Digital Sampling v. Appropriation Art: Why Is One Stealing and the Other Fair Use? A Proposal for a Code of Best Practices in Fair Use for Digital Music Sampling

Abstract

This Article examines the disparate treatment of music sampling and appropriation art under copyright law and advocates for the creation of a code of best practices in fair use for digital music sampling. In the music industry, when artists sample two-seconds of a song, courts call it stealing, piracy, and copyright infringement. In contrast, in the art world, when artists sample whole photographs, courts label it appropriation art, collage, and fair use. Yet, appropriation art and digital sampling are artistically analogous acts. Both arise from the practice of collage and the long-standing practice of musicians and visual artists sampling other artists’ works by incorporating them into new pieces, often without permission from the original artists. Therefore, this Article argues that the more liberal fair use and de minimis principles adopted in recent visual arts cases should be applied to music sampling. This Article then sets forth a Code of Best Practices in Fair Use for Digital Music Sampling which articulates principles for determining under which circumstances permission is needed for sampling. This code is based on the author’s online survey that questioned music professionals about their opinions, experiences, and practices concerning digital music sampling. This Article does not advocate for bright-line rules classifying all sampling as per se fair use. Just as some appropriation art is copyright infringement, some digital sampling will require a license too. The point is that it is time for musical artists to reclaim their right to fair use and to put digital music sampling on the same legal par as other artistic collage practices.