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All Mixed Up: Concerns For Sampling in Music Post-Warhol

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On May 18, 2023, the United States Supreme Court published its decision regarding a major copyright case: Andy Warhol Foundation for the Visual Arts, Inc., Petitioner V. Lynn Goldsmith, et al. In an opinion in which seven of the Court’s Justices joined, the Court reimagined the considerations crucial to the first factor of copyright’s fair use analysis, essentially expanding its scope and establishing a new sliding-scale test in which the extent to which a work is transformative is considered in tandem with its commerciality. This article explores the impact this Warhol decision could have on the practice of sampling in music.

Warhol Changes the Copyright Infringement Test

Under federal copyright law, when assessing whether a secondary work infringes upon an original work, a court must turn to the four-factor test as delineated by the Supreme Court in Harper & Row, Publishers, Inc., et al. v. Nation Enterprises, et al. and since codified in 17 U.S. Code § 107. The first factor—which assesses “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes”—was the sole factor at issue in Warhol upon appeal to the nation’s highest court. The Court arrived at a new counterbalancing assessment for lower courts to consider when conducting a fair-use analysis: whereas previously a secondary work would make fair use of an original work if the secondary work was sufficiently transformative, that may no longer be the case if the secondary work is for a substantially similar commercial purpose as the original work; the closer in commercial purpose a secondary work is, the more transformative it must be to constitute a fair use.

Does this decision mean artists will no longer be able to make use of previous works? No. While Warhol may make it more risky or burdensome to do so, and while artists might be subsequently less incentivized to do so, artists are not barred from reappropriating copyrighted works in a transformative fashion. Even if the first factor weighs against the secondary artist, there are still three other fair-use factors to consider.

Because the Court was not able – in the context of the Warhol opinion – to demonstrate how this new analysis plays out in connection with the surrounding three factors, this decision may not be as damaging to the secondary users as it currently appears. Indeed, the Court points to this in its decision, reminding us that “the four statutory fair use factors may not ‘be treated in isolation, one from another. All are to be explored, and the results weighed together, in light of the purposes of copyright.’” Going forward, legal experts expect that this decision will cause courts to more heavily weigh commercial concerns like market competitiveness between the works when engaging in their fair use inquiries.

As courts begin to apply Warhol's first-factor doctrinal adjustment in full fair use analyses, we will get a better sense of how substantially impacted the commercial viability of transformative artistic expression is by this change.

Let’s take a closer look at one major area in which artists constantly make use of previous artists’ work: sampling.


Sampling—the process of reappropriating portions of sound recordings in new musical works—has for several decades been a major component of the music-making process for many well-established artists. Indeed, countless songs in hip-hop and electronic music have reached mainstream success through sampling the tunes of past performers, and such sampling techniques have played a central role in the careers of major artists from the likes of Kanye West to Daft Punk.

Sampling hardly fits neatly into the U.S. copyright framework; to the contrary, samples often exploit two copyrighted works at once—the sound recording from which the sample is sliced and the underlying musical composition. In this way, artists who employ samples in their tracks double their risk of legal liability. At a minimum, these artists double their own burden: having to obtain two licenses in order to clear a sample.

Further, unlike elsewhere in the federal copyright regime, the use of ‘samples’ is not so cleanly covered by a compulsory license. Since the only way to license a sound recording is through direct agreement with the original artist, clearing samples can be tedious, time-consuming, and expensive, as well as an unfortunate distraction from the creative process. Indeed, Kanye’s debut single Through the Wire took serendipitous convincing for Chaka Khan to begrudgingly clear use of her 1984 sound recording.

And uncleared samples can be even more costly; for example, Diddy famously purports to still pay Sting $5,000 per day some two-and-a-half decades removed from failing to clear a sample from The Police’s catalog on Diddy’s (then Puff Daddy) I’ll Be Missing You. Just as astoundingly, uncleared samples kept the entire early discography of hip-hop group De La Soul in digital darkness – obscured from streaming platforms like Spotify and Apple Music – until March of this year.

