Sampling Unleashed? Migrating Visual Art Fair Use Principles into the Music Space

Abstract

The recent evolution and application of fair use principles in the area of US copyright protection for the visual arts has moved in a direction that either signals the path for, or sets up a collision with, fair use in the context of music composition, performances and recording. The aggressive enforcement against music sampling often does not differentiate sufficiently between culpable infringement and transformative use that otherwise satisfies some or all of the remaining factors used to determine if a fair use defense is appropriate. There are questionable aspects of recent fair use cases in the visual arts. However, the cases and their approaches are worth considering as they may apply to, or can be adapted to apply to, other species of “appropriation art,” such as the sampling of recorded music for incorporation into new works.