Digital Sampling v. Appropriation Art: Why Is One Stealing and the Other Fair Use? A Proposal for a Code of Best Practices in Fair Use for Digital Music Sampling.

• Author: Eckhause, Melissa

"It ain't hard to tell, I'm the new Jean Michel, Surrounded by Warhols... I'm the modern day Pablo, Picasso baby."--Jay-Z (1) INTRODUCTION

"Thou shalt not steal"--so began the court opinion that effectively ended unauthorized digital sampling in the music industry. (2) Since then, digital music sampling has been referred to as theft, (3) pirating, (4) and copyright infringement. (5) Even when artists sample two seconds of a song, courts admonish them, "Get a license or do not sample." (6) Yet, somehow, "thou shalt not steal" does not apply in the visual arts world. Instead when visual artists sample whole photographs, courts label it appropriation art, collage, and fair use. (7)

This Article examines the disparate treatment of music and visual arts sampling under copyright law. Not only does this Article argue that the more liberal fair use principles adopted in recent visual arts cases should be applied to digital music sampling, (8) but it also sets forth a preliminary Code of Best Practices in Fair Use for Digital Music Sampling ("Digital Music Sampling Code"). (9) Part I of this Article begins by tracing the long history of both musicians and visual artists sampling other artists' works by incorporating them into new pieces, often without permission from the original artists. This Article shows that both digital music sampling and appropriation art are forms of the artistic tradition of collage, and as artistically analogous acts, they deserve to be treated alike under copyright law.

Part 11 gives a brief overview of the copyright law principles that apply to sampling. Part III then reviews the leading digital sampling and appropriation art cases. (10) Starting with Blanch v. Koons, (11) the path of music and visual arts collage cases began to diverge and the courts in visual arts cases started embracing transformative works as fair use. While Blanch led to a resurgence of fair use in visual arts cases, such as Cariou v. Prince (12) and Seltzer v. Green Day, Inc., (13) the defense of fair use all but disappeared in music cases for many years. Moreover, the decision in Bridgeport Music, Inc. v. Dimension Films (14) seemingly eviscerated music sampling's de minimis defense. As one legal commentator noted, "the rulings on digital sampling effectively have foreclosed the ability to quote music at all." (15) However, several cases have emerged in recent years that support the unlicensed use of digital music samples under either the de minimis or fair use doctrines. For example, in VMG Salsoul, LLC v. Ciccone, (16) the U.S. Court of Appeals for the Ninth Circuit specifically rejected the decision in Bridgeport, thereby setting up a circuit split that has yet to be resolved.

Despite the recent case law developments supporting unlicensed digital sampling, the music industry remains stuck in a clearance culture that requires all samples to be licensed. Many legal and music commentators have recognized this problem and proposed solutions. The proposals for reform, however, have focused on either adopting a compulsory licensing system or amending the Copyright Act to expressly address digital sampling. (17) Attempts to implement these solutions have repeatedly failed. Therefore, this Article suggests a different approach.

Part IV proposes the adoption of a Digital Music Sampling Code. This code would be similar to the codes of best practices for fair use adopted in other creative industries. In particular, given the analogy between appropriation art and digital music sampling, this code would borrow heavily from the Code of Best Practices in Fair Use for the Visual Arts ("Visual Arts Code") promulgated by the College Art Association ("CAA") under the guidance of Peter Jaszi and Patricia Aufdcrheide. (18)

As the first step towards creating a fair use code for digital music sampling and as part of the research for this Article, the author conducted an anonymous online survey ("Survey") of professionals in the music industry in the United States from all musical genres and backgrounds. (19) The Survey included respondents who use digital samples in their work, artists who are sampled, and other stakeholders who have an interest in sampling, such as music label professionals, publishers, and composers. The Survey questioned them about their opinions, experiences, and practices concerning digital music sampling. In particular, the Survey questioned participants about the circumstances, if any, under which they believe sampling of third-party copyrighted material may be unlicensed. Overall, 61.81% of the Survey respondents believed that whether an artist should seek permission or obtain a license to use a sample of another artist's work depends on the circumstances. As a result, the author drafted the Digital Music Sampling Code, which attempts to articulate principles for determining under what circumstances permission is needed and when it is not. The Digital Music Sampling Code is also based on broad fair use principles, music case law, and fair use codes from other industries.

