Wednesday, April 8, 2009

The Great Debate: Borrowing or Infringement … That is the Question!

Article I, Section 8 of the United States Constitution empowers Congress “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” (emphasis added). And so it seems that the intention of the founding fathers was to use the means of exclusive rights to achieve the ends of promoting the progress of the “useful arts,” which is now defined far more broadly than the common definition of “writings.”

However, existing copyright laws provide exclusive rights that endure for the life of a creator of an original literary or artistic work and 70 years after the creator’s death. I posit that such an extension of copyright protection and the attendant requirements for licensing and permissions may seriously and negatively impact an individual creator’s ability to borrow from the wealth of existing creative works to create something new and transformative, particularly in the case of a collaborative medium like music.

An example of this hypothesis may best be illustrated by the real and burgeoning impact intellectual property laws have had on hip hop music, the producers of which regularly use “sampling” (use of a recording of a sound, or a portion of the previously existing sound recording), “looping” (repeating a sample over and over again to form a new rhythm) and “mashing” (combining the music of one song with the lyrics of another) as artistic tools to create a novel tapestry of music from existing bits of copyrighted works.

From the perspective of the Copyright Act, the sampling artist is expected to license the right to use the copyrighted work and pay licensing fees. But the nature of music in general (hip-hop in particular) as collaborative on the one hand, and the exclusive rights in a copyright holder to, among other things, copy and prepare derivative works from the original on the other, may place artistic freedom at odds with intellectual property laws.

Historically the law always seems to lag far behind technology and the area of copyright law is the poster child for this reality. So what do you think? Should hip hop and other collaborative art forms bow down to the existing exclusive intellectual property regime? Or should intellectual property laws affecting music evolve to incorporate a collaborative framework that allows for broader fair use exceptions in this arena? Which best serves the constitutional call to promote “useful arts” and further enrich the public benefit?

Tonya M. Evans, Assistant Professor of Law, Widener University School of Law

Author, Copyright Companion for Writers

(Image by Michael Cramer)

1 comment:

  1. professor evans:

    in my view, hip hop owes no allegiance to existing copyright law. the copyright laws were formulated to deal with a very different reality than what exists today and congress has been slow to drag the copyright law protecting intellectual property into the modern era. i believe that creativity is squelched by forcing artists that sample and mash to pay licensing fees.

    fair use should protect those that borrow to create something new.


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