Sampling, Looping and Mashing … Oh My! How Hip Hop Music is Scratching More Than the Surface of Copyright Law

Abstract

There is nothing new under the sun, or so the saying goes. The process of creating music is no exception. The fruit of this process, an artistic endeavor, is protected by copyright: an intellectual property monopoly created by federal statute to give authors certain exclusive rights in and to their creations for a certain period of time.3 Congressional power to regulate artistic and inventive creations flows from the United States Constitution.4 The Constitution directs that Congress regulate copyright and patent laws, respectively, to serve human values and social ends by promoting creativity and innovation. However, twenty-first century technologies used to create and to disseminate music have stressed copyright's property-based rights framework beyond its fragile limits. And now copyright law, as applied to music generally, and sample-based works specifically, fails to meet this constitutional objective. This failure is made all too clear in the case of an intensive sample-based music genre like hip hop.

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Ultimately, this Article suggests that music copyright reform is needed and, perhaps, inevitable as technology continues to outpace and stress the law and the law continues to stress and underperform in balancing the rights/access continuum.24 Any short- or long-term fix should "sample patent to remix copyright." By this I mean copyright reform should contemplate and consider policies supporting reverse engineering in the patent context, which 25 encourages and values cumulative creation to bolster innovation.

This Article highlights the Semiconductor Chip Protection Act's sui generis framework by which Congress and the relevant industry sought to achieve the ideal balance between exclusive rights and access for cumulative creation in a hybrid law of (in theory, at least) the ideal components of copyright and patent law. 26

Publication Date

1-1-2011

Journal Title

Fordham Intellectual Property Media & Entertainment Law Journal

Document Type

Article

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