It was in the home of Grandmaster Flash in South Bronx, in the early 1970's, where he and DJ Kool Herc birthed what would be the greatest most successful genre of music to bless Planet Earth[1]. As the history goes though, it was on 11th August, 1973 when DJ Kool Herc mixed some R&B [Rhythm and Blues] records isolating the drums and rhymed over the beat that really got the crowd "going" at the party. That approval from the crowd is what sowed the seeds of Modern Hip-Hop and Rap music[2]. Grandmaster Flash would mix and master R&B record on a drum loop for rappers to display their lyrical prowess on the beat.

Post Kool Herc's crowd moving performance Grandmaster Flash and Afrika Bambaataa started performing shows and gained a distinctive recognition for this particular sound within the African-American Community. Soon everyone came to know of this sound as "Hip-Hop"[3]. Thus, one can see how the foundation of this genre is laid on sampling previously recorded music. In fact, in the words of the RZA of the Wu Tang Clan, member of a successful Hip-Hop group, sampling is more like a painter's palette rather than a photocopy machine[4].

A sampler is the actual digital audio tool used by music producers to sample. It can be either a stand-alone machine or software. It is similar to a synthesizer but instead of generating sounds as a synthesizer does, it captures pre-recorded sounds. Ultimately, sampled sounds, whether created live or adopted from a pre-existing work, are mixed with other sounds during production. Thus, the artist can cut and paste sampled sounds into a new musical context, either in original or modified form.

Sampling is not used for convenience or to pass off another's creativity as one's own. On the contrary, sampling is another way of arranging and performing sounds in the creative process of making music. In their early days, hip hop producers ran wild with the technology without any particular thought for, or concern with, the legal repercussions. Public Enemy, another successful hip-hop group, emerged and distinguished itself as a sampling-as-art trailblazer by incorporating hundreds of samples into their legendary 1988 album, It Takes a Nation of Millions to Hold Us Back.

The group combined the samples in an exceptional way to create a new, radical sound that would change the way music was created and experienced. To create a masterpiece of such stature today, would require pockets deep and heavy to pay for the "clearance" of those samples, something underground artists barely can afford.

Many musicians take samples or parts of the song from the copyrighted works of other musicians. If you plan to commercially release your music, you probably will need to get written permission from the copyright owners of any music that you are sampling or any sound that you are using. Otherwise, one can be sued for copyright infringement which will prevent the distribution of the song. This process involving the right to use someone's sample in a song is called sample clearance.

1. What Is Digital Sampling?

   Digital sound sampling enables an artist to appropriate the distinct tonal qualities of a particular vocal or instrumental sound and insert it into a different musical context[5]. The duration of that "sound" can range from a minute to a single second, and may be derived from a live performance or an existing sound recording. Increasingly, studio artists source material directly from sample "libraries" sold in compact disc or computer disc format. This sampling process comprises three steps: Digital Recording; Computer Analysis With Possible Alteration; And Playback.
   
   The sampling unit that carries out this process has been described as "a computerized combination of a tape recorder and a camera". Sounds are stored in the memory of the sampler's microprocessor. Once the sound is in the sampler, the musician can then use the sampler's built-in functions to alter the parameters of the sound if desired.
   
   It is virtually impossible to detect any discrepancy between the original sound and its playback equivalent since the computerized resolution corresponds to the upper range detectable by the human ear. Once digitally recorded, the sound may be reproduced exactly or altered in anyway. For example, pitch, rhythm, speed, tone, timbre, or volume can be modified at the touch of a button. The artist then typically inserts the sample into a separate composition.
   
   Either the sample is used to punctuate the new track at various intervals or it can be 'looped' in continuous repetition to provide backing rhythm[6]. With this technology, artists can thereby record entire "new" songs combining elements from previous songs: a drum beat from one source, a melody from a second, a vocal from a third, guitar riffs from a fourth, a horn blast from another and so on. More frequently, artists create hybrid songs by merging samples from other works with their own original music.
    

2. Sampler As A Music Instrument

   The sampler is considered a musical instrument and an essential tool of the trade by hip hop producers, rather than just an innovative technological tool. Sampled copyright holders, on the other hand, frequently see the sampler as a theft device that jeopardises the commercial viability of their intellectual property. Hip hop artists acknowledge this duality, and in many cases even embrace it as the type of counter-culture 'Robin Hood-ism'[7] that historically has fuelled resistance movements of the disenfranchised.
   
