Intellectual Property and Fair Use
Click on this audio player to listen to the contents of the section below:
Greene states that the American Founding Fathers were deeply influenced by Locke’s theory of private property and consistently equated liberty with property ownership ("Copyright, Culture & (and) Black Music: A Legacy of Unequal Protection" 345).
​
​He recounts Locke's theory that "every man has Property in his own Person [and thus] the Labour of his body and the work of his hands is properly his." ("Copyright, Culture & (and) Black Music: A Legacy of Unequal Protection" 345). This means that since you are your own property, any work that you do belongs to you.
​
​According to Greene, this obsession with property rights “extended to the cultural and scientific products of creativity, such as inventions, which received patent protection, and literary and artistic creations, which received copyright protection.” ("Copyright, Culture & (and) Black Music: A Legacy of Unequal Protection" 345)
​
Let’s break this down…
​
​According to the 1976 Act, the three core protections of intellectual property at the American federal level are copyright, patent, and trademark law.
Click on this audio player to listen to the contents of the section below:
We can agree that these laws need a dose of progress because in their current state, they are a hindrance to creativity.
​
Collins reiterates that:
“The primary objective of copyright is to furnish society with creative works: ‘The overall social good is served by the progress of science and the useful arts. The progress of science is served by the encouragement of authors. The encouragement of authors is secured by providing them with the incentive of legally secured monopoly profits from the sale and circulation of their works over a limited period of time. Fair use is supposed to act as a safety valve preventing the oppressive exercise of monopoly grants." (“Digital Fair Prosumption and the fair use defence” 45)
​In the music industry, sampling took birth with the rise of Hip Hop and Rock-n-Roll music and so did the paranoia about protection of private property. “Turntablism, rapping, breakdancing, and graffiti quickly emerged as the four core practices of a new black urban youth subculture called hip-hop; hip-hop music thus is a remix genre, a type of music that depends on bits of records being cobbled together to form a new track. Hip-hop music has always necessitated the collaging of preexisting [sic] sounds. Appropriation has, from the start, been essential to rap/hip-hop music, not incidental to it”, says Derecho (22)
Firstly, it turns out, artists do not really need an incentive to create. They create because they are creative, love what they do, and are inspired (who knew?). Yes, they often make a living from their creative pursuits, but commercial gain is not the primary stimulus for most artists. It is a consequence.
Secondly, Derecho is in line with Edwards’ theory of assembling, reappropriating, redistributing others’ works and bending genres to create something original, while adopting Eyman’s formulae of rhetoric, design, and code to accommodate even further sampling. Although transformational, this new approach ensured that the industry suffered the consequences of intellectual property laws right out of the gate.
Lastly, to say that fair use is a “safety valve” to avoid “oppressive exercise of monopoly grants” is (to say the least) unhelpful. Joshua Crum tells us why:
“Under standard industry recording contracts, most artists surrender their sound recording copyrights to the record company that releases the performance. This allows a record company to pay for the production of a record, invest money in promotion and touring, and reap the financial rewards if the record is a success. On a less positive note, because record companies typically own the rights to sound recordings, the use of those sound recordings in subsequent works— i.e. samples—is usually determined by profitability or legal concerns, rather than artistic potential.
A still image from the Kanye West GIF
No wonder Kanye's not impressed!
Thus, while some artists may have no objection to being sampled, their record companies [or estates] hold the final decision.” (950-51)
​
Having said that, fair use can come in handy in certain situations. Watch this video to understand how it can be used to an advantage:
Click on this audio player to listen to the contents of the section below:
Although, some samplers appeal their cases on grounds of fair use, it does not always work! Fair use in the music industry is rarely a successful defence.
With this in mind, we will analyze three cases in the music industry that leaned on a fair use defence, their outcomes, and how you can ensure that you are within fair use limitations while sampling content.
Click on the buttons below to explore the cases...