1. THE HISTORY OF SAMPLING

   Pablo Picasso has been quoted as saying, "Bad artists copy. Great artists steal." (20) Meanwhile, Igor Stravinksy reportedly remarked, "A good composer does not imitate, he steals." (21) No matter who said what first, the sentiment is the same. Both in music and visual arts, the practice of stealing or sampling from predecessors is nothing new. Indeed, in some sense all art is derivative and builds upon past works. As Justice Story explained,

   In truth, in literature, in science and in art, there are, and can be, few, if any, things, which in an abstract sense, are strictly new and original throughout. Every book in literature, science and art, borrows, and must necessarily borrew [sic], and use much which was well known and used before. (22) One Survey respondent further noted, "[W]e're basically to the point now where almost everything is going to soon be derivative to one extent or another ....", while another stated, "[E]verything I create is more or less built on what others have made." This Part will examine the history of both visual and musical artists appropriating--or sampling--from those who came before them, and it will show that digital music sampling is just the modern day version of this practice.

   1. History of Sampling in Visual Art

      In 1912, Pablo Picasso and Georges Braque coined the term "collage" to refer to their style of art that appropriated existing images, such as magazine illustrations and other "found material" like floral wallpaper, to create new mixed media pieces. (23) By mixing incongruent materials, new meaning was brought to the individual elements. (24) This form of art, which was part of the Cubist movement, also brought attention and criticism to the rise of popular media. Many other art genres--futurists, constructivists, surrealists, and abstract expressionists--would later embrace the technique of collage as a means of expressing their social and political views. (25)

      The Dada art movement, which arose from the travesties of World War I, also believed in recycling and reassembling material and rejected the notion of originality in art. (26) For example, Dada artist Marcel Duchamp incorporated what he called "readymades," which were manufactured objects, such as bicycle wheels, into his work. (27) One of his most famous and controversial pieces, Fountain, was a white-glazed, ceramic urinal that he placed in an art gallery thus creating "new thought for [the] object." (28) Meanwhile, German Dada artists invented the technique of photomontage, which involved making a collage out of photographs. (29)

      The 1950s saw the birth of Pop Art. One landmark piece was Richard Hamilton's collage, Just What Is It That Makes Today's Homes So Different, So Appealing?, from 1956. (30) This work commented on the modern consumer world by combining culture images, such as an ad for The Jazz Singer, a Tootsie Pop, and a Ford emblem, that were cut-out from magazines and pasted together. (31) Andy Warhol later began taking everyday, banal objects, like Campbell soup cans and Brillo soap-pad boxes, and recasting them as fine art. This, too, caused the viewer to examine these objects in a new light and question the motives of mass production. (32) Warhol also used a silkscreen technique to place actual newspaper stories and photographs, including those of famous celebrities like Elvis Presley and Elizabeth Taylor, into his works. (33) In doing so, Warhol "was able to convey a message that went beyond the commercial exploitation of celebrity images and became a form of ironic social comment on the dehumanization of celebrity itself." (34) Warhol introduced the photo-silkscreen method to Robert Rauschenberg who would use it to incorporate masterpieces like Venus at Her Toilet by Peter Paul Rubens into his paintings. (35)

      Later came the "Pictures Generation"--artists who used mass media images to critique contemporary culture. (36) Often this involved re-photographing famous works. For example, in Sherrie Lcvine's After Walker Evans photograph series, she re-photographed well-known Walker Evans' photographs from the Depression era. (37) Richard Prince, whose work and lawsuits will be discussed in further detail in Part III, became famous for re-photographing Marlboro cigarette advertisements and presenting them as fine art. (38) This style of art came to be known as "appropriation art," which has been defined as "the more or less direct taking over into a work of art a real object or even an existing work of art." (39)

      Often the goal of appropriation artists is not to present the borrowed images as their own but rather to criticize or comment on society, especially when using popular or highly commercial works. Neither Levine nor Prince made substantive changes to their borrowed imagery. Yet, the effect of placing these images in a different cultural setting was radical and gave new perspective and...