A lot of music genres wouldn’t exist without samples, but too much sampling can sometimes fray tempers.
Interestingly, new research suggests that this shouldn’t necessarily be the case as the use of samples may actually boost sales of the original tracks.
These findings come from an article titled “Fair Use, Girl Talk, and Digital Sampling: An Empirical Study of Music Sampling’s Effect on the Market for Copyrighted Works,” of which a draft version was published a few days ago.
At the center of the study is Girl Talk‘s album All Day. Girl Talk is the stage name of Gregg Gillis, who is renowned for sampling the works of hundreds of other artists without obtaining licenses.
As a result, many music platforms refuse to carry Girl Talk’s music, even though Gillis argues that his sampling is fair use. Whether the fair use argument holds up has yet to be seen, as none of the sampled artists has taken Girl Talk to court.
In the new study, patent attorney Mike Schuster examines the effect Girl Talk’s sampling has on actual sales. With 374 sampled songs, All Day is an interesting example to assess whether the samples help or hurt sales, and the results are quite clear.
“This study found that within the bounds of Girl Talk’s All Day, the unlicensed sampling actually benefited sales of the sampled songs,” Schuster writes.
The findings are valid at a 92.5% degree of statistical significance and appear to be unrelated to factors such as sample length and previous success. While Schuster recognizes that his research is just an initial step, he hopes that it will make courts recognize the positive effects of sampling.
“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).”
The study notes that in this case both the original artists and Girl Talk would benefit from considering the samples as fair use. This is something the courts should take into account.
“There is no accepted rule on how to treat a market benefit. 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,” Schuster writes.
Whether the major record labels will agree with this stance has yet to be seen. For now, Girl Talk will continue his trademark use of samples and his new album is expected to drop soon on Illegal Art.