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 can bring a lawsuit under federal copyright law when they think these rights have been infringed by someone else.   The artist’s exclusive right to adaptation means that anyone else who wants to sample, appropriate, or otherwise use the work often has to get permission unless there is an applicable exception under copyright law.  Permission, in the form of a license, sometimes requires a fee.

A number of artists have argued that their copying of others’ work in their own creative work is a “fair use” of the original material, and in some cases they have succeeded.  The applicability of fair use, which features prominently in a number of sampling and appropriation cases, is a fact-specific test based on four different factors: (1) the purpose and character of the use, including whether such use is commercial in nature of for nonprofit educational purposes, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use on the potential market for or value of the copyrighted work.  Different courts have varied in their approaches to these factors, and there is no uniform instruction on how to weigh the factors against each other.  The Copyright Office maintains an index of fair use cases and Stanford University Libraries also hosts helpful summaries of cases.

New copyright cases are decided every year, so if you’re incorporating someone else’s material in your own art, be aware that the legal standards may be changing. Copying of protected works without either a license or an applicable exception may expose you to a suit for copyright infringement and, if the copyright owner is successful, an award of actual or statutory damages.

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