MUSICAL QUOTATION AND CULTURAL FACTS:

DIGITAL SAMPLING AND THE FUTURE OF COPYRIGHT

Ari Allen

Georgetown University Law Center

I. Introduction

The arts and sciences have always progressed on the shoulders of giants. Whether

a technological innovation, or a new song, creative endeavors usually involve borrowing

from the past, and then adding something new. Innovators and artists often deconstruct

previous works, and construct new ones. Indeed, “in order for art to advance, artists must

be able to build off of previous works.”1

Technological progress has streamlined this creative process and has

fundamentally reframed the debate surrounding the legal context of creativity and its

resulting property rights. Indeed, “though sampling technology first began to develop

nearly a century ago, shortly after the advent of recording technology, the vast potential

of sampling as a tool… was not realized until the increased prevalence of digital

technologies in the 1970s.”2 The digital revolution has thus brought the very process of

creativity to the forefront of a legal debate gone virtual and, consequently, metaphysical.

“Sampling” is the term used when speaking of using digital technologies to

“sample” basic elements of previous recordings into new ones, in new configurations.

Indeed, “the entire genre of hip-hop is essentially built on sampling,”3 although “the

practice of integrating samples into new musical compositions developed with the

emergence of hip-hop deejays in the 70s.”4 Of course, even before digital technologies

were available, “manual sampling” was a common creative practice – usually called

“musical quotation.” Similarly to how I quote, cite and mash-up outside sources into this

paper, musicians borrow from and reintegrate musical phrases into new works. All of
                                                                                                               
1
Michael Allyn Pote, “Mashed-Up In Between: The Delicate Balance of Artists’ Interests Lost Amidst the
War on Copyright,” 88 N.C. L. Rev. 639, 652 (2010).
2
Id. at 643.
3
Id. at 644.
4
Id.

1
this however, begs the fundamental question: Who is doing the creating around here?

This is a primary question of the remix and mashup culture that we presently live in. Is

music worth protecting if the artist needs not pick up a musical instrument? Many would

say that this type of art is “a fundamental failure of imagination,”5 or “just crap”6 that is

“underselling the talents that young people have.”7 This paper will argue that all music is

worth protecting, and that the bias against the remix and mashup culture is merely a result

of a fundamental misunderstanding of revolutionary technological change coming to

blows with outdated intellectual property regimes. While opponents note that “the entire

process of sampling songs to mashup involves merely a modest investment and a few

minutes,” this very statement shows that there is a fundamental misunderstanding by

legal scholars who attempt to understand this emerging art form. It also makes us wonder

whether these scholars have ever actually sat down with a mashup artist and watched the

“modest investment” they put into the work. If this observation actually occurred,

scholars would likely find that the investment, especially of labor, is not so modest in

most cases.

II. Constitutional Foundations

The source of copyright law begins in Article I of the United States Constitution:

“The Congress shall have Power… To promote the

Progress of Science and useful Arts, by securing for limited
Times to Authors and Inventors the exclusive Right to their
respective Writings and Discoveries.”8

                                                                                                               
5
Lawrence Lessig, Remix: Making Art and Commerce Thrive in the Hybrid Economy, 90-92 (2008).
6
Id.
7
Pote, at 653.
8
U.S. Const. art. I, § 8, cl. 8.

2
 Without very much instruction or specificity, the Constitution instructs all future

legislators to promote progress. Of course, its scope is limited – to the entire library of

human knowledge, industry and creativity. And of course, it does give some instruction:

intellectual property can be granted protection for any time spanning less than perpetuity.

However, other than these decorative constraints, society has a relatively blank slate on

which to create the laws that govern creativity itself.

The United States “primarily takes an economic approach to copyright law,”9

thereby “granting authors the exclusive rights to reproduce their works,”10 so as to give

“an incentive to create.”11 The argument is that the “encouragement of individual effort

by personal gain is the best way to advance public welfare through the talents of

authors.”12 However, “the ultimate objective in encouraging the creation and

dissemination of works of art is for the public to benefit from those works by having

access to them and being able to use them.”13 For this reason, digital technologies and

the Internet should be viewed as among the greatest innovations in encouraging “the

Progress” of the arts and sciences. Unfortunately however, the fruits of the Internet have

not always been viewed in such light. The music industry (established artists and

property owners) have “pushed for greater control of works” in the age of the Internet –

and so, it is unclear whether the very backlash against the Internet as a platform for music

distribution has stunted the very industry that it should have promoted. Indeed, only now

is it becoming a widespread practice to legally obtain music over the Internet. One thing

is particularly clear however: the backlash against digital recording technologies has led
                                                                                                               
