Musical Borrowing
An Annotated Bibliography

Individual record

[+] Fuller, P. Brooks, and Jesse Abdenour. “It’s Bigger Than Hip-Hop: Sampling and the Emergence of the Market Enhancement Model in Fair Use Case Law.” Journalism &Mass Communication Quarterly 96 (June 2019): 598-622.

The legality of sampling in hip-hop and other musical genres has been understood through two models of copyright law: the “pure market substitute” model and the “market enhancement” model, which better serves the goal of copyright law. Sampling case law in US federal courts hinges on the applicability of fair use, the right to use copyrighted material without permission, which in turn is decided primarily by looking at market harm and transformative use. In hip-hop, the cultural importance of sampling as signifying is at odds with copyright law and the system of licensing, both of which favor copyright holders. Campbell v. Acuff-Rose Music (1994) applied a transformative use test to rap group 2 Live Crew’s parody of Roy Orbison’s Oh, Pretty Woman and found it to be fair use. Since then, some courts have used the pure market substitute model, ruling that fragments of sound recordings are protectable derivative elements. Other cases have taken a broader view on fair use, ruling that audiences for different musical genres (hip-hop and jazz in the case of Abilene Music v. Sony Music Entertainment, 2003) are distinct enough that market harm is mitigated. The market enhancement model shifts away from this framework. Some courts have ruled that sampling can enhance the marketability of the original work by exposing it to a new audience. A broader adoption of the market enhancement model would relax strict copyright laws for musicians and other media producers who frequently borrow material. Potential drawbacks of expanded fair use include misuse by large corporations at the expense of artists and minimizing an artist’s ability to claim moral harm. Despite these imperfections, the market enhancement model would help achieve a legal balance between expressive freedom and commercial incentives.

Works: 2 Live Crew: Pretty Woman (600-601); Public Enemy: Fight the Power (602); LMFAO: Party Rock Anthem (609, 612); Ghostface Killah, Raekwon the Chef, and the Alchemist: The Forest (610).

Sources: Roy Orbison: Oh, Pretty Woman (600-601); Rick Ross: Hustlin’ (609, 612); Bob Thiele (as George Douglas) and George David Weiss (songwriters), Louis Armstrong (performer): What a Wonderful World (610).

Index Classifications: 1900s, 2000s, Popular

Contributed by: Matthew Van Vleet

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Musical Borrowing and Reworking - - 2024
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