   The sampler is not only used in hip-hop but is used widely throughout the music industry. The cultural origins and artistic motivations of sampling in hip hop music extend to and through New York, Jamaica, and Africa, making sampling especially important to the genre and culture[8]. The artistic process of digital sampling, like the music that results from it, is rooted in and inextricably linked to the African diasporic aesthetic, which carefully selects available media, texts, and contexts for performance use[9]. Part of that diasporic experience is rooted in Jamaica, the birthplace of the DJ who brought Jamaican travelling parties to the Bronx.
    

The Conundrum Of Copyright Laws Regarding Music Sampling

It would be imperative in this regard that we analyse Indian and American laws that govern the sampling of music and bring out the differences between the two legal regimes. The United States of America is one of the pioneers of having strict laws to protect Intellectual Property Rights. This is also evident in the massive role played by the US in the development of the TRIPS Agreement through a different approach in negotiations[10].

The US effectively implements intricate laws that ensure copyrights and govern licensing and sampling. Quite distinguishingly, the US Copyright law defines "literary works" and "sound-recording" interrelatedly, yet having a different interpretation.

"Literary works" are defined as, "works, other than audio-visual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied."

While a "sound-recording" is defined as, "works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audio-visual work, regardless of the nature of the material objects, such as disks, tapes, or other phonorecords, in which they are embodied."

Indian Copyright Act, 1957 also differentiates quite similarly, between 'musical works' and 'sound recording'. The Copyright Act is designed to protect the rights of the owners of the musical works. If the composer composes music for a film and is incorporated in the sound track, the producer alone has copyright and the composer has none. Composer's right under Section 13(4) is only otherwise than as part of the film.

First owner of the copyright of lyrics and musical works shall be the authors unless it is shown that such work was made in course of author's employment under a contract of service or apprenticeship with his employer and there is no agreement to the contrary as regards retention of copyright.[11]

The word 'original' does not in this connection mean that the work must be the expression or original or inventive thought. Copyright Acts are not concerned with the origin of ideas, but with the expression of thought; and in the case of 'literary work' with the expression of thought in print or writing. The originality which is required relates to the expression of the thought; but the Act does not require that the expression must be in an original or novel form, but that the work must not be copied from another work, that it should originate from the author.[12]

Let us now understand Copyright Law regarding sound recordings and their sampling thereof.

Copyright Laws: A Short Analysis

Copyright, in case of a musical work, has been defined, in India, as an exclusive right to reproduce the work or store in electronic means, to issue new copies to the public, to perform the work in public, to make any cinematograph film or sound recording, to make any translation, make any adaptation of the work; in case of a sound recording, to make any other sound recording embodying it, to sell it, to communicate the recording to the public.[13]

Copyright is a multiple right consisting of a bundle of different rights in the same work. Author of a copyright work either assigns the whole or part of his rights to others to exploit economically for a lumpsum consideration. In alternative, he may licence all or some of his rights to others usually on the basis of a royalty payment. An assignment may be general i.e., without limitations or an assignment may be subject to limitations. It may be for the whole term of the copyright or any part thereof. An assignment transfers an interest in, and deals with the copyright itself as provided under Section 14 of the Act, but licence does not convey the copyright but only grants a right to do something, which in the absence of licence would be unlawful.[14]

The Indian Copyright Act differs vastly from the American Act, the Indian Act does not specifically address the issue of 'sampling' of work. It delves into areas of protection of the rights of the owner of the copyright and has, jurisprudentially, developed the permissibility of sampling the original 'sound recording' to create a new 'sound recording'. As far as sampling of music goes, the US Law operates, taking a hard-line approach, through the creation of various provisions under Section 114.

The first clause excludes the performance of sound recordings in public, while affirming a majority of the rights enlisted under Section 106. The second clause is where we focus our analysis, it lays down that the right of the owner of copyright is only limited to right to duplicate the sound recording in form of copies and the right to prepare a derivative work is only available so long as the actual sounds are rearranged and/or remixed. A derivative work is a song that is derived from another existing work of music, this right, to make a derivative work, of the owner does not however extend to other sound recordings that may have sampled or imitated the copyrighted sound recording.

