A few weeks ago, rap artist Tyga’s latest album “Careless World: The Rise of the Last King” was pulled from retail stores and online outlets because one of the songs featured ten seconds of Dr. Martin Luther King Jr.’s “I Have a Dream” speech. Last week, according to The Inquisitr, rappers Jay Z and Kanye West settled a copyright infringement case with Sly Johnson over an unauthorized sample of his song on the Watch the Throne album. Both these cases highlight the continued problem of music sampling. Sampling, the process of using previously recorded sounds and incorporating them into a new work, has consistently been at odds with copyright law, which prohibits the copying of other works. Copyright litigation and sampling fees have definitely impacted creativity in music, especially for hip hop artists.

Historically, hip hop music has always relied on sampling. Early hip hop artists used what they had at their disposal, like old vinyl records and turn tables, to make most of the classic hip hop tracks. This heavy reliance on samples continued into the 1980s, with the development of sampling and synthesizer machines helping to create albums like Public Enemy’s “It Takes a Nation of Millions to Hold Us Back,” which contained hundreds of samples. When hip hop began to become profitable, the music industry began to enforce its copyrights. The case Grand Upright Music, Ltd. v. Warner Bros Records Inc. illustrates the shift in attitude within the music industry about the free use of music samples. Despite the history of sampling in hip hop, the court held that rapper Biz Markie’s unauthorized use of Gilbert O’Sullivan’s song “Alone Again (Naturally)” was copyright infringement. The court held for the first time that music sampling was “stealing” and that samples must be preapproved by the original copyright owners before use. Ever since this case, hip hop artists have struggled to stay true to their art while avoiding litigation over sampling.

Musical artists do have options in this sampling dilemma. The artist can get the sample cleared for use in their new work. With music, there is a copyright for both the sound recording and the musical composition within the recording. Getting musical compositions cleared is simple — the artist would just seek a license from the appropriate compulsory licensing system organization, such as the Harry Fox Agency, for the statutory royalty rate. Getting sound recordings cleared is a little more difficult because there is no compulsory system and no statutory rate limits. The artist has to track down the information for the copyright holder of the sound recording, normally a music label or a publishing company, and request in writing permission to sample the sound recording. Then there are negotiations between the artist seeking the sample and the copyright holder over terms like ownership of the new work, royalties, form of compensation (flat fees, rolling fees, or ongoing royalties), how to credit the copyright holder, the extent of use and other important scope terms. These negotiations can go on for several months, delaying the artist’s album release or even ending with no deal at all and thus no permission to use the sample.

Alternatively, the artist can release his or her music using the sample without prior permission and hope that a defense under the Copyright Act applies. One of these defenses is independent fixation of music, where the artist re-records a sound recording using a band covering the original song. The Copyright Act does not extend infringement to mere sound recording covers even though the new song imitates the old song under section 114(b) of the Copyright Act. However, hiring a band to re-record a sound recording can be expensive, especially for an independent artist with a small budget, and sometimes a band cannot capture the sound recording exactly. Another defense is de minimis use — that the portion used was so small that the average audience would not recognize it or associate the two works as the same. The disadvantage of using this defense is that it is unpredictable: neither the courts nor the Copyright Act have defined how many notes, beats, or seconds of a sound recording are permissible as de minimis use. Additionally, some jurisdictions have completely eliminated this defense: the Sixth Circuit, for instance, held in Bridgeport Music Inc. v. Dimension Films that sampling, regardless of the amount taken, is copyright infringement when not authorized.

The artist could also release his or her music and claim fair use under Section 107 of the Copyright Act. The fair use defense limits copyright owners’ exclusive rights for the purpose of “criticism, comment, news reporting, teaching, scholarship, or research.” The court normally analyzes whether a work is eligible for fair use protection by looking at four factors: the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect on the market for the original work. After Acuff-Rose Music, Inc. v. Campbell, a case involving the rap group 2 Live Crew’s use of Roy Orbison’s “Oh, Pretty Woman” lyrics and music, courts have leaned toward finding fair use when the new work is “transformative.” If the artist simply samples a portion of a sound recording and the rest of the song is not “transformed,” the artist probably will not get fair use protection.

Finally, if the artist cannot get the sample cleared in time and wishes to avoid the risk of expensive litigation, the artist can choose not to use the sample at all. While this option saves the expense of preclearance and litigation, it also has a chilling effect on creativity and undermines the Constitutional principle behind copyright law, which is to promote “the Progress of Science and useful Arts.”

If Tyga cannot get the sample of Dr. King’s speech cleared quickly, I believe he will probably opt to delete that track from his album altogether, despite his desire to help a younger generation better understand King’s struggle and message by incorporating the iconic speech into his song. With the sampling lawsuit settled by Kanye West and Jay Z as an example of how time-consuming and expensive a sampling dispute can be, Tyga may shy away from using samples in the future. Regardless of how this matter is resolved, these issues with sampling are ongoing. The difficulty of the preclearance process, the expense and unpredictability of litigation, and the chilling effect of such processes on creativity all begs the question of whether copyright law is helping or hurting music. For hip hop, the answer seems to be that it is hurting.