9
Pote, at 647.
10
Id. at 648.
11
Id.
12
Id.
13
Id. at 650.

3
to the ascription of a widespread perception of illegitimacy to an entire generation of

emerging artists. One author has gone as far as to say that “they contain no original

material.”14 However, of course, when dealing with the mere reproduction of waveforms

and digital recordings, the organization and configuration of a group of samples is as

“original” as the borrowed recordings themselves – it is merely a new expression of what

“originality” is. In this sense, these emerging artists are not only creating new works, but

also recreating the very definition of creativity itself. The remainder of this paper will

focus on how the courts have dealt with these artists. Specifically, this paper seeks to

note the courts’ widespread failure in attempting to understand this new postmodern

understanding of creativity.

II. Fair Use

Under 17 U.S.C. § 107, certain limitations apply to the exclusive rights held by

copyright owners. Specifically, infringement may be “fair” in the light of certain

circumstances. Indeed, for the mashup culture, this type of use may prove key in

legitimizing itself as a legal art form. The purpose of fair use is to provide flexibility in

copyright law when it would “stifle the very creativity which [it] is designed to foster.”15

Four factors are weighed in considering a fair use defense: (i) the purpose and character

of the use (e.g., commercial or non-profit educational use); (ii) the nature of the

copyrighted work; (iii) the substantiality of borrowing from the preexisting work; and (iv)

                                                                                                               
14
Id. at 646.
15
Iowa State Univ. Research Found. Inc. v. Am. Broad. Cos., 621 F.2d 57, 60 (2d Cir. 1980).

4
the effect of the use on the potential market of the preexisting work.16 Each of these

factors will be explored below.

i. Purpose and Character of Use

The question of the “purpose and character” of the use turns fundamentally on

whether the new work “adds something new, with further purpose or different character,

altering the first with new expression, meaning, or message.”17 However, this definition

of a “transformative use” has been construed narrowly. For example, the Court has held

that satire is not a transformative use, while parody is. The distinction is set out as

follows: “parody must target the original, and not just its general style, the genre of art to

which it belongs, or society as a whole.”18 This is a fatal limitation for mashup mixers,

who are generally not parodying the song (e.g., negative commentary), but are rather,

building on the appreciation for that song, and integrating it into new forms of expression

(positive commentary). It is unclear why the use needs to be critical of the original work

in order to be considered “fair use,” under the “transformative use” definition. It would

seem, especially when considering the balance between existing and emerging artists,

that emerging artists should not be confined to criticism, but rather, encouraged to create.

To limit creativity to criticism seems unnecessary and unwise in light of the balance

copyright law attempts to provide. Using previous works as an “ode to those songs”19 or

“to make cultural references”20 is considered a mere “mildly transformative” use –

                                                                                                               
16
Pote, at 669.
17
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994).
18
Id. at 597.
19
Pote, at 674.
20
Id.

5
although, courts may find in favor of fair use if there is a substantial benefit to the public

from the secondary work.21 Usually however, this is not the case.

This element of the “fair use” test however, is not limited to the transformative

character of the work, but also to the question of whether the work was produced for a

commercial purpose. This debate hinges on one fundamental question: “the crux of the

profit/nonprofit distinction is merely whether the user stands to profit from exploitation

of the copyrighted material without paying the customary price.”22 The argument follows

that mashup artists appeal to the audience’s immediate “sense of nostalgia,” and are thus

exploiting works that are already good and marketable – a classic case of unjust

enrichment. However, many works do not seek to exploit preexisting works, and rather,

merely use them as a form of expression. DJ Danger Mouse’s “Grey Album” – a mashup

of the Beatles’ “White Album” and Jay-Z’s “Black Album” – is a good example of this,

as the new work was widely disseminated on the Internet for free. We should be careful

whether such noncommercial works should be restricted, especially when the public

benefits so greatly from them (evidenced by public demand – hundreds of thousands of

downloads on release-day alone).

ii. Nature of the Copyrighted Work

This element is generally underplayed in analyzing fair use claims. It is my goal

to revitalize this element as crucial to fair use analyses. The primary distinction in the

nature of copyrighted works is whether the work is “creative” or “factual.” Protecting

                                                                                                               
21
Id.
22
Harper & Row, Publishers Inc. v. Nation Enters., 471 U.S. 539, 562 (1985).

6
creative works is “closer to the core of intended copyright protection,”23 while factual

works suggest a greater likelihood of fair use.

