Music sampling has suffered a strange fate at the hands of copyright law. It should fare well under the fair use doctrine. In general, it's very transformative, uses small amounts of the copyrighted work, and there exists little possibility that the new work would serve as any plausible substitute for the old. Yet there are precious few cases that even address the application of fair use to music sampling.
I'm afraid much of this is due to the refusal of music publishers, record labels -- and even artists -- to raise the defense in the first place. A case in point: The Sixth Circuit's recent decision in Bridgeport Music v. Justin Combs Publishing, which affirmed copyright infringement liability against the defendants, including Bad Boy Records, the label founded and still headed by CEO Sean "Diddy" Combs. (The opinion also reversed an absurd punitive damage award. Read a full copy of the decision here.)
The case focused on the title track from The Notorious B.I.G.'s 1994 breakout album Ready To Die. That track sampled approximately five seconds of horns from Singin' In The Morning by the Ohio Players. Again, this use would seem to fit very well into the fair use doctrine: B.I.G. used a short piece of the song in issue to make a completely new song with a completely new sound, which could not possibly substitute for the original recording.
Here is an excerpt so you can judge for yourself; listen for the horns.
Diddy (CEO of Bad Boy) and B.I.G. (real name Christopher Wallace and, sadly, deceased more than 10 years) are giants of hip-hop music, a genre that has always been underpinned by fantastically innovative sampling that lets us experience old sounds in new ways. If anyone would rise to defend the legality of this technique, and the wonderful creativity is spawns, I would think it would be Diddy and his label (even if it is half-owned by Warner). Yet the fair use defense is nowhere to be found in the Sixth Circuit decision, and was apparently not raised by the defendants. Why is that?
Was it inadvertence? I doubt it. Was it a "strategic decision?" Perhaps, but if so, it was a bad one in hindsight. Or was it simply a reluctance to raise a defense that lots of music publishers and record labels fear -- one that supposedly threatens their "control" over their music, and by extension, over future creativity and musical expression?
The question I'm left with is why, Diddy? Why didn't you -- an artist who has helped shape this art form that uses sampling so beautifully and so creatively -- stand up for the right to sample?