The change in music content and production reflects the development in various spheres of human society, such as technological advances and the emergence of popular cultures or subcultures. For instance, music sampling has radically changed the way music is produced in the modern world. The term sampling refers to a situation where an individual takes a portion of another person’s work, and incorporates it into his/her own work. This practice is prevalent in the music industry, especially in the modern digital age. The change of samplers from being a piece of hardware in the past decades, to a computer program in the modern times, has made it even easier to sample. In the music industry, artists and producers have continued taking a portion of another artist’s work, and using it in their own musical work. While some people have perceived this practice as creative, others have regarded it as unethical and criminal, thus requiring legal intervention.
Almost all music producers are engaged in music sampling because the practice has become a modern standard approach to music production. The steady growth of the sample pack market has continued to change the way many artists perceive music production. At the current pace, the practice will eventually change the uniqueness of music records in the future. Sampling has made music production much easier for many producers because they will not have to spend long hours in studios developing special loops over which the lyrics will be superimposed. Producers can therefore produce several tracks of music within a short period, thereby saving time and other resources, unlike using traditional approaches to production. Sampling has also been instrumental in kick starting the musical career of upcoming artists, especially those with limited resources. They do not have to form bands or pay heavily for musical beats to increase their music’s popularity. These obstacles to music productions have been eliminated considerably by the availability of commercially cheaper samples, especially those created using open-source computer programs that are prevalent worldwide.
Although music sampling has been instrumental in modern music production, it has raised ethical, legal, and artistic issues, most of which have been ignored. Since music sampling entails copying portions of music or recording that is already in existence, the practice has been perceived as unethical and retrogressive in relation to advancing music production. Most music producers are taking advantage of other people’s artistic efforts, without paying for the actual cost incurred by the original producers, or even acknowledging them. The prevalence of sampling is evident through the increasing popularity of “sound-alike” songs, some of which have led to the filing of copyright infringement cases in the law courts. This is particularly common with the use of another artist’s popular phrase, rather than music sounds or loops. Most producers are avoiding the legal implications of sampling by customizing the samples to make them appear like their original works, for instance, by introducing a few odd percussions. Questions have been raised on whether sampling is increasing creativity, or damaging music, especially its production. The creativity in the part of sampling is that the portion often incorporated into one’s music usually becomes more appealing to a diverse group of people as compared with the original work. For instance, the sampling practice was largely behind the emergence of hip-hop music, and its eventual international appeal. The emergence of the hip-hop in the 1970s was because of the looping beats portions to produce rhythmic beats characterized by breaks, which is outright sampling. Since then, sampling has remained an integral component of hip-hop music whose constant evolution over the years highlights the creativity in sampling. It has also been considered a creative form of art because of the ability to integrate various pieces of artistic work into a single artistic due to the blending of music textures to create another sense of harmony. Furthermore, it is a form of artistic creativity because it strives to add layers of meaning to music, rather than to circumvent the efforts required or costs to be incurred in producing original music. Therefore, the music itself is undergoing evolution, thus has to borrow some elements from the past artistic works for stability, while simultaneously exploring new possibilities to take music and music production to the next level. However, those claiming that sampling is damaging creativity in musical composition and production have provided several convincing arguments. Firstly, sampling creates a parasitic culture because artists will become more dependent on other artist’s work instead of generating their original work. Secondly, the superiority of the sampled work can possibly make the hard work and efforts of other artists quite irrelevant. Since they might have incurred huge costs in producing the original work, this irrelevance introduced by sampling can make them incur enormous losses, thereby hampering their musical and social progress. Furthermore, the widespread sampling practice has enabled more artists to venture into the music industry with much ease, thereby encouraging more artists to exploit their fullest potential because of the limited resources and efforts required.
