Economic View of Legal Restrictions on Musical Borrowing and Appropriation, An

Intellectual Property and Copyright and Trademark

Article Snapshot


Peter DiCola


in Making and Unmaking Intellectual Property, Mario Biagioli, Peter Jaszi, and Martha Woodmansee, eds., University of Chicago Press, 2011, pp. 235-249


Argues that using an economic framework to analyze music sampling reveals that copyright law might distort creativity.

Policy Relevance

Musicians use existing music in creating new music all the time. This borrowing is often done through music samples, which highlights how copyright law treats different kinds of musical borrowing differently. The result of this is a possible distortion of a musician’s creativity.

Main Points

  • Music sampling is a very common way that musicians borrow music from other artists as they create new pieces of work. This type of borrowing is most popular in hip-hop, electronica, and pop.
  • The U.S. Copyright Code, and court decisions applying it, have determined that different types of musical borrowing require different sorts or numbers of licenses. Many songs require two sets of licenses, while a cover song, if a faithful rendition, requires just one compulsory license.
  • Unfortunately, the state of the law is not crystal clear and musicians are often left wondering whether their use is a “fair use,” which does not require a license, or a use that does require licensing.
  • An economic analysis of copyright law can divide musical inputs into five categories:

    • Public-domain works
    • Non-infringing elements of copyrighted works
    • Entire copyrighted musical compositions
    • Portions of copyrighted musical compositions that infringe
    • Portions of copyrighted sound recordings that infringe
  • More than one of these categories can be implicated by a musical work. Moreover, the boundaries between the categories are soft and that can make it hard to determine where a sample or appropriation ought to fall.
  • The ambiguity in musical copyright law makes an artist’s licensing fees hard to predict. It also increases their transaction costs in getting a license. All these costs also affect whether an artist devotes more time to recording or touring in crafting their business model.
  • The result may be that artists sometimes have distorted incentives not to create new music. On the other hand, the legal boundaries may have the paradoxical effect of giving an artist the satisfaction of transgressing a boundary and thus have political, social, or enjoyment benefits for the artist.
  • The line drawn by copyright law may or may not be affecting artist’s creativity, but the controversy over music sampling suggests that it may at least be out of balance in that particular area.

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