DIGITAL SAMPLING OF MUSIC AND COPYRIGHTS: IS IT INFRINGEMENT, FAIR USE, OR SHOULD WE JUST FLIP A COIN?
D.J. Girl Talk is one of the budding artists in the music industry today, and his instrument is a laptop. D.J. Girl Talk (hereinafter also referred to as “Girl Talk”), whose real name is Gregg Gillis, “samples,” or uses short clips, from other artists’ songs to create popular dance music. Girl Talk’s songs combine old, contemporary, and downright odd genres of music. Within these different genres, he samples from artists such as Clipse, Kelly Clarkson, and Hot Chip. At his live concerts, D.J. Girl Talk leads massive crowds who dance non-stop to his songs. Girl Talk’s songs fill the concert with energy and sometimes end with Girl Talk shirtless, or even stripped down to his boxers. While Girl Talk has had musical success creating songs from samples of other songs, some artists and producers believe that D.J. Girl Talk is using these samples illegally. This has caused iTunes and a CD distributor to stop carrying Girl Talk’s album, “Night Ripper,” due to growing legal concerns.
United States copyright law generally requires that artists obtain permission from the copyright owner before using a work. Still, D.J. Girl Talk believes that his works are valid under the “fair use” exception of copyright law. Girl Talk believes that the Fair Use Doctrine applies because his samples are too brief and his music sounds so different from the songs he samples that it is unlikely to affect the sales of those songs. Due to little statutory guidance and inconsistent court rulings in the 1990s and 2000s sampling cases, there is still a great deal of confusion as to what constitutes valid or invalid “sampling” practices. This has led many commentators to suggest ways of solving this dilemma.
This article addresses whether digital sampling is copyright infringement and concludes that copyright law should be amended to fix the uncertainty surrounding copyright as it relates to digital sampling. Part I provides a background on digital sampling. Part II analyzes whether D.J. Girl Talk’s musical works fall under the current exceptions to copyright infringement. Part III proposes a change to copyright legislation that gives the music industry more guidance. Part IV concludes that D.J. Girl Talk’s compositions fall under the exceptions to copyright infringement, but that adoption of the proposed legislation will be more in line with the goals and fairness sought for copyright law.
*Christopher Collie & Eric Gorman