While some people perceive sampling as a form of them, others have insisted that sampling is important because of its aesthetic value. For example, the incorporation of classical sounds into modern songs has been praised for bringing back the golden memories to both the artist and the listeners. Such music connects people with a particular historical moment, thereby providing historical resonance or enabling them to transport themselves through time for nostalgic reasons.
Sampling lawsuits have been common since the early 1990s, most of which were inspired by the 1991 U.S. District Court case involving Grand Upright Music, Ltd. v. Warner Bros. Records, Inc., with the ruling directing artists to clear all samples in their music in advance to avoid legal action for copyright infringement. Sampling is presently more popular in the hip-hop music, where artists frequently use portions of other artists’ songs, or even their previously recorded songs. Artists have continued to question the legality of sampling because songs representing a particular subculture, such as hip-hop or reggae, have to appear quite similar for conformity purposes. The prevalence is attributed to insufficient copyrights laws protecting music ideas. Furthermore, artists have claimed that these laws are considerably confusing, as the standards and guidelines for establishing whether or not a particular recording constitute fair use are ambiguous. It is unclear to what extent can the incorporation of another artist’s work in one’s artistic work constitutes unfair use. However, some attempts have been made to differentiate between fair use and copyright infringement in music sampling. For example, the most common factors that courts and juries consider when differentiating fair use from copyright infringement include the length and purpose of the use. They also consider whether such use is transformative, which refers to the extent to which another artist’s work has been changed or altered sufficiently to appear as something new. All these factors are more subjective, hence can lead to a lengthy legal tussle that can be costly in arriving at a decision. It is for this reason that most defendants in sampling lawsuits prefer settling the matter out of court. To avoid the costly financial implications of music sampling lawsuits, it is advisable for artists and music producers to complete the licensing deal prior to releasing their record containing sampled work. The licensing fee for incorporating a sample into an artist’s work can vary significantly. Firstly, it depends on the sample’s length that one intends to use, where the fee increases with the increase in the sample’s length. The second factor considered is the popularity of the music one is willing to sample. The license fee for samples from popular songs or chorus of a famous musician will be much more costly than obscure drum beats. Finally, the licensing fee will be determined by the intended use of the sample in one’s artistic work. For example, basing the entire song upon a particular sample will be very costly as compared to a minor use. There exist two types of copyright in music, where the first is that of the sound recording, while the second is that of the underlying musical composition, that is, the actual song. The recording label owns the first copyright, while the publisher owns the latter. Therefore, an artist seeking a license to sample a master recording has to be cleared by both the recording label and the publisher.
The increase in lawsuits against artists practicing sampling would possibly obstruct them from taking creative path, such as those of classical music, as they would highly constitute copyright infringement. To eliminate the legal confusion, steps should be taken to clarify the legality of sampling in music production, including its coverage. For instance, while professional artists and producers have been sued for sampling existing artistic works, the non-professional ones posting such works in the public websites, such as YouTube rarely face any legal action.
Sampling lawsuits concerning infringement of copyright have been challenged greatly based on the principle of de minimis, which simply implies that the law does not concern itself with matters of little importance. Courts of law have been applying this principle to avoid making decisions on trivial matters whose judicial scrutiny makes little significance. For instance, sampling has become a dominant approach to music production, whereby its extensive application has made it a popular culture that has little intellectual copyright significance. Since sampling largely involves the copying of a small portion of another artist’s work and subsequently modifying it to create a new artistic work, courts have on several occasions sampling lawsuits arguing that such use was so insignificant, that is, it was of a de minimis use. Due to technological advancement, electronic music producers are increasingly capable of incorporating a series of minor samples within a single composition when creating a new artistic work. They are carefully incorporated in such a way that it becomes difficult for the public to recognize the similarity of the new work with other previous ones. Therefore, technological advancement has enhanced the perfection of creating de minimis samples, thereby enabling artists to evade copyright infringement lawsuits. It has also made it difficult for artists to recognize whether the copyright for their artistic work has been infringed. There have been progressive attempts to establish threshold for de minimis copying, both qualitatively and quantitatively. The first qualitative rule states that there is no copyright infringement if the new work cannot be recognized as the original one. Quantitatively, infringement can constitute the copying of one or two notes in a new artistic work without obtaining permission. However, the courts have quite tolerated these rules for determining whether there is any copyright infringement in sampling. Therefore, the fair use principle in sampling is not well defined, hence is largely based on the audible similarity and subjective judgment.
