English: Mary J Blige

Mary J. Blige is one of many artists who both samples and has been sampled, leading to legal complications | Photo Credit: Wikipedia

The ‘fair use’ provision of copyright law is sometimes seen as a “get out of jail free” when it comes to artists sampling the work of others.

Samples are prominently used in certain styles of music, like EDM and hip hop, meaning a lot of work for lawyers and judges charged with unraveling the tapestry of any individual song.

Although sentiment at the House Judiciary IP Subcommittee discussing the scope of fair use across all creative industries leaned largely to keeping the laws as they stand, sampling is one area that gives pause for thought.

The most recent case involving Frank Ocean and the TufAmerica record label sees the latter suing the singer for his use of a snippet from a Mary J. Blige track, “Real Love.” The label owns a part of that song, but the original from which the Blige song takes its sample is now four layers deep, including Ocean’s version, making it more difficult to divide up ownership. This can lead to aggrieved parties suing even when the sampler believes they have arranged the appropriate license, as Kanye West found out with a sampling lawsuit over his song “Bound 2” late last year.

Much of the fair use provision centers on how “transformative” the new work is following its inclusion of an original piece. As sampling culture tends to take many original sections and fuse them all into a new piece, often with original lyrics and new beats, it tends to satisfy that requirement. Add to this the degrees of metamorphosis that any given sample has been through, plus the precedent set by other uses that have come before it, and the waters from which fair use must be filtered become even more muddied.

In the Ocean example, TufAmerica also has a history of litigious behavior, proactively seeking out potential settlements for unlicensed samples that fall into the gray area of fair use. Big names are rarely spared – perhaps they’re even sought out due to their deep pockets – as Jay-Z and Beastie Boys have both been on the receiving end of legal action from the label. Often it’s easier to settle than to fight a lengthy and expensive court battle, especially for artists whose style is rooted in the use of sampled material.

Sampling is clearly just one element of the fair use discussion. If a majority of the creative community feels that the provision does its job just fine as is, those who rely on samples and their complicated licensing arrangements will need to accept that. It does further demonstrate the fine balance that copyright law attempts to maintain, however, to keep creativity thriving while protecting the rights of original works.


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