This means that if a person were to sing and publish a song already sung, performed and published by another band, that band would only have the copyright over the copies of their song and not the song being sung by the person even if the lyrics and instrumentals are the exact same. This was established by a very famous case law, Bleistein v. Donaldson Lithographing Company[15], Justice Holmes delivered the opinion of the Supreme Court, in this regard, as:
Even if they had been drawn from the life, that fact would not deprive them of protection. The opposite proposition would mean that a portrait by Velasquez or Whistler was common property because others might try their hand on the same face. Others are free to copy the original. They are not free to copy the copy.

Further, Section 115 lays down the need for obtaining compulsory license from the owner of copyright to enjoy any of the rights laid down under Section 106(1), (2) and (3), which includes the right to make a derivative work. 115(a)(1)(A) entails the purpose of such license to make and distribute phonorecords of a nondramatic musical work, including by means of digital phonorecord delivery.

A person may obtain a compulsory license only if the primary purpose in making phonorecords of the musical work is to distribute them to the public for private use, including by means of digital phonorecord delivery. The regime that changes unauthorised sampling for producers is further listed in (2)(A) of the same section as a privilege of obtaining a license, musical arrangement. This clause states that the licensee can arrange the sound recording without changing its melody or essence unless expressly consented to by the owner of the copyright.

A similarity needs to be drawn between the express requirement of a license in the US Law and the Indian law. Section 18, 19 of the Copyright Act, 1957 specifies the requirement of a license from the first owner of the copyright in order to reproduce or exercise any right exclusive to the copyright owner. In the matter of Deshmukh and Co. (Publishers) (P) Ltd. v. Avinash Vishnu Khandekar, the Hon'ble Court differentiated substantially the provisions of Sections 18 and 19 of assigning copyrights and licensing of copyright.

An assignment transfers title in the copyright, a licence merely permits certain things to be done by the licensee. The assignee being invested with the title in the copyright may reassign. The licence is personal, and therefore, not transferable or assignable without the grantor's consent. Furthermore, the assignee can sue for infringement without joining the assignor. The licensee cannot sue in his own name for infringement of the copyright, since copyright belongs to the licensor.

The copyright comprises of schedule rights which can be exercised independent of each other. The licence is a personal right which cannot be transferred except in certain circumstances. Licence is a right to do some positive act. Licence is a personal right and creates no more personal obligation between a licensor and licensee. The licence is generally revocable at the will of the grantor.[16]

There are different kinds of licences. A licence may be exclusive or non-exclusive licence means a licence which confers on licensor or licensee and persons authorised by him to the exclusion of all other persons (including the owner of the copyright) any right comprised in the copyright in a work. In the case of non-exclusive licence, the owner of copyright retains the right to grant licences to more than one person or to exercise it himself. Licence is a personal right and licensee may not always be entitled to make alterations to the terms.[17]

The pronouncement of the US Supreme Court in Bleistein case is solely why high school bands in the US can "cover" famous songs and put them on a tape for distribution. The point of concern here is, if only the owner of the copyright or the licensee has the right to make derivative works from the original sound recordings[18], are the producers, that sample such works to form another independent work, guilty of infringement? The answer to this question calls for an analysis of a landmark judgement and the provisions in Act concerning copyright infringement.

What Is Copyright Infringement?

Section 501, defines copyright infringement as when any person without permission or authorisation infringes one or many rights of the copyright owner. However, the infringement of such a right has to be proved by the owner of the copyright in the sense that he has to show unlawful appropriation of his work by the infringer.

Unlawful appropriation of original work was extensively discussed in the case of Newton v. Diamond[19], in which a test was laid down to determine what amounts to infringement. The US Court of Appeals was to decide whether the "choir" made by the plaintiff was infringed by the Beastie Boys, another hip-hop/rock group, or if the use was so unsubstantial so as to not amount to copyright infringement.

The Court remarkably relied on the age-old settled doctrine of de minimis use, which is short for de minimis non curat lex. This means that, the law does not concern itself with trifles. This is a widely used defence in cases of copyright infringement, which is to say that the sample used is a minimal use of the original work.

In Newton's case, the Court held that unless an original work has been substantially copied it will not be regarded as copyright infringement, through the Chief Judge who pronounced that, "even where the fact of copying is conceded, no legal consequences will follow from that fact unless the copying is substantial. The principle that trivial copying does not constitute actionable infringement has long been a part of copyright law."

