Fair Use : Factor Four
(and (4) The effect of the use upon the potential market for or value of the copyrighted work;
Courts have characterized this factor as "undoubtedly the single most important element of fair use." FN1 It is an affirmative defense for the accused samplist to argue that the sample did not adversely affect the market for the copyrighted song. Given that samplists often appropriate sounds from older songs, it is unlikely that the sample will negatively effect the market of the original work. FN2.
In a case involving a search engine's use of thumbnail images in its search results, the court surmised that a transformative work is less likely to have an adverse effect than one which merely supersedes the original. The search engine's use of copyright holder's images in its thumbnails does not harm the market for the images or the value of his images. The thumbnails would guide people to the copyright holder's work rather than away from it. Kelly v. Arriba Soft Corporation, 280 F.3d 934 (CA9 2002).
One
could argue that in a sampling context, the de minimis element is tantamount
to a thumbnail image and that by sampling another artist, the samplist
is referring the listener to the sampled artist's work rather than away
from it. Moreover, a song containing samples in a completely different
musical environment can never become a valid substitute for the original
work. Furthermore, when the original song is several years old, its market
has dissipated over time. Two different works in two different genres
simply do not exist in a common market of sale.
It is possible, however, that no matter how catchy a particular original song may be, a proliferation of samplist appropriation may render it so common that it (or its derivative use) may lose commercial appeal. This argument is known in musician vernacular as "playing a song out." If people hear the song too much, they will grow tired of it. Samplists could very well work a song to death. This is indeed a valid argument. However, fragmentary appropriation cannot usurp the essence of an original work. If the samplist appropriates a frequently sampled song, it is his or her own work that will suffer chides of being "played out." In fact, it is quite refreshing to hear original versions of songs that have been excessively sampled in the same way a bottle of water can be a better thirst-quencher than the bevy of exotic concoctions in your corner bodega's fridge. Again, excessive sampling can only increase the sampled artist's popularity and expose the artist to an audience that may have never encountered the artist in the first place. If imitation is the sincerest form of flattery, then sampling is the sincerest form of the sincerest form.
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Footnotes:
FN1: See 17 U.S.C. § 107(3) (1988); Basic Books, Inc. v. Kinko's Graphics Corp., 758 F. Supp. 1522, 1533-34 (S.D.N.Y. 1991).
FN2:
Don Snowden,
"Sampling: Creative Tool or License to Steal?: The Controversy",
LOS ANGELES TIMES, August 6, 1989, at 61.
"Some of the benefits [of being sampled] have filtered back to those
early R&B performers. Bobby Byrd, who formed the Famous Flames and
arranged for James Brown to join the group in the '50s, had been recording
and producing gospel music in Tennessee after parting company with Brown
in 1981. Two years ago, Byrd found himself with a rejuvenated career in
Europe when some of his solo records from the mid-'60s were sampled --
most notably when Eric B. & Rakim prominently featured Byrd's 'I Know
You Got Soul" in their rap of the same name. Byrd recently completed
his third English tour since 1987 -- the last two leading a full revue
of veteran James Brown vocalists and band members. 'I want to be the first
to stand and say that if it hadn't been for the rappers, these things
would not have happened to the singers of the '50s, '60s and '70s,' said
Byrd by phone from his Georgia home. 'This has revitalized and re-energized
a lot of us.'"
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Related Links :
Kelly v. Arriba Soft Corporation, 280 F.3d 934 (CA9 2002).
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