Generally this element is written off as irrelevant in a mashup context – mashups

are mashing up creative works. However, when the creative/factual dichotomy is viewed

as a spectrum, this element becomes less determinate. Indeed, while “All Along The

Watchtower” was certainly a creative work when it was first released, over the years (and

after many derivative cover versions), the song seems to have become a form of “cultural

fact.” As a result, I suggest that courts reexamine the fair use test in this light. The test

for this element would then proceed as follows: “Is the copyrighted works so ingrained

into the fabric of musical culture that its quotation cannot dilute its popularity as a

creative work?” If this question were asked, I believe we could find many successful

musical works that, after enjoying decades of commercial success, have become such

significant cultural artifacts – or cultural “facts” – that their quotation is nearly inevitable

in one form or another. Whether digital sampling is the method by which these songs are

quoted, should be irrelevant. We must not penalize artists for utilizing the most current

technologies available to them. Culture is always commenting upon itself – and as

explored earlier, these comments should not be limited to criticism. Thus, this element

(“nature of the copyrighted work”), in conjunction with the first element (“purpose and

character of use”) helps to distinguish free expression and social commentary from mere

rip-off. If a cultural fact is being utilized in a noncommercial context and for expressive

purposes, an artist should not be held liable for infringement.

                                                                                                               
23
Campbell, 510 U.S. at 586.

7
 iii. Substantiality of Borrowing

In the past, this element has been analyzed arbitrarily. What constitutes

“substantial” borrowing is certainly a subjective question – but when the court attempted

to frame it objectively, it failed miserably. For example, Bridgeport Music, Inc. v.

Dimension Films24 held that the sampling of “three notes” could constitute copyright

infringement. This absurdly arbitrary test was an attempt by the court to turn a subjective

element that would be analyzed on a case-by-case basis into an objective bright-line rule

for all future analyses. However, it goes without saying that applying objective tests to

creative, and ultimately, subjective works is a fundamental mistake. The court was

grasping at putting an end to a debate that never will, and never should end. The limits

imposed upon the substantiality of borrowing from previous works must be constantly

reevaluated and reformulated as society comes up with new ways of creating works, and

culture decides on new types of works that are worth listening to.

iv. Effect of Use on the Potential Market of Underlying Works

The final element of the fair use test shines a light on the economic approach that

the United States has taken in instituting copyright law. This question is fundamental to a

fair use claim. In order to prevent unjust enrichment, the court asks whether the new

work “usurps or substitutes for the market of the original.”25 Of course, if my suggested

analysis for the second element of fair use (“the nature of the copyrighted work”) were

adopted, this element would hardly seem to matter. If a work has already become a

“cultural fact,” then either the potential market underlying that work would be considered
                                                                                                               
24
Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005).
25
Castle Rock Entm’t., Inc. v. Carol Publ’g Group, Inc., 150 F.3d 132, 145 (2d Cir. 1998).

8
sufficiently saturated, or so sacred that nothing could compete with the original. A

sampling of a few chords from a great Beatles song will not steer people away from

buying Beatles albums. Generally, the effect is likely the opposite, reigniting a passion

for their music, and boosting sales through promotion by musical quotation.

Defining the scope of a market and whether a new work constitutes a substitute is

extremely difficult. This is seen in many fields of law – from antitrust to intellectual

property. As a result, it might be best that we find new ways to analyze a market, and

more importantly, how a market matures. The scope and potential of a market transforms

over time, and especially in the case of “cultural facts,” the necessity of a market may

disintegrate entirely, as the work gains a symbolic stature of greatness that far supersedes

the importance of the underlying market itself. Indeed, just as no entrepreneur would be

discouraged from starting a business out of fear of antitrust action (indeed, the

entrepreneur would hope to reach a point of such stature), no artist would be discouraged

from creating a work out of fear that it will become so popular that somebody in the

future would sample it. This is an irrational clinging to property rights where they are not

needed – both in the present, and as an ex-ante incentive.

III. Beyond Fair Use: Statutory Licensing Regimes

Currently, musical compositions can be publicly performed by nearly anyone, so

long as a statutory royalty is paid. This has streamlined the process of performing cover

songs, and has allowed for broad access to creative works by the public. Of course, there

is a difference between a musical composition and a sound recording. Sound recordings

are not afforded the same statutory scheme. This section briefly explores whether it is

9
time to devise one. The economic argument for providing musical compositions with a

statutory licensing scheme arose out of the realization that such works have a near zero

marginal cost for each additional unit produced. As a result, to prevent holdouts that

interfere with the general welfare of music performers and listeners, Congress legislated a

standard by which these near zero marginal costs could be quantified, and artists could

continue to receive compensation for their creations.

