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Sampling and Appropriation

Licensing and "fair use" are both ways of legally incorporating another person's work into your own art.

Sampling and appropriation are popular techniques in which artists use preexisting work as a springboard for their own creativity.  Modern recording software and photo editing programs have made it easy and inexpensive for artists to make exact copies of existing music and images.  Free hosting, filesharing, and searching services for audio, pictures, and video on the Internet have made it nearly effortless to distribute your own work and to find others’ work for inspiration and adaptation.  The law attempts to balance the advancement of the arts through sampling and appropriation with the right of artists to profit by licensing their work.

Most of the legal activity around sampling and appropriation focuses on copyright law.  Whenever an artist takes a photograph, composes a new song, records a performance, or otherwise creates a new work, copyright law gives the artist exclusive rights to publish, distribute, and adapt that work.  Copyright owners often sue when they think these rights have been infringed by someone else.   The artist’s exclusive right to adaptation means that, typically, anyone else who wants to sample, appropriate, or otherwise use the work has to get permission.  Permission, in the form of a license, sometimes requires a fee.

The law of copyright is complicated with respect to sampling and appropriation because a license is not always required.  A number of artists have argued that their copying is a “fair use” of the original material, and in some cases they have succeeded.  The applicability of the fair-use defense, which features prominently in a number of sampling and appropriation cases, is hard to predict in advance because it is a very fact-specific test based on four different factors.  Different courts have varied in their approaches to these factors, and there is no clear instruction on how to weigh the factors against each other.

New copyright cases are decided every year, so if you’re borrowing someone else’s material for your art, be aware that the legal standards may be changing. Copying without either a license or a fair-use exception exposes you to a copyright infringement suit, which can be very costly.

This section does not intend to address the important topic of an artist's copyrights in their own work.  Links to sites that provide more information on that can be found through the our Laws, Cases, and Other Resources page.

The Basics

A quick intro to the important topics on sampling and appropriation.

What You Need to Know

The ways copyright law is most likely to affect your art that involves sampling and appropriation.

Laws, Cases, and Other Resources

A more in-depth discussion of the laws and cases that shape copyright, fair use, and other legal concepts important to sampling and appropriation.