Fuller and Abdenour (2018)

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1. Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare 2. Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)? 3. Harmony of interest assumption between authors and publishers (creators and producers/investors) 4. Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption) 5. Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