Music Sampling Should be Fair Use

In 2019, Lil Nas X’s song “Old Town Road” became the longest-running song on the Billboard 100 Hot List in history. “Old Town Road,” a song best labeled as “country-rap,” had never been heard before, or better yet, had never been done well enough to garner as much mainstream attention (lookout for Nelly yelling, “What about Florida Georgia Line!”).

However, for Lil Nas X to use a portion of Nine Inch Nails’ “34 Ghosts IV” track in his chart-topping, genre-bending hit, he was required to license the use of a “sample” of their song – or possibly be subject to copyright infringement. A music sample is a portion of a sound recording reused in a new song. But should not a work that was so genre-bending, so game-changing, so transformative, be unique enough to get copyright protection of its own? Shouldn’t work like this be free of the requirement of sampling clearances. Doesn’t work like this appeal to copyright’s principles? More and more, it appears the courts are leaning towards yes.

This year, the Second Circuit stated that Drake’s use of a 35-second clip of Jimmy Smith’s song “Jimmy Smith Rap” in “Pound Cake” was fair use, which begs the question: Why aren’t more song samples considered fair use? Or more importantly, why haven’t the courts given greater protections to artists who sample prior works? Listen to the two songs and think about what you are hearing. I believe that Drake transformed this song into something that is an original piece of work. There was minimal copying, and by creating this, Drake did not harm the artist who created “Jimmy Smith Rap.” The Second Circuit appears to agree with me in this case.

Now, this does not mean copyright infringement cannot occur from artists’ sampling of others’ works. Artists can copy another’s work by recreating their sounds in a way that is not creative. Or copying most of the sounds from another artist and using much of that sound in their work. My favorite is the dispute surrounding Vanilla Ice’s “Ice Ice Baby” and David Bowie’s “Under Pressure.”  Apparently, Vanilla Ice thinks that his sound was different from Bowie’s.

The goal of copyright is to protect creators of works, thus providing incentive to “Promote the Progress of Science.” Copyright protects authors by giving them a monopoly on their works for “limited times.” But copyright also intended prior works to inspire new compositions, which is why there are protections in place for authors. Copyright protects authors by giving them fair use and de minimus copying protections. As the Second Circuit said in Estate of James Oscar Smith v. Cash Money Records, a work is transformative when it “uses the copyrighted material itself for a purpose, or imbues it with character far different from that which it was created.”

Nine Inch Nails guitarist Trent Reznor believes Lil Nas X changed his work into something different, leading to some “weird situation” where he was now part of a song that was number one on the charts. Reznor states that his song’s use was significant to the creation of “Old Town Road,” but was it a substantial piece of the work? Even if it was substantial, wasn’t Lil Nas X’s transformation of Reznor’s song something of such ingenuity, character, and originality that it becomes different from the other work – thus no longer requiring clearance?

Objectors will say, “but the artist worked hard to create their work, shouldn’t they get protection for that?” This is not copyright’s goal. Copyright is not to reward people for hard work; it is to protect original works of authorship sparked by someone else’s work. The courts already give derivative rights protections (rights to future iterations of their work), so people stealing a song to make it their own is already protected. Making covers of another song has its protections. Here, I am talking about hearing an attractive clip or recording and incorporating that sound into a new piece in a way that is likely to be unrecognizable to the public due to heavy editing. 

It is also worth noting that many artists gain much of their revenue within the first 5-10 years of a song’s release date. So, wouldn’t a sample of a song taken after that period be sufficient? It would not hurt the record sales or steal listens from an audience; it would bring attention to that song through a person’s subconscious. If anything, this is helping the artist who created the sampled piece.

Listen to the following pairs of songs: Kanye West & Daft Punk; Beyonce & Led Zeppelin; Miley Cyrus & Slick Rick. Do these songs resemble each other? And if so, is the resemblance so unique, new, or original that it should be protected by copyright? Or were the parts taken just a small selection of what was in the original artist’s work?

I will leave it at this – artists should have a right to protect their works (which they do with derivative rights). But a sample should be fair use and therefore should not need clearance. Maybe the criteria designating a transformative work should be more explicit. Examples include using a song from a different genre, changing the tempo, adding different bass, or more succinctly, significantly altering the work such that it is an original twist on the prior work should count as transformative. Congress should more clearly tell artists that de minimus copying is allowed since the 1976 Copyright Act’s intent was to enable imitation of previous works, as long as a substantial portion of the actual sound is not reproduced. If the song has been released for over ten years and has seen either a drop in sales or has never had any significant sales numbers, it is fair use. But if you do sample a work, please, please, please do not do this.