There is increased concern that the tightening of copyright infringement laws regarding sampling would adversely affect music production and the industry in the future. For instance, the protection would significantly prevent individuals from using classical tunes to invoke appealing historical memories for nostalgic reasons. Additionally, music is also evolutionary in nature, hence has to borrow some portions from previous works. This makes sampling essential for facilitating the continuity of music over time. However, it is believed that these protection laws, if embraced positively would lead to increased creativity, as artists would be forced to continually explore new ways of producing music. For instance, de minimis sampling has been considered a more appropriate approach to music sampling as its copyright infringement is so insignificant.
In conclusion, it is evident that sampling has significantly changed the way music is produced. It has eliminated the traditional barriers to music production, such as high costs in developing beats and the lengthy duration required to create a new artistic work. However, the increasing popularity of this practice across the world, especially because of technological advances, has resulted in increased infringement of copyright. The increasing infringement incidences have led to sampling lawsuits, most of which have had serious financial implications on the alleged infringers. Sampling has also been engulfed with legal confusion, particularly in terms of coverage and determining what constitutes fair use. For example, although there is a significant increase in lawsuits against professional artists engaged in unauthorized sampling, there has been less or no action taken against the unprofessional ones distributing such content via content sharing platforms such as YouTube. The doctrine of what constitutes fair use of sampling has also remained unclear. Furthermore, artists are constantly exploring new ways of sampling that do not infringe copyright. One of such ways includes the creation of de minimis samples, which, despite incorporating a series of minor samples, their similarity with other artistic works from which the samples have been derived from cannot be recognized by the public. However, there is a low likelihood that sampling would reduce in the future, even with the tightening of sampling laws. This fact is demonstrated by the ever-increasing market for sample packs, and its increased commercial production. This trend has been encouraged by technological advances that have enabled people to produce and distribute sample packs more easily. Finally, musing sampling is more appealing to a diverse range of artists and listeners, thereby making it the most preferred approach to music production. These reasons have enabled sampling to radically change the way music is produced, and would possibly last for decades, as it has emerged as a form of popular culture.
Demers, Joanna Teresa. Steal this music: how intellectual property law affects musical creativity. Athens, Ga: University of Georgia Press, 2006.
McLeod, Kembrew, and Peter DiCola. Creative license: the law and culture of digital sampling. Durham [NC]: Duke University Press, 2011.
Nielson, Erik. “Did the Decline of Sampling Cause the Decline of Political Hip Hop?” The Atlantic, 18 September 2013.
Packard, Ashley. Digital media law. Malden, MA: John Wiley & Sons, Inc, 2012.
Sinnreich, Aram. Mashed up: music, technology, and the rise of configurable culture. Amherst: University of Massachusetts Press, 2010.
 Joanna Teresa Demers, Steal this music: how intellectual property law affects musical creativity (Athens, Ga: University of Georgia Press, 2006), p. 92.
 Erik Nielson, “Did the Decline of Sampling Cause the Decline of Political Hip Hop?” The Atlantic, 18 September 2013,
 Kembrew McLeod and Peter DiCola, Creative license: the law and culture of digital sampling (Durham [NC]: Duke University Press, 2011), 108-109).
 Aram Sinnreich, Mashed up: music, technology, and the rise of configurable culture (Amherst: University of Massachusetts Press, 2010), 136.
 Ashley Packard,. Digital media law. Malden (MA: John Wiley & Sons, Inc, 2012), 193.