Unlicensed Samples & Available Legal Defenses

Artists who take the legal risk of proceeding without seeking permission for a sample must ensure that their use falls into one of two categories: a de minimis use, which is not copyright infringement, or a transformative use, for which any alleged infringement is unactionable.

For many, a de minimis argument is inapplicable. To start, the inconspicuousness and brevity required of the sample in order to raise this defense is often either unattainable or untenable for many sampling artists: a “use is de minimis only if the average audience would not recognize the appropriation.” Couple that with the fact that there is a circuit split calling into question the doctrine’s doctrinal feasibility and a de minimis defense gives artists very little ground to stand on.

In regard to those who have relied upon the transformativeness argument, artists can defend their craft as fair use if their new work has a change in purpose or a sufficient change in substance. Purpose is the easier transformation to decipher, as many of its uses are delineated in 17 U.S.C. 107, “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research;” courts have also clarified other such transformative purposes include sampling as parody and non-commercial experimentation. Drake’s fair use win in Estate of James Oscar Smith v. Cash Money Records, Inc., et al.—where he repurposed the audio of Jimmy Smith Rap to convey a different message from the original—serves as yet another example.

With regard to transformativeness of substance, so long as the sampling artist created a new work that was distinct from the initial sound recording sampled, the artist would not be infringing upon the copyright interests of the initial songwriter. Or so we thought.

Post-Warhol Makes Fair Use In Sampling Less Practicable

Now, let’s consider how Warhol affects the transformative fair use claim. Under Warhol, transformativeness of substance no longer guarantees a fair use. The same artist, once reassured by their creative input into the use of a sample that they were not committing copyright infringement, now must worry how their commercial use of the initial sound recording affects the amount to which they must be creative.

Take the Drake case for example. Certainly, Drake had a commercial purpose when repurposing the Jimmy Smith Rap sample for use in Pound Cake / Paris Morton Music 2: since its 2013 release, the song has been streamed over 241 million times on Spotify. Because Pound Cake shared ostensibly the same commercial purpose as Jimmy Smith Rap, would the Cash Money Records case have received a different verdict after Warhol? Is the amount he transformed the sample enough to counteract the song’s commerciality?

It is easy for one to see how the margin for error in sampling has been greatly reduced, opening the door for more circumstances than ever before to be considered infringing. Sampling is a clear loser post-Warhol, and artists who sample without clearances must endeavor to proceed with the utmost caution in transforming the original works.

Just a Sample: Could Compulsion Be The Fix?

The current U.S. copyright system lacks a non-clunky avenue for sampling licensing, and this has been criticized by musicians, industry figures, legal advocates alike. For example, when the Los Angeles Times published an article in 2021 insinuating that Daft Punk’s sample of an Eddie Johns record in their 2000 single One More Time went uncleared, Roots drummer Questlove took to Twitter to lambaste the law’s current sampling system. What solutions could be proposed to remedy this creativity-disincentivizing legal blunder?

Many have proposed a fairly intuitive fix: add a compulsory licensing regime to sound recordings akin to what already exists for licensing compositions. Instead of being ‘out of luck’ if the original artist says no, a compulsory license would give a sampling artist solid legal ground to fall back on. Industry input can be used to determine the best practices for incorporating a compulsory licensing fee to appease all sides—perhaps the compulsory rate could be percentage-based dependent on the amount of the original sound recording sampled. Exceptions could be established so as to not create disparate and unintended results. For example, such a sound recording compulsory license need not apply to audiovisual uses of the sound recording; a result to the contrary would disturb the current system of music licensing to film and television presently in place.

In replacing the hapless clearance crapshoot that has for decades frustrated and frozen careers, some semblance of certainty and predictability would finally be attainable for sampling artists under a compulsory licensing structure. Though such a structure has failed on several occasions to come to fruition, now may be the perfect time to reexamine its workability in light of Warhol.

To view a version of this article with full citations in footnote form, click the PDF link here.