Sampling Increases Music Sales: An Empirical Copyright Study

• Published date: 01 March 2019
• DOI: http://doi.org/10.1111/ablj.12137
• Date: 01 March 2019

American Business Law Journal

Volume 56, Issue 1, 177–229, Spring 2019

Sampling Increases Music Sales: An

Empirical Copyright Study

Mike Schuster,*David Mitchell** and Kenneth Brown***

The Supreme Court instructs that the most important consideration in analyzing fair use

is the effect on the market for the original. Employing music sales data, this article presents

evidence of digital sampling’s effect on the sales of sampled songs. Our results indicate

that a reassessment of fair use in the area of music sampling is needed since sales of sam-

pled songs increased after being repurposed within new songs. These results are robust

and highly statistically significant. Findings of this nature favor a judicial determination

that sampling constitutes a fair use, even when considering the influence that a new work

has on extant licensing markets for sample clearance. This article argues that the current

sample–licensing market is a product of aberrant antisampling case law arising from a

lack of relevant empirical data and nonutilitarian judicial opinions. As set forth herein,

the goal of encouraging creative activity without hindering copyright owners’ capacity to

financially gain from their work is served by implementing a limited presumption of fair

use for sampling. The findings are further applicable outside of the fair use analysis, as

the study is important in the private law when viewed through a law and strategy lens.

Forward thinking music firms should reframe their approach by encouraging sampling of

their works to secure cost-free advertising and achieve a competitive advantage.

INTRODUCTION

Modern copyright jurisprudence is rife with instances of difficulty adopting

analog-era laws to new technologies.

1

Developments in the music industry

*Mike Schuster is an Assistant Professor of Legal Studies at Oklahoma State University’s

Spears School of Business.

**David Mitchell is a Professor of Economics at Missouri State University.

***Kenneth Brown is a Professor of Economics at Missouri State University.

1

Tomas A. Lipinski, The Developing Legal Infrastructure and the Globalization of Information:

Constructing a Framework for Critical Choices in the New Millennium Internet—Character, Content

and Confusion,6R

ICH. J.L. & TECH. 19, *22 (Winter 1999–2000) (“This difficulty of applying

copyright concepts from the analog world to the digital world has not escaped comment by

scholars.”) (citations omitted), https://scholarship.richmond.edu/jolt/vol6/iss4/4.

©2019 The Authors

American Business Law Journal ©2019 Academy of Legal Studies in Business

177

are no different. One example is the question of how sampling—using a

small portion of an earlier song as a building block in a new composition

2

—

should be handled under copyright law. Some commenters argue this is per

se infringement.

3

Others assert that sampling does not infringe because it is

a “fair use”—a doctrine that allows for liability-free use of copyrighted mate-

rial in certain instances.

4

A primary consideration in the fair use analysis is

how the new work influences the market for the original.

5

This article presents an empirical study of sampling’s effect on the sales

of copyrighted works. To conduct the research, we cataloged a group of

sampled songs and collected their relevant sales information. To this end,

the authors identified and analyzed a set of songs sampled by works

appearing in the Billboard Music Year End Charts for 2006–15. The inves-

tigation found that, to a 99.99% degree of statistical significance, sales of

sampled songs increased after being repurposed in a new work.

6

This article proceeds in five parts. Part I introduces the intersection of copy-

right law, sampling, and fair use. It includes a review of the extant literature

and relevant court decisions. This part discusses an earlier empirical study on

sampling as advertising, upon which this article improves through the use of

more nuanced statistical analysis, a better data set, and an investigation into the

strength of the advertising effect as a function of particular attributes of the

sample. Parts II and III introduce the data set and its analysis, finding a statisti-

cally significant increase in sales for original works after being sampled. The

third part also addresses how attributes of the sampling, such as the sample

2

Woolfsongs Ltd. v. Slaughterhouse, LLC, No. CV1503049TJHJCX, 2016 WL 6662721, at

*1 (C.D. Cal. Feb. 5, 2016).

3

See David J. Gunkel, Rethinking the Digital Remix: Mash-ups and the Metaphysics of Sound

Recording, 31 POPULAR MUSIC &SOC’Y489, 501–02 (2008) (“For opponents and critics, the

[sample–based] mash–up is definitely puerile and patently criminal. It consists of an illegal

appropriation and illegitimate fusion of plundered materials that violates both copyright

law and existing industry standards and practices.”); Tracy L. Reilly, Debunking the Top Three

Myths of Digital Sampling: An Endorsement of the Bridgeport Music Court’s Attempt to Afford

“Sound” Copyright Protection to Sound Recordings,31C

OLUM. J.L. & ARTS 355, 357 (2008). See

also infra notes 46–52, 62–63 and accompanying text (discussing Bridgeport Music, Inc.

v. Dimension Films, 410 F.3d 792 (6th Cir. 2005)).

4

See Eric Shimanoff, The Odd Couple: Postmodern Culture and Copyright Law,11MEDIA L. &

POL’Y, 12, 31–39 (2002) (describing and applying fair use doctrine).

5

See infra Part I.C.4. See also Stephen McIntyre, Private Rights and Public Wrongs: Fair Use as

a Remedy for Private Censorship,48G

ONZ.L.REV. 61, 71 (2013).

6

See infra Part III.

178 Vol. 56 / American Business Law Journal

including lyrics from the original or being pervasively used throughout th e

new work, also positively correlate with sales increases. The final two substan-

tive parts discuss policy implications of these findings—one relevant to private

law and the second to public law.

Part IV e xamines how these findings can be used strategically by music

firms. We argue that these companies would be wise to allow cost-free sam-

pling of their works to create competitive advantage in the form of free

advertising and increased sales. In Part V, we propose that courts adopt a

limited presumption of fair use for sampling based on the analysis included

herein and positive externalities that arise from this legal standard.

I. COPYRIGHT,FAIR USE,AND SAMPLING

An investigation into the intersection of copyright, fair use, and sampling

requires an appreciation of the current state of the law and the path

thereto. This part of the article will, accordingly, review the goals of

copyright, the law of fair use, and their intersection with the music indus-

try. The final section discusses how rational actors, relying on question-

able legal precedent, decided to grossly expand the scope of the

sampling license market, which would in turn unintentionally erode the

viability of the fair use defense in the field.

A. Copyright Law

The United States copyright system is utilitarian in nature, such that the

grant of limited monopoly rights over one’s works is used to incentivize

increased creative activity.

7

This goal is mandated by the Constitution, which

states that copyright should “promote the Progress of Science and useful

Arts”

8

by encouraging authorship of new works.

9

A corollary to this aim is

7

See Lydia Pallas Loren, The Pope’s Copyright? Aligning Incentives with Reality by Using Creative

Motivation to Shape Copyright Protection,69L

A.L.REV. 1, 6 (2008) (“[Copyright] law grants

protection for copyrighted works in order to achieve a goal––the advancement of knowl-

edge and learning.” (citation omitted)).

8

U.S. CONST.art. I, § 8, cl. 8.

9

Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 558 (1985) (stating that

Founders intended copyright “to be the engine of free expression,” and not necessarily

authorship); Lindsay Warren Bowen, Jr., Note, Givings and the Next Copyright Deferment,

77 FORDHAM L. REV. 809, 813–14 (2008).

2019 / Sampling Increases Music Sales 179