sting recently sued up-and-coming rapper Juice WRLD for copyright infringement because Juice WRLD’s hit song “Lucid Dreams” used samples from Sting’s “Shape of My Heart.” Sampling occurs when composers “manipulate a recorded fragment of sound from a pre-existing recording and then use it as a part of a new composition.”[1] Juice WRLD’s producer, Nick Mira, tweeted that Sting and his team have taken 85% of the profits from “Lucid Dreams.”[2] Although Juice WRLD will only receive 15% of the profits, he has taken a more positive stance, stating “the song impacted too many people in a good way for me to be upset over it.”[3] This uneven profit split between Juice WRLD and Sting demonstrates how current case law has impacted hip hop artists general in favor of the more established artists in their access to sampling when creating new music.
Hip Hop dominates today’s music industry; however, its heavy reliance on sampling creates legal implications that may force Courts to re-evaluate how best to address copyright issues without encumbering creators of new music. This article aims to address current case law behind sample licensing—namely, the Compulsory Licensing System—and how its reform can better reflect the direction music’s culture and technology are developing. Proposed reforms of the Compulsory Licensing System range from creating a fixed-customary license rate that sampling artists pay regardless of the copyright owner’s consent of use, allowing sampling artists to earn cost deductions for directing traffic to the original copyright owner, and more.
The Rise of Hip Hop (and With It, Digital Sampling)
In today’s market, the combined hip hop and R&B markets have pulled ahead of Rock as the top genre in terms of music consumption in the United States.[4] Indeed, “R&B and hip-hop are now responsible for 25.1% of all music consumption in the U.S., while rock claims 23%.”[5]
However, with the rise of Hip Hop also comes increased sampling of other people’s songs. Sampling has always been embedded in the basis of Hip Hop, “it started that way with Kurtis Blow and the Sugarhill Gang in the late 1970s.”[6] When hip hop first started and used “pieces of songs as the basis for new songs, copyright holders were spooked.”[7] Although musical references have always been a part of music, the digital isolation of actual bits of recorded music offended record companies and led to issues of copyright infringement.[8]
How Sampling Without a Proper License Violates Copyright law
Music copyrights have two forms: musical compositions and sound recordings. “A musical composition copyright applies to the notes, chords, melodies, and other underlying structures of a piece of music.”[9] A sound recording, on the other hand, involves the “particular performance of the singers and instrumentalists captured on vinyl, tape…or other formats.”[10] As a result, sampling infringes on both the musical composition and sound recording copyrights because the song’s underlying notes are taken, as well as a fragment of the sound recording from a MP3 version.[11]
How Courts Have Ruled on Sampling
In Grand Upright Music, Ltd. v. Warner Bros. Records., Inc., the Court found the use of a sampling to be a violation of copyright law. In this case, rapper Biz Markie incorporated a portion of Gilbert’ O’Sullivan’s song in his composition without acquiring a sample license.[12] Additionally, the Sixth Circuit in Bridgeport Music, Inc. v. Dimension Films established that any taking from a preexisting recording constitutes infringement.[13] Specifically, a sample involving a two-second guitar solo with the pitch lowered and looped for 16 beats was considered infringement.[14] As a result, artists incorporating samples in their music must license those samples.[15] The Court largely limited this restriction to copyrighted sound recordings and did not apply it to situations where the infringer independently created a sound recording that mimicked the copyrighted work.[16] Additionally, the market would control prices charged for sampling sound recordings.[17] If the copyright holder charged excessive license fees, the potential sampler would instead create a non-infringing alternative.[18] Lastly, the Court justified its position stating that it was not possible for an artist to inadvertently infringe on a sound recording’s copyright when engaging in digital sampling.[19] These two cases set precedent on how Courts would crack down on the unlicensed sampling of copyrighted material; thereby, leading many artists to license samples under the Compulsory Licensing System to avoid unnecessary legal expenses.
The Compulsory License System
The compulsory licensing scheme requires a more recent artist to pay a proper licensing fee to use another artist’s work if the latter’s recording has been released, limiting some of the problems described above.[20] However, this solution imposes its own set of problems.