Today, the marginal cost of reproducing sound recordings is also approaching

zero – especially due to digital technologies and the Internet. As a result, it is proposed

that a similar statutory licensing regime be imposed on sound recordings. Viewing a

sound recording as a work that requires an underlying musical composition is not so

different from imagining a sound recording that requires other underlying sound

recordings. In each case, a new artist or performer requires the underlying work in order

to provide a creative benefit to the public. As such, when the law gets in the way of the

creation of these new works, statutory schemes need to be devised. It is important to

protect emerging artists from the immense bargaining power held by already-existing

artists. Indeed, the possibility of a mashup artist bargaining with the Beatles seems slim

to none. As an emerging genre, Congress must recognize the value that this new art form

provides to many music listeners, and must act to ensure that it flourishes. This would

best be streamlined through a statutory scheme similar to that legislated for musical

compositions.

IV. Conclusion

10
 Even if mashups are considered unoriginal by some, so long as “they command

the interest of any public,”26 they should qualify as an original work worth protecting.

Furthermore, it must be recognized that the music industry reaps great profits from

emerging digital technologies and the Internet. Never before has the music industry been

able to reach so many people, at such an incredible speed and low cost. However, many

in the established industry would like to capture all of the gains of these new technologies

for themselves. Yet, it is society that should reap the benefits of progress – not any

particular industry that believes that such progress could advance their own interests at no

additional cost or investment. Analogously, authors should not solely reap the gains

provided by the advent of the printing press. No – rather, economic argument would

suggest that while distribution and volume increases through technological advancement,

prices should decrease. As a result, we must prevent holdouts that lead to increases in

volume that leave prices steady (leading to an overall wealth transfer from the general

public to the established industry). Adam Smith recognized this problem at the very

outset of capitalist thought:

‘“[T]he author of a new book has an exclusive privilege of publishing and

selling his books [for a limited time]… Some indeed contend that the book
is an [e]ntire new production of the authors and therefore ought in justice
to belong to him and his heirs for ever, and that no on should be allowed
to print or sell it but those to whom has given leave… But it is evident that
printing is no more than a speedy way of writing. Now suppose that a man
had wrote a book and had lent it to another who took a copy of it, and that
he afterwards sold this copy to a third would there be here any reason to
think the writer was injured. I can see none, and the same must hold
equally with regard to printing. The only benefit one would have by
writing a book… would be that he would have the first of the market and
may be thereby a considerable gainer. The law has however granted him
an exclusive privilege for [a limited time], as an encouragement to the
                                                                                                               
26
Pote, at 677.

11
 labours of learned men… But there are few so harmless. All monopolies
in particular are extremely detrimental.”27
Consequently, we must be careful about how we institute “intellectual

monopolies” in our society. Recognizing the monopolistic nature of copyright is the first

step. Realizing that creativity requires standing on the shoulders of giants is the next.

Combining these two intuitions allows us to realize that the mashup culture is at the

center of a fundamental legal debate about how progress is to proceed. In this author’s

eyes, as we build fences around the commons of human imagination, we are inevitably

dimming the future potentialities of creativity. In order to ensure that creativity is not

stifled in an age of hyperinformation, we must ensure that information remains free from

the constraints of excessive property rights. Even without property rights, musicians will

still perform, and artists will still create. With property rights, their incentive to do so is

greatly increased. Striking a balance, by which existing works are protected while also

liberating emerging artists to create new works, will prove to be the challenge that

intellectual property law must overcome in the first decades of the 21st century.

Inappropriately, the law has retarded an emerging genre of music. This paper has

offered multiple possible workarounds to help shift the balance that is currently stifling

the emergence of new artists. The courts could reinterpret the “fair use” defense in a way

that combines its two first factors in a way that allows noncommercial uses of cultural

facts to flourish. This proposed judicial analysis would view the “character and purpose

of the use” in the context of the “nature of the copyrighted work.” Thus, the fair use

defense would be analyzed in a way that examines the dynamic between the two works,

                                                                                                               
27
Adam Smith, Lectures on Jurisprudence, 83 (R.L. Meek, D.D. Raphael & P.G. Stein eds., Oxford Univ.
Press 1978) (1896).

12
rather than viewing the character of each work as an isolated prong of a judicial test.

This route could be useful as a temporary fix until the more appropriate statutory changes

are implemented. However, in the long term, a compulsory licensing model should be

statutorily devised so that the law allows streamlined access to intellectual monopolies –

a reform that is far overdue.

13