De minimis use is essentially based on the average-audience rule, which is to say, it is considered as infringement if the average audience can recognise the sample copied or taken from the original work. It creates a bridge between minimal use and substantial similarity rule, which is that if the average listener, unless they are looking for similarities between the work and the sample, can make out the similarity between the two works regarding one as the other, then the work is said to be substantially similar to the sampled work[20].

Music samples used in creation of hip-hop music are not very often litigated for copyright infringement, since they are considered as minimal use. The thin line between infringement and non-infringement lies in the provisions created by Section 107, in terms of fair use. Fair use as described by Section 107 is a limitation on the exclusive rights that the owner of the copyright enjoys.

Precisely, fair use means when any copyrighted work is, for the purposes of education, criticism, comment and research, copied or used, it will not amount to infringement of copyright. In furtherance of the doctrine of de minimis and fair use we must understand the case law developed regarding sampling of music in the famous Bridgeport case.

Bridgeport V. Dimension Films

In this case the company Bridgeport Music Inc. and Westbound Records along with other plaintiffs sued Dimension Films, No Limits Films and 800 other defendants for copyright infringement due to blatant sampling of music without permission[21], one of the cases, that caught the public eye and quite fortunately resulted in settlement of the law when it comes to the defence of de minimis against copyright infringement, was the case against No Limits Films.

The dispute arose from the digital sampling of Funkadelic's, a rock band, song "Get Off Your Ass and Jam" (hereinafter referred to as "Get Off") by N.W.A. in their song 100 Miles and Runnin (hereinafter referred to as 100 Miles) for the film "I Got the Hook Up" produced by No Limits Films.

Bridgeport took the matter to a federal judge, who ruled that the incident did not violate copyright law. The United States Court of Appeals for the Sixth Circuit overturned the decision, ruling that the sampling violated copyright law. Their argument was that, in the case of a sound recording, the owner of the copyright of a work had the exclusive right to duplicate the work.

A certain sound recording of Get Off was sampled and looped for 16 beats on five occasions on the song 100 Miles while the district court was appreciative of the de minimis defence used by No Limits Films, the court of appeal did see it that way, the court theorised that what cannot be stolen wholly cannot also be stolen in parts, thus redefining the de minimis defence when it comes to unauthorised sampling of copyrighted songs and highlighting the provisions of Section 114(b), i.e., only the copyright owner has the exclusive right to sample the music thereby forming a derivative work.

According to this interpretation of copyright law, using any section of a work, regardless of length, would be a violation of copyright unless the copyright owner granted permission. In its decision, the court wrote: "Get a license or do not sample. We do not see this as stifling creativity in any significant way."

Due to this ruling of the Court of Appeal, the Copyright law in the US concerning sampling of music has taken a turn, now the producers cannot sample any song for commercial release without authorisation from the owner of the copyright. This feeds into a monopolistic narrative, wherein majority of artists make music "for hire" for record label companies that sell licenses and copyrights at rather unaffordable rates.

The Bridgeport decision, which logically may be sound, in the sense of its ruling in the stolen property, it fails to appreciate the complexities of creation of music and honour the fact that for transformative change and innovation in music, the building blocks are the existing work which are not only a stepping stone in terms of learning but also a contribution to the development of new music.

Artists Flouting Sampling Laws

Vast majority of sampling cases settle out of court for substantial sums. This is largely because litigation usually pitches the plaintiff record company against the sampler's record company as co-defendant, and the record companies are all too aware that their positions could be reversed at any time; that is, today's plaintiff could be tomorrow's defendant. Therefore, private settlements are preferred because they avoid the cost of litigation, the risk of spawning a series of retaliatory actions and, most importantly, the risk of the court setting an adverse precedent.

Yet many artists flout sampling laws and use unauthorized samples mainly due to 2 barriers. The first barrier is a practical one. For an artist to obtain permission to use the sample, the copyright owner(s) must be identified. Yet it is often difficult to trace the copyright owner because copyright in an artist's music may be split among several different companies. For example, when San Francisco attorney Mark Grundberg attempted to get permission for his client band.

The Evolution Committee, to sample a Public Enemy song, he was referred to eight different people at three different record companies over a period of two months because nobody knew who had authority to license the material. Tracking down the correct copyright owners would probably be even more difficult in the case of older or more obscure material[22].

