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Hastings Communications and Entertainment Law Journal

Authors

Vera Golosker

Abstract

The music industry faces copyright protection issues in light of the transformative digital sampling trend, which has carved out a new genre: mash-up. Without obtaining licensing agreements, creators of mash-up music use parts of copyrighted songs as the ingredients for a fusion of sounds that arguably amounts to more creative value than the sum of its parts. In confronting the legality of mash-up music, courts and legislators must strike a balance between securing original artists' interest and promoting new frontiers of expression. This article presents a background of digital sampling, applies the fair use defense to mash-up music, and proposes that the doctrine include protection for artistic re-contextualization. A sophisticated level of transformation, exhibited by artists such as Girl Talk, reintroduce the original songs to modern consumers' ears. This exposure, as well as changing notions of originality and accessibility, can explain the absence of legal challenge for Girl Talk, who used 372 unlicensed samples in his last album, All Day. Indeed, mash-up music pays tribute to sampled artists, and taps into current trends of consumption. By offering a dynamic musical experience that is novel, yet nostalgic, mash-up artists can give consumers an innovative product worthy of the fair use defense.

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