This Article presents an empirical study on the effect that digital sampling has on sales of copyrighted songs and how this effect should influence the fair use analysis. To conduct this research, a group of previously sampled songs had to be identified and sales information for these songs collected. The over 350 songs sampled in musician Gregg Gillis’s (AKA Girl Talk’s) most recent album presents an ideal dataset because the album’s instantaneous popularity allows for its influence to be analyzed through a comparison of the sampled songs’ sales immediately before and after release. Collecting and comparing sales information for these songs found that — to a 92.5% degree of statistical significance — the copyrighted songs sold better in the year after being sampled relative to the year before. To the extent that the Copyright Act instructs courts to analyze (among other considerations) the effect that an alleged fair use has on the potential market for the original work, these findings favor the conclusion that digital sampling is a fair use (though each statutory fair use consideration should still be reviewed).
Additionally, the songs sampled in the subject album were evaluated to ascertain the length of each sample and to what degree each sampled song had experienced prior commercial success. This collected data was used to test the hypothesis that sampled songs which were more recognizable to listeners (e.g., songs that were commercial hits or songs that were sampled for a relatively longer period) would see a greater sales increase after being sampled. The collected data did not find a correlation in post-sampling sales increases and sample length or prior commercial success, but further study may be warranted.
Beyond supporting the premise that digital sampling may constitute fair use, the results of this study raise several notable issues and subjects for future study. One such issue is that courts only address an alleged fair use’s effect on the market for the original as a binary system, wherein the only options are harm to the market (disfavoring fair use) or no harm to the market (favoring fair use). There is no accepted rule on how to treat a market benefit (such as the one evidenced here). The failure to address this issue is questionable because a market benefit actually furthers the utilitarian goal of copyright by incentivizing the creation of new works through economic gain. The current research makes clear the need for precedent on how the fair use analysis should treat actions (e.g., digital sampling) that may increase sales of the original work. Additionally, this study sets the ground work for an objective financial review of fair use and market effect, which would yield needed predictability and stability to the fair use doctrine (at least, with regard to digital sampling).