Toward a “New School” Licensing Regime for Digital Sampling: Disclosure, Coding, and Click-Through

Abstract

Since musical sampling emerged as a subject of academic concern in the late-1980s, legal scholars have debated the most appropriate way to address the “sampling conundrum,” or the need to balance a sampling artist’s interest in appropriating preexisting musical materials with the property rights that the owners of those materials enjoy under the Copyright Act. Despite significant changes in the nature of musical production, distribution, and consumption that have occurred in the last twenty-five years, the terms of this debate have not changed much; in fact, for a body of scholarship concerned with cutting-edge technologies, emergent cultural phenomena, and the newest of the “new school,” existing writing on the sampling conundrum seem markedly – and inappropriately – old school. Toward a “New School” Licensing Regime seeks to outline, and respond to, the manner in which digital technology has altered, and can alter, the relationships between sampling and sampled parties to the benefit of both. As I argue, developments in MP3 technology and digital music aggregators may allow us to visualize the contributions of samplers to the music they sample not in sociologically and economically vague terms of “buzz” or “recognition,” but rather, in terms of monetizable linkages. Such a visualization abandons the image of the sampling relationship that currently informs both the literature on sampling and existing licensing regimes, namely, a two-party relationship defined principally by a unilateral taking of source material by a sampler from the owner of that source material. Instead, I suggest, the sampling relationship can be viewed as an exchange of source material in return for audiences (and potential buyers), mediated by the digital musical environment. Within the context of the emerging digital environment, new possibilities for sample licensing emerge. While a variety of specific arrangements are conceivable, I propose a new sampling regime based on (first) “disclosure” of the source materials incorporated into sampled songs, (second) comprehensive coding of links to that source material into song files and aggregators, and (third) “click-through” credits, which would allow sampling artists to earn credits proportionate to the traffic their music drives to source material. While this Article largely brackets the expressive and cultural arguments that typically organize arguments for sampling reform (and copyright reform more generally), it does so only to expose previously underexplored aspects of sampling and the sampling relationship. As I suggest, the licensing reform presented herein is a means, first, of increasing the leverage of samplers vis-à-vis the owners of source materials, and, second, of expanding the responsiveness of the extant copyright and licensing regime to matters of personal expression, cultural access and continuity, and distributive justice (along both generational and racial dimensions).