Excerpted From: Mark Anderson, Fair Use as Reparations, 60 California Western Law Review 109 (Fall, 2023) (220 Footnotes) (Full Document)

MarkAndersonUnited States jurisprudence has long recognized the central purpose of copyright law: to benefit the public welfare by giving copyright holders a monopoly over their work. Protecting artists has never been a central goal of copyright law. While artists receive some reward by having a copyrighted work--such as the ability to sell licenses to use such a work--that reward did not catalyze copyright law's development. Rather, a young United States government appeared to be reacting against Great Britain in order to encourage innovation. Indeed, the Framers' primary concern was not the copright holder's welfare, but rather public welfare. George Washington, addressing the first federal Congress during its second session, emphasized that “[t]here is nothing, which can better deserve your patrionage, than the promotion of Science and Literature. Knowledge is in every Country the surest basis of public happiness.” Over 150 years later, the Supreme Court of the United States, in Mazer v. Stein, reaffirmed that the public welfare--not the copyright holder's welfare--is central to U.S. copyright law.

Musical artists should and often do receive substantial compensation for their work due to U.S. copyright law. U.S. copyright law, however, has historically failed to protect Black musicians when compared to the protections afforded to their white counterparts. Specifically, Black rap artists and Black digital sampling artists have historically been regarded as “thieves,” while their white counterparts have been allowed to appropriate the creativity of Black artists.

Two popular extremes are American rock and roll artist Elvis Presley and electronic music artist Moby. On the one hand, Elvis Presley copied songs by Black artists, which excluded those artists from mainstream success. On the other hand, Moby sampled Black artists' old recordings without paying the authors of the work he sampled. Copyright's failure to protect Black musicians from white appropriation is worthy of reparation. Whether Elvis's or Moby's music benefitted the public welfare through their appropriation of Black blues music is a colorable argument; but the problem remains that Black artists have historically been excluded from the copyright protection afforded to white artists and have faced judicial prejudice while seeking copyright benefits.

Reparations for Black musicians is timely and appropriate. First, created in 2020, California's Reparations Task Force evidences current desire in California to seriously consider reparations for Black Americans. A 2022 interim report issued by the Reparations Task Force recommends that reparations can be issued to Black Californians by “[compensating] individuals who have been deprived of rightful profits for their artistic, creative, athletic, and intellectual work” and by “ensuring access to ... royalties for cultural, intellectual, and artistic production ....” Revising fair use the way this Comment suggests aligns with these recommendations.

Second, reparations for Black musicians is appropriate because copyright law's failure to protect Black artists denied Black families the power to build generational wealth. For example, because the United States copyright system functions to protect the copyright holder, the people who produce the work are not necessarily protected. Further, the informal manner in which Black blues musicians in the mid-twentieth century created contracts covering the rights to their music was insufficient to withstand legal scrutiny. As a result, Black blues musicians like Bessie Jones and Vera Hall and their heirs never realized the financial benefit of Jones's and Hall's contributions to American music. Both Jones's and Hall's respective songs “Sometimes” and “Trouble So Hard” allowed Moby to achieve widespread commercial success with his album Play. This injustice deserves remedy, and copyright law's fair use defense may have the power to provide reparations to today's Black musicians.

Currently, certain artistic subgroups and cultures are reclaiming musical territory using musical techniques like digital sampling. These artists compose the burgeoning Bronx Drill Rap scene, a Black-dominated musical space. Bronx Drill Rap, often referred to as “Bronx Drill” or “Sample Drill,” is characterized by its “nostalgic-yet-modern sound.” Lyrically, Bronx Drill artists rap aggressively and incorporate regional slang. Stylistically, Bronx Drill relies heavily on digital sampling, and the samples are embellished with gliding basslines and emphatic snares. A standard practice among Bronx Drill producers is to forego licensing samples before using them. Without passing legal judgment on the implications of failing to license a sample, this Comment contends that the practice demonstrates an area which copyright law would normally fail to protect, despite the public benefit that arises from, and the artistic creativity required for, digital sampling. Emerging Bronx Drill artists may wish to assert the fair use defense as opposed to licensing a sample before use. Fair use, however, tends to fail to protect digital sampling.

