Time To Remix Copyright Law: The Hip Hop Case Study

from the it's-how-music-is-made dept

Michael Scott points us to an interesting paper by a law professor, Tonya Evans, talking about how poorly copyright law is designed to handle a concept like hip hop. Of course, this is an issue that we (and plenty of others) have covered for years -- noting how copyright law has drastically hindered certain aspects of hip hop music, once the lawyers started accusing samplers of infringement, and some courts suggested that using just a tiny snippet of a song, and even changing it so the original was unrecognizable, still constituted copyright infringement. From the abstract:
For decades hip hop producers have relied on the innovative use of existing recordings (most of which are protected by copyright), to create completely new works. Specifically, cuttin' and scratchin', digital sampling, looping and (most recently) mashing are all methods of creating music and are all integral parts of the hip hop music aesthetic. Collectively these creative processes are the hallmark of the type of innovation and creativity born out of the hip hop music tradition. And hip hop artists and producers from Chuck D, Queen Latifah, A Tribe Called Quest and M.C. Lyte to The RZA, Missy Elliott, Dangermouse and Jay Z have employed the sampler more as a musical instrument or palette than a tool of expediency or theft. But when done without the permission of the borrowed work’s copyright holder, sampling is at odds with copyright law. Unfortunately, copyright fails to acknowledge the historical role, informal norms and value of borrowing, cumulative creation and citation in music.

Additionally, different copyright infringement standards are applied to the two types of music copyright (the musical composition and sound recording). Further, and arguably more troubling, different infringement standards are being applied by the circuits to sound recording infringement cases resulting in a split in the circuits.
Evans concludes that "intellectual property should be most narrowly tailored when innovation in the field tends to be highly cumulative" such as the case in music. But what really caught my eye was the claim that "copyright law must be remixed." While I think Evans, like many copyright reform advocates, makes the mistake of focusing on balance, rather than looking to optimize the best results for everyone, there's just something amusing about using the term "remix," which is usually used when discussing the content itself, to discuss how copyright law might be reformed.

Reader Comments (rss)

(Flattened / Threaded)

  1. identicon
    Anonymous Coward, Nov 8th, 2010 @ 8:12pm

    If copyright law can be like music and then remixed can it also be like literature and then recontextualized?

    reply to this | link to this | view in thread ]

  2. identicon
    Anonymous Coward, Nov 8th, 2010 @ 8:33pm


    Why don't we just substantially repeal it.

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, Nov 8th, 2010 @ 11:11pm

    Simpler yet.. have judges apply copyright law to when an actual copy is in dispute.

    reply to this | link to this | view in thread ]

  4. identicon
    Anonymous Coward, Nov 8th, 2010 @ 11:26pm

    We need a remix "Requiem for Copyright".

    reply to this | link to this | view in thread ]

  5. icon
    Greevar (profile), Nov 9th, 2010 @ 6:20am

    Re: Re:

    I second that. It's nothing but an impedance and it won't stop being so until it is completely stricken from law. If any remnant of the law remained, they publishers would buy more powerful protection added to it again.

    reply to this | link to this | view in thread ]

  6. identicon
    betty, Apr 2nd, 2013 @ 6:12am


    this is ssoooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo ooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo good.

    reply to this | link to this | view in thread ]

  7. identicon
    black guy, Apr 2nd, 2013 @ 6:17am


    reply to this | link to this | view in thread ]

  8. identicon
    Seanblaque, Feb 19th, 2014 @ 12:19am


    I love sampling music to make beats for sale. I think the copyright laws should allow musicians to freely use past material and put a fixed rate on sample rates so that the flow of cutting legitimate checks flow..... I sell rap beats to my clients that have samples in them and I know sometimes they complain about clearing a smaple.... Hope this changes soon.

    reply to this | link to this | view in thread ]

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