The current license scheme allows copyright owners the right to refuse an artist’s request to use their material and thus gives copyright owners unequal bargaining power.[21] Indeed, “an owner might agree to a proposed use, but then charge an outrageous licensing fee, disproportionate to the material requested.”[22] In addition, the artist who is sampling must seek the licenses from both the owner of the sound recording copyright as well as the owner of the musical composition copyright.[23]
The current license scheme allows copyright owners the right to refuse an artist’s request to use their material and thus gives copyright owners unequal bargaining power. Indeed, “an owner might agree to a proposed use, but then charge an outrageous licensing fee, disproportionate to the material requested.”
Musicians Supporting the Licensing System
While some may find the Compulsory Licensing system unfair, others support it. For the artists who support the Compulsory Licensing system, their logic is simple; one should pay for the samples they use. Indeed, Hip-Hop Group De La Soul’s Posdnuos reasons, “if you sample someone, you should pay for it…they made it.”[24] Furthermore, other artists justify paying for samples because these samples contain recordings of highly skilled artists who have spent years perfecting their craft. As Bobbito Garcia states, “if you were sampling Pee Wee Ellis…an incredible jazz musician…you’re sampling such a sophisticated level of musicianship.”[25] One of Kanye West’s managers, Kyambo Joshua, views sampling just as a regular expense of the business.[26] Indeed, sampling can be viewed as a smaller expense compared to other recording expenses such as booking “top-notch session musicians, or record[ing] in premium studios, or fly[ing] to certain locales in order to capture a certain feeling.”[27]
Musicians Arguing for Reform
On the other hand, some artists disagree and have called for the reform of the Compulsory Licensing system. Artists such as John Oswald or Negativland often violate the licensing system because they “(1) sample lots of artists who are very hard to track down, making transaction costs of licensing impossibly high; (2) tend to irritate the artist they sample, making refusal of permission quite likely; and (3) are [not] making much money” from making remixes.[28]
Of course, not all sampling should be free. Indeed, Puffy Combs’s sample of “Every Breath You Take” did not transform the original work a great deal before using it in his own music.[29] However, some samplings that are original and expressive in a different way than the original are not likely to harm the sales of the original work, limiting fears that the sampled work reduces the primary artist’s potential profit.[30] Indeed, whether or not the sampling work harms the sales of the original work is important because if the composition does not harm sales of the original work and rather further bolsters the original composition’s popularity, then the sampling composition should not be penalized for substantially transforming the work. Artists argue that such sampling should be free under fair use grounds or under First Amendment grounds.[31] Many others argue that the law should move towards fair use to adapt to the way technology and culture are developing.[32]
Potential reform of the Compulsory Licensing System can be best addressed by creating a progressive scale in the rate a sampling artist must pay the copyright-holder for use of the copyrighted sample. The less transformative the use of a sample is, the higher the statutory rate the sampling artist must pay. A judge aided with music expert testimony will determine how transformative the work is in comparison with the sample. By having a system in place where a copyright holder cannot simply charge outlandish licensing fees or deny other musicians from sampling their music, up-and-coming artists enter on an equal-playing field when it comes to negotiating. Indeed, reforming the Compulsory Licensing System in such a way allows artists to not only express themselves under the First Amendment, but also facilitates cultural progress as dictated under the “Promote the Progress” clause of the Copyright Act.
Potential reform of the Compulsory Licensing System can be best addressed by creating a progressive scale in the rate a sampling artist must pay the copyright-holder for use of the copyrighted sample. The less transformative the use of a sample is, the higher the statutory rate the sampling artist must pay.
By having a system in place where a copyright holder cannot simply charge outlandish licensing fees or deny other musicians from sampling their music, up-and-coming artists enter on an equal-playing field when it comes to negotiating. Indeed, reforming the Compulsory Licensing System in such a way allows artists to not only express themselves under the First Amendment, but also facilitates cultural progress as dictated under the “Promote the Progress” clause of the Copyright Act.
