DJs and Sampling: Is the Transformative Prong of Fair Use the Key to Avoiding Copyright Infringement?

By: Bradley Fenniman
  1. Introduction
Electronic dance music, commonly referred to as “EDM” is a broad term that encompasses a multitude of musical subgenres produced using a computer and other technological instruments.[1] For example, the subgenre referred to as “dubstep” is created by mixing certain basslines and chord progressions at the 140 beats per minute (bpm) range using different programs and electronic synthesizers. Commonly, dubstep artists and artists in electronic genres will use short clips of other people’s artistic creations, called “samples”, to enhance their own song.[2] Sampling songs in DJ’s live performances and created works present a major issue: is this fair use under the federal copy right law?
  1. Sampling Sound
Sampling sound is the act of taking small sound bites or “clips” from other creative works and incorporating them in to a new piece of music.[3] This is encompassed in new songs as well as live performances. It is an incredibly common production tool that electronic music producers use to enhance their own creation.[4] Sampling is popular in electronic music production because of its availability in the digital era.[5] No longer does a producer need to hire musicians for vocals for other musical elements.[6] One can simply download sample packs online and chop and break beats in countless combinations until their creation is complete. However, DJs and producers can face legal claims if they do not obtain the rights to use the sampled works or cannot claim fair use.[7]
  1. What Constitutes Fair Use in EDM?
DJs can legally sample other works of art if they can successfully assert an affirmative defense of fair use under 17 U.S.C. § 107.[8] 17 U.S.C. § 107 highlights four elements that the court can weigh to determine fair use:  the purpose and character of the use; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work.[9] These enumerated elements act as a defense to an infringement claim in order to allow courts to avoid stifling the artistic creativity and ingenuity that copyright law was meant to protect.[10]
  1. What are the Options?
A DJ or producer could simply purchase the rights of other’s creations, but that requires resources.[11] However, a DJ or producer can try to use fair use as an affirmative defense.[12] Out of the four factors from the Fair Use Doctrine, the court in Campbell makes the argument that the more transformative the artwork is, the less important the other factors will be.[13] While the 4th prong is not necessary to find fair use, this decision means that DJs and producers have a stronger argument if they distort or change the sampled use so much so that their work will be considered different enough from the original to avoid copyright infringement.[14] If the courts continue this trend it could be very positive for electronic music producers as new production technology allows for unlimited combinations of alteration to sampled music.
  1. John Masachi, What Is Electronic Music?, World Atlas (Apr. 25, 2017), https://www.worldatlas.com/articles/what-is-electronic-music.html.
  2. Glenn Jackson, Modern Approaches: Sampling, Red Bull Music Academy Daily, (Jul. 26, 2016), http://daily.redbullmusicacademy.com/2016/07/modern-approaches-sampling.
  3. Id.
  4. Id.
  5. Id.
  6. Id.
  7. See 17 U.S.C. § 107 (2012).
  8. Id.
  9. Id.
  10. Campbell v. Acuff Rose Music, 510 U.S. 569, 577 (1994).
  11. See Ian Clifford, Sample Clearance – a cautionary tale, Make It In Music, (Oct. 11, 2011), https://www.makeitinmusic.com/sample-clearance-tale/.
  12. See Campbell, 510 U.S. at 590.
  13. See Campbell, 510 U.S. at 579.
  14. Id.

Leave a Reply

Your email address will not be published. Required fields are marked *