The second barrier to authorized sampling is financial. Assuming an artist is able to locate the copyright owner and is granted permission to use the sample, a licensing fee is payable. By all accounts, the costs involved in obtaining licenses are substantial. According to Michael Ashburne, an American copyright lawyer, "it costs between 30 and 40 thousand US dollars for a record that utilises sampling extensively."[23]

Why Licensing & Copyright Is So Strict?

The Copyright Act protects original works of authorship fixed in a tangible medium of expression. However, both traditional and current concepts of copyright are premised on a paradigm that presumes borrowing is generally antithetical to creativity and innovation and that creative works worthy of protection are always created independently.

This presumption, beyond being largely unsubstantiated, actually has an onerous impact on musicians who historically have used collaboration and borrowing regularly in the creative process. Additionally, this unsupported presumption has disregarded the importance of copying in the creative process and has left its value under-appreciated and under-theorized in copyright doctrine.

As per the Copyright Law of the United States, anyone who, without the consent of the performers involved:

1. Fixes the sounds or sounds and images of a live musical performance in a copy or phonorecord, or reproduces copies or phonorecords of such a performance from an unauthorized fixation,
    
2. Transmits or otherwise communicates to the public the sounds or sounds and images of a live musical performance, or
    
3. distributes or offers to distribute, sells or offers to sell, rents or offers to rent, or traffics in any copy or phonorecord fixed as described in paragraph, regardless of whether the fixations occurred in the United States, shall be subject to the remedies provided in sections 502 through 505, to the same extent as an infringer of copyright. This is known as Unauthorized Fixation and Trafficking in Sound Recordings and Music Videos.

Whether Copyright Laws Are Stifling Creativity In Any Significant Way?

Only one can stifle their own creativity. Music is a form of art that inspires artists for generations to come. It is but natural for an artist to pay homage to a song that established his love for this industry and sometimes artists portray this inspiration by using a significant but small part of the song in their own work, which for them is the best tribute they can give to an artist whose songs and existence they are grateful for.

The modern music industry is a multi-billion dollar business. It is an industry founded, in particular, upon intellectual property rights and copyright. Consequently, record companies are swift to enforce their rights in order to maintain and increase their market share. In this respect, unauthorised sampling is not just a matter of exploiting the work of the original artist - indeed, it threatens to undermine the economic structure of the music industry[24].

On the same lines, not all artists are fortunate enough to be recognised and be a part of the economic structure of this industry. Many artists include samples from songs and samples available on the internet in their work in order to complete the song and release it on platforms that support such budding artists such as SoundCloud.

Most commonly, an artist samples in order to create an association between a prior work and his or her own composition. This motivation may be honourable, as in the case where an artist wants to pay tribute to the work of a musician whose work he or she admires. For example, on the Garbage Album, Version 2.0, the song "Push It" features authorised samples from the Beach Boys' Brian Wilson and solo artist Chrissie Hynde. The band felt that sampling was a way of paying homage to those artists[25].

Creativity is defined as the tendency to generate or recognize ideas, alternatives, or possibilities that may be useful in solving problems, communicating with others, and entertaining ourselves and others[26]. Creative tendencies can be influenced by already existing forms of art which push artists and entertainers to take inspiration from original songs to include in their own songs.

One may argue that the limited scope of copyright fails to recognise inspiration within its purview. By broadly terming something as an infringement of copyright takes away the very essence of Hip Hop which is built on taking inspiration from an already published work of music. However, copyright laws do not ban unlicensed sampling of music nor do they ban 'free samples' which come from unknown sources.

The laws only rely on a simple doctrine of Substantial Similarity, if an unlicensed sample is used in a sound recording and the audience cannot recognise that sample as the original work of art, in that case, the sampling is substantially different and unique from the original work of art. Substantial similarity only plays at the laws of infringement if a sample is similar to the original work of art, then it falls under copyright infringement.

Inferentially, it may seem as if the Copyright Laws are limiting the growth of an art form that is built on the foundation of skillful arrangement of various sounds, the reality, however, is to the contrary. In fact, the settled principles of law regarding copyright infringement, be it in the United States of America or India, dictate that while to use any sound recording for the purposes of reproduction of that recording, the consent of the first owner is necessary, this rule may not apply where a sound recording has been reproduced but a listener of the sampled recording cannot tell if it was copied or same as the original recording.