Weighing the Costs and Benefits
As Hip Hop continues to shape how artists create music with digital sampling, the legal standards should accordingly reform the current Compulsory Licensing System. The advancement of technology greatly increases the individual user’s access to copyrightable music, files, documents, movies, and more. As a result, up-and-coming musicians increasingly use copyrighted samples to create their songs. In fact, sampling has become a multi-genre compositional technique for pop, rock, and electronic—no longer solely limited to hip hop.[33] However, under today’s Compulsory Licensing Scheme these aspiring musicians often find themselves subject to unequal bargaining power where the copyright holders of the sample dictate the licensing fee. The law must decide the best balance when it comes to protecting copyright-holders without impinging upon the creative expression of up-and-coming artists.
[1] Jeremy Beck, Music Composition, Sound Recordings and Digital Sampling in the 21st Century: A Legislative and Legal Framework to Balance Competing Interests 3 (2005).
[2] Juice WRLD Responds to Sting’s Alleged Lawsuit over “Lucid Dreams”, ALTERNATIVE PRESS (2018), https://www.altpress.com/news/juice-wrld-responds-sting-lawsuit-lucid-dreams/ (last visited Mar. 17, 2019).
[3] Id.
[4] Hugh McIntyre, Report: Hip-Hop/R&B is the Dominant Genre in the U.S. for the First Time, FORBES (July 17, 2017), https://www.forbes.com/sites/hughmcintyre/2017/07/17/hip-hoprb-has-now-become-the-dominant-genre-in-the-u-s-for-the-first-time/#753ee1355383.
[5] Id.
[6] Daniel Spielberger, Deborah Mannis-Gardner Discusses the Difference Between Influence & Theft HipHopDX, HIPHOPDX (2018), https://hiphopdx.com/interviews/id.3080/title.deborah-mannis-gardner-discusses-the-difference-between-influence-theft# (last visited Mar. 17, 2019).
[7] Anthony Wing Kosner, Study Shows that Hip Hop Sampling Boosts Sales of the Songs Sampled, FORBES (Oct. 18, 2013), https://www.forbes.com/sites/anthonykosner/2013/10/18/study-shows-that-hip-hop-sampling-boosts-sales-of-the-songs-sampled/#7f669766213c.
[8] Id.
[9] Kembrew McLeod & Peter DiCola, Creative License: The Law and Culture of Digital Sampling 75 (2011).
[10] Id. at 76.
[11] Id.
[12] See generally Jeremy Beck, Music Composition, Sound Recordings and Digital Sampling in the 21st Century: A Legislative and Legal Framework to Balance Competing Interests 13 UCLA ENTM’T L. REV. 1 (2005).
[13] Id. at 13.
[14] Id. at 13.
[15] Id. at 20.
[16] Michael W. Schuster, Fair Use, Girl Talk, And Digital Sampling: An Empirical Study of Music Sampling’s Effect on the Market for Copyrighted Works 458 (2013).
William M. Schuster II, Fair Use, Girl Talk, and Digital Sampling: An Empirical Study of Music Sampling’s Effect on the Market for Copyrighted Works, 67 OKLA. L. REV. (2015), http://digitalcommons.law.ou.edu/olr/vol67/iss3/2.
[17] Id.
[18] Id.
[19] Id.
[20] Beck, supra note 12 at 20.
[21] Id. at 19–20
[22] Id. at 19.
[23] Id. at 19–20.
[24] Kembrew McLeod & Peter DiCola, Creative License: The Law and Culture of Digital Sampling, 87 (Duke Univ. Press, 2011).
[25] Id.
[26] Id.
[27] Id.
[28] Paul D. Miller, Sound Unbound: Sampling Digital Music and Culture, 144 (MIT Press, 2008).
[29] Id. at 144–45
[30] Id.
[31] Id.
[32] Id.
[33] Thomas P. Wolf, Toward a “New School” Licensing Regime for Digital Sampling: Disclosure, Coding, and Click-Through, 22 STAN. TECH. L. REV. N1 1, 29 (2011),