If fair use protects digital sampling, a fair use defense can provide reparations to Black digital sampling artists. While a range of solutions exist to arrive at the ideal fair use analysis including legislative action, general intervention, compulsory licenses, and complex fee arrangement schemes, the problem of what constitutes fair use can be solved through mere judicial interpretation. Digital sampling within Bronx Drill is a clear avenue to understand how courts can modify the fair use analysis to provide reparations to Black digital sampling artists.

Part I will begin by situating this Comment within the context of W.E.B. Du Bois's final chapter of The Souls of Black Folk. This discussion will support the assertion that all American music is indeed Black music and that digital sampling is a Black art form. Next, Part I will discuss the Disc Jockey's (“DJ”) role in creating the foundation for modern digital sampling by focusing on three 1970s New York DJs and subsequent musical developments that led to modern digital sampling. Finally, Part I will conclude by explaining what Bronx Drill is and its importance relative to copyright's fair use defense.

Part II will discuss generally the current state of the law surrounding digital sampling. This will include a discussion on copyright law in general, the fair use defense to copyright infringement claims, the process of licensing a sound recording for use as a sample, and relevant fair use cases discussing digital sampling.

Part III will conclude by suggesting an artist-centered framework for applying copyright's fair use defense as one avenue for reparations. Specifically, a court considering fair use should reframe its understanding of both the first and second fair use factors to properly bring digital sampling within fair use's scope. Reframing the analysis concerning these two factors the way that this Comment suggests may ultimately provide one form of reparations to Black digital sampling artists.

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Using the proposals this Comment promotes fair use as a viable legal option to issue reparations to Black Americans. Additionally, Bronx Drill provides fertile grounds for courts to implement this Comment's proposals to issue such reparations. Implementing this Comment's proposals would be a daunting and undoubtedly controversial task; yet U.S. courts have the authority to take the first step toward making meaningful reparations without any legislative action. Indeed, fair use gives U.S. courts leeway to reframe the analysis under the first two factors in accordance with this Comment's suggestions. Legal scholarship should continue to discuss viable options for reparations in the copyright context to lessen the courts' burden of deciding how to adequately proceed.

“Reparations” provokes intensely conflicting viewpoints. Understanding how a revised fair use analysis provides a sufficient form of reparations, however, may stimulate more receptivity to reparations amongst its opponents. For example, economic reparations may seem untimely, result in compensating disagreeing recipients, or place the blame for slavery on truly blameless parties. Alternatively, the form of reparations this Comment suggests requires mere concession of greater legal protection to Black digital sampling artists who defend against copyright infringement claims. This proposal, moreover, is narrow because it applies only to digital sampling. Fair use would also still have to be assessed as a whole, which means this Comment's proposals for revising fair use are tempered by the fact that fair use itself is a balancing test.

Ultimately, copyright's failure to protect Black musicians is worthy of reparation. Black musicians have indisputably contributed overwhelming benefits to American culture, including the creation of many of America's most popular musical genres. Hip hop and the proliferation of digital sampling are no exceptions. Yet, copyright's failure to protect Black musicians and Black digital sampling artists reveals that current understandings of U.S. copyright law fail to value those contributions. Reframing the fair use analysis is one way that courts can recognize Black musicians' contributions to American musical culture. Further, reframing fair use will allow courts to take the first step in repairing the harm copyright law has historically inflicted on Black musicians. American music owes its existence to Black musicians, and legal recognition of that assertion is warranted.

J.D. Candidate, California Western School of Law, 2024, Senior Lead Articles Editor for California Western Law Review; B.A. Comparative Literature with High Distinction, University of California, Berkeley, 2021.