To elaborate, the surest and safest test to determine whether or not there has been a violation of copyright is to see if the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original.[27]

Thereafter, the Hon'ble Supreme Court developed a two prong test for copyright infringement, this test determines whether the rights of a copyright-holder have been infringed. The test requires substantial similarity between the original and infringing works, and the challenged work to be a copy of the original work.[28]

In Eastern Book Company v. D.B. Modak[29] the Supreme Court laid down that in order to test whether a piece of work has been infringed, one must test it on the following grounds:

1. Originality
2. Substantial Similarity

The Court first examined if the concerned work is original or if there are any substantial similarities between the original work and the work in question. The original work should be the product of an exercise of skill and judgment and it is a workable yet fair standard. The sweat of the brow approach to originality is too low a standard which shifts the balance of copyright protection too far in favour of the owner's right and fails to allow copyright to protect the public's interest in maximising the production and dissemination of intellectual works. On the other hand, the creativity standard of originality is too high.[30]

When it came to the test of substantial similarity, the test laid down by this Hon'ble Court in the case of R.G. Anand is widely accepted and followed by the Courts. The Court, in the Eastern Book case, elucidated further that the selection and arrangement can be viewed as typical and at best the result of the labour, skill and investment of capital lacking even minimal creativity. It does not as a whole display sufficient originality so as to amount to an original work of the author.

To support copyright, there must be some substantive variation and not merely a trivial variation, not the variation of the type where limited/unique ways of expression are available and an author selects one of them which can be said to be a garden variety. Novelty or invention or innovative idea is not the requirement for protection of copyright but it does require minimal degree of creativity. The aforesaid inputs put by the appellants in the copy-edited judgments do not touch the standard of creativity required for copyright.[31]

It was further emphasised by the Hon'ble Court that Setting of paragraphs by the appellants of their own in the judgment entailed the exercise of the brain work, reading and understanding of subject of disputes, different issues involved, statutory provisions applicable and interpretation of the same and then dividing them in different paragraphs so that chain of thoughts and process of statement of facts and the application of law relevant to the topic discussed is not disturbed, would require full understanding of the entire subject of the judgment.

Making paragraphs in a judgment could not be called a mechanical process. It requires careful consideration, discernment and choice and thus it can be called as a work of an author. Creation of paragraphs would obviously require extensive reading, careful study of subject and the exercise of judgment to make paragraph which has dealt with particular aspect of the case, and separating intermixing of a different subject.

Creation of paragraphs by separating them from the passage would require knowledge, sound judgment and legal skill. This exercise and creation thereof have a flavour of minimum amount of creativity.[32] Therefore, keeping the jurisprudence in mind, sampling of music is something that is allowed.

In fact, the stringency of the laws pertaining to protection of the original work serve two purposes:

1. The obvious protection of the copyright
2. Encouraging diversification in the production of music by laying down the four corners what is considered creativity and originality.
3. Conclusion

The Hon'ble Court has recognised the effort and skill that goes into rearrangement of various sound recordings each 'tweaked' to sound substantially different from the original work and mixing these recordings perfectly to form a rhythm and mix entirely different from the original work of the samples used.

If anything, the Copyright regime established encourages the growth of Hip-Hop Music by condoning and acknowledging the effort, creativity and skill that goes into production of music by setting clear and fair boundaries of what is considered as copying and what is inspired work substantially different than the original.

Hip-Hop Producers can only use these four-corners to skilfully master and mix samples so as to reflect their study, knowledge, and understanding of the original works to change that sound entirely into something different and what propels growth is its greed for skill and effort.

Hip Hop was a term in the early 80s that most people looked down upon as compared to its exponential outreach and recognition that now unites cultures and people around the world. Hip Hop involves sampling a lot of previously published music, sampling is an intricate skill that has been misunderstood by many as stealing an artist's original work. To the contrary, when we look at the works of Kanye West, Dr Dre, DJ Premier and Alchemist to name a few, we understand that sampling is a means and not an end that inspires a number people, including the abovenamed to be the torch-bearers and keep the flame of Hip Hop burning.

Copyright laws are enacted to protect the artists' original music. While many may construe these laws as a hinderance to the growth of Hip Hop, for example when J. Cole said on his 2014 album Forest Hills Drive that he wishes that whatever music is released should be open to use by other artists.

He doesn't ignore the fact that the person who has made the original music has certain copyrights over it, thereby, implying while copyright laws exist to protect the original work, they end up encouraging creativity in the manner in which the music is sampled. Copyright laws leave an open window when they lay down the test for copyright infringement. To fit through that window, is the benchmark that new producers can work up to and end up exponentially taking the game ahead. To conclude, an artist is never bound by law, their art is.

End-Notes:

1. Lynch, J., 2018. For the first time in history, hip-hop has surpassed rock to become the most popular music genre, according to Nielsen. [online] Business Insider. Available at: [Accessed 28 July 2021].
2. Davey D, The History of Hip Hop, Davey D'S Hip Hop Corner, http://www.daveyd.com/raptitle.html (last visited 26th July, 2021).
3. Zack O'Malley Greenburg, The Man Who Invented Hip Hop, FORBES, http://www.forbes.com/2009/07/09/afrika-bambaataa-hip-hop-music-business-entertainment-cash-kings-bambaataa.html.
4. The Rza, The Wu-Tang Manual 192 (2005).
5. Byram, "Digital Sound Sampling and a Federal Right of Publicity: Is it Live or is it MacIntosh?" (1990) 10 Computer Law Journal 365.
6. Sievwright, Its No Use Crying: The Copyright Implications of Digital Sampling (1992) (unpublished thesis, University of Auckland) 4.
7. How Copyright Law Changed Hip Hop: An Interview with Public Enemy's Chuck D and Hank Shocklee, STAY FREE!
8. Henry Self, Digital Sampling: A Cultural Perspective, 9 UCLA ENT. L. REV. 347, 358 (2002)
9. Andrew Bartlett, Airshafts, Loudspeakers, and the Hip Hop Sample: Contexts and African American Musical Aesthetics, 28 AF. AM. REV. 639 (1994)
10. Wto.org. n.d. WTO | Understanding the WTO - Intellectual property: protection and enforcement. [online] Available at: [Accessed 31 July 2021].
11. Indian Performing Right Society Ltd. v. Eastern Indian Motion Pictures Assn., (1977) 2 SCC 820.
12. University of London Press Ltd. v. University Tutorial Press Ltd., (1916) 2 Ch 601 and Macmillan & Co. Ltd. v. K. and J. Cooper, (1923-24) 51 IA 109: AIR 1924 PC 75, 85.
13. Indian Performing Rights Society v. Eastern Indian Motion Pictures Association [AIR 1977 SC 1443].
14. Deshmukh and Co. (Publishers) (P) Ltd. v. Avinash Vishnu Khandekar, (2005) 3 Mah LJ 387.
15. (1903) 188 U.S. 239.
16. Deshmukh and Co. (Publishers) (P) Ltd. v. Avinash Vishnu Khandekar, (2005) 3 Mah LJ 387.
17. Deshmukh and Co. (Publishers) (P) Ltd. v. Avinash Vishnu Khandekar, (2005) 3 Mah LJ 387.
18. Section 115(a)(2), U.S.C.
19. 388 F.3d 1189 (9th Cir. 2003).
20. Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986).
21. Bridgeport Music, inc. v. Dimension Films 410 f.3d 792 (6th Cir. 2005).
22. James Meyer of Polygram Ltd, quoted in Upton & Mende, "Deconstructing Music Sampling: Questions Arise and Practice Becomes Increasingly Common" (1997) 218 (87) New York Law Journal, S3 Col I ay 57
23. Ashbume, "Sampling Issues in the Music Industry" (1994) 212 (10) New York Law Journal 5, 6
24. Sievwright, Its No Use Crying: The Copyright Implications of Digital Sampling (1992) (un- published thesis, University of Auckland) 4.
25. Garbage Interview: 1998 Album Release, MTV On-line @
26. Human Motivation, 3rd ed., by Robert E. Franken, Pg 396.
27. R.G. Anand v. Delux Films, (1978) 4 SCC 118.
28. K.M. Gopakumar and V.K. Unni, Perspectives on Copyright: The "Karishma" Controversy, 38 Economic & Political Weekly 2935, 2935 (2003
29. (2008) 1 SCC 1.
30. CCH Canadian Ltd. v. Law Society of Upper Canada 204 F Supp 2d 1244, 1249-50 (C.D. Cal 2002).
31. Eastern Book Company v. D.B. Modak, (2008) 1 SCC 1.
32. Eastern Book Company v. D.B. Modak, (2008) 1 SCC 1.

Written By:

1. Arjun Divekar And
2. Esham Karanjikar