Now that 2024 is here, it is time to reflect on the copyright law decisions of 2023. A lot happened in the world of copyright last year, particularly around the rise in prominence of generative AI. But today I want to focus on what 2023 may mean for fair use law, and in particular the impact that 2023’s biggest fair use decision, Andy Warhol Foundation v. Goldsmith (Warhol), may have on music sampling.
Warhol involved a photograph of rock legend Prince, taken by Lynn Goldsmith, a famous music photographer, and used by pop art icon Andy Warhol as reference for Orange Prince, an art piece that ultimately served as magazine profile in Vanity Fair. The court held that Orange Prince did not serve a transformative purpose, even though Warhol may have changed, manipulated, and added new expression to the original photo. Both Orange Prince and the original photo were profile images of the same musician in magazine articles, and as such they served practically identical purposes.
The concept of transformativeness is one of the most confusing aspects of copyright law. This is in part because the law uses the word “transform” to describe two things, derivative works and fair uses, and as such, the distinction between derivative works and fair uses is vague. The copyright statute defines derivative works as works that are “based upon one or more pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.” (emphasis added). One right that copyright law gives to authors is the right to make or authorize the creation of derivatives of their works.
In contrast, the law explicitly states that a fair use is “not an infringement” and is not something the rightsholder can control. At the same time, since the Supreme Court’s decision in Campbell v. Acuff-Rose Music in 1994, the most important single question concerning fair use has been whether a use is transformative or not. Campbell held that transformative purposes weigh in favor of fair use. So, there is a bit of tension between transformative derivative works -- something rightsholders can control -- and transformative fair uses -- something rightsholders cannot.
What does all of this mean for music sampling? Warhol addressed sampling as part of its discussion about the distinction between transformative derivative works and transformative fair uses. “Copying might have been helpful to convey a new meaning or message. It often is. But that does not suffice under the first factor [of the fair use analysis, the purpose and character of the use],” the court’s decision reads. “Nor does it distinguish AWF [Andy Warhol Foundation] from a long list of would-be fair users: a musician who finds it helpful to sample another artist's song to make his own, a playwright who finds it helpful to adapt a novel, or a filmmaker who would prefer to create a sequel or spinoff, to name just a few. As Judge Leval has explained, ‘[a] secondary author is not necessarily at liberty to make wholesale takings of the original author's expression merely because of how well the original author's expression would convey the secondary author's different message.”
The comparison between music sampling and novel adaptations, sequels, and spinoffs in this passage is significant. Things like adaptations, sequels, and spinoffs are clear examples of derivative works, at least in most cases. By comparing them to music sampling, the court indicates it believes that sampling is also an example of a derivative work.
Warhol correctly observes that an over-broad application of transformativeness in favor of fair use will encroach on authors’ derivative rights, but it does not necessarily follow that music sampling fits in the same category as other derivative works. Sampling artists do not simply copy other works with the purpose of reproducing them for commercial profit. The other examples of derivative works in the statute -- translations, fictionalizations, dramatizations -- describe works that redo an original work, but in a different form. Samples aren’t covers, adaptations, or genre-swapped versions of songs. Instead, sampling artists use bits and pieces of other works as building blocks to create entirely new pieces of art. Songs that sample other works may or may not resemble the original works, but they are nearly always designed to stand apart from the original works as something different and unique. In some ways, sampling is more like the way academics use quotes and short phrases to build arguments in scholarly papers than the creation of an unauthorized sequel or cover.
The fundamental purpose of copyright law is to “promote the progress” of our culture. The law gives authors limited-duration monopolies over their works to encourage them to create and distribute them to the public. Meanwhile, fair use exists in part to ensure that this monopoly does not overly chill creativity and expression by other people. It provides “breathing space” for new works to grow and “permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” And I believe that sampling should fit within that “breathing space” in many if not most cases.
It is a strange coincidence that Warhol came out just two months after De La Soul’s debut masterpiece, 3 Feet High and Rising, came to streaming platforms after years of being stuck in legal limbo. De La Soul is a hip hop group that formed in 1988 in Long Island, New York. In 1989, rappers Kelvin "Posdnuos" Mercer, David "Trugoy the Dove" Jolicoeur, and Vincent "Maseo" Mason, together with producer Prince Paul, released their first album, 3 Feet High and Rising, featuring the all-time classic, The Magic Number. Consisting of dozens of samples across a wide variety of genres, along with De la Soul’s clever, fun, and smooth lyrics, this album is, simply stated, one of the greatest albums in music history. These samples create a sound that is unlike anything it references. I believe that it is not an exaggeration to say that the world is better because this piece of culture -- pop culture is our culture -- exists. Unfortunately, however, most of De La Soul’s work has been unavailable on streaming platforms for years because the group did not clear the digital distribution rights to many of the samples they used in their albums.
It is also not an exaggeration that Warhol’s concept of music samples as derivatives imperils the future of music sampling. The language I quoted above from the case clearly cuts against music sampling as fair use, and alone may be enough to discourage music sampling artists from creating works in the future. The “solution” some rightsholders may advocate for is that sampling artists can license the right to use the samples they want to use. Certainly, any song that you hear commercially available today that includes samples almost certainly licensed the rights to those samples. But there are at least two problems with a paradigm that requires licensing and entirely discounts fair use in music sampling. First, it closes out of the market smaller artists who cannot afford to sample the works they want to use. Perhaps it’s obvious, but licensing samples costs money and newer artists may not have the capital to license all that they need to create their art. Second, it leaves artistic creation subject to the whims of someone other than the artists themselves. That is, a rightholder does not have to give permission to use a sample just because someone asks for it.
Indeed, these are not theoretical concerns; De La Soul is an example of why a rigid application of the derivative right to music sampling may be problematic for the future of music sampling. Even though they eventually were able to make their album available on streaming services, De La Soul had to change several of their songs where they could not get rightsholder permission. Some of the most important and influential art of all time, music that the Library of Congress selected for its National Registry of Recordings, cannot be experienced in its original form in the way most people consume music today because of permissions problems. While I am sympathetic to the interest authors have in protecting the unfair exploitation of their works, it seems to be a net negative to the world that many new listeners may never hear the original 3 Feet High and Rising.
Altogether, if Warhol chills the artistic creation of sampling artists, as I’m afraid it will, then this is a sad result. While the decision may have some upsides, particularly for academic fair use -- a topic for future blog posts -- it strikes me as problematic for music sampling. I hope I’m wrong. Either way, you can find me listening to The Magic Number on repeat.
Borrow or listen to 3 Feet High and Rising and more from De La Soul in the Albrecht Music Library.