Creative License: The Law and Culture of Digital Sampling

Article Source: Duke University Press, 2011
Publication Date:
Time to Read: 2 minute read
Written By:

 Kembrew McLeod

Kembrew McLeod



Digital sampling is the art of combining excerpts from existing music recordings to make new music. Musicians must navigate a cumbersome licensing process to obtain permission to use samples. Classic hip-hop recordings made in the 1980s could no longer be made today.


Policy Relevance:

Licensing tiny samples of music should not violate copyright law. The process for licensing samples should be reformed.


Key Takeaways:
  • The golden age of digital sampling began in the 1980s and ended in the early 1990s; artists included the Beastie Boys and Public Enemy. Early hip-hop music was made without licensing the samples.
  • Musical borrowing has a long history, as musicians build on other’s work. Fusion of music from different sources is a part of African-American culture.
  • Many samples incorporate two types of musical copyright, the copyright in the musical composition, and the copyright in the sound recording. Revenues are claimed by composers, songwriters, musicians, record labels, publishers, and others.
  • Samplers won some early lawsuits when only a “de minimus” sample was taken. But then an influential case ruled that every sample must be licensed.
    • Musicians hesitate to rely on a “fair use” defense.
    • Today, the convention is for all samples to be licensed.
  • The licensing process is complex, slow, and costly, and may not succeed.
    • Many licenses cost $4000-$5000 per sample, but can cost up to $100,000.
    • Any stakeholder can veto the grant of a license.
  • Classic albums like “Fear of a Black Planet” could not be made today due to the expense of licenses; the musicians would lose about $7,000,000 on the project.
  • Copyright owners would oppose a statutory compulsory license for sampling; artists prefer to control the presentation of their own work.
  • Reforming and clarifying copyright law to restore the “de minimus” defense would be helpful.
  • Performing Rights Organizations could negotiate new licensing arrangements to streamline sample licensing, though copyright owners would prefer to retain control.
  • The use of “Creative Commons” licenses that allow copying under certain circumstances might help revive sampling.



Peter DiCola

About Peter DiCola

Peter DiCola is an associate professor at Northwestern University School of Law. He received his J.D. as well as his Ph.D. in economics from the University of Michigan. His research has centered on the music industry and related industries. Currently, he is focusing on copyright law’s regime for digital sampling and deregulation in the radio industry. He uses empirical methods and applied economic models to study intellectual property law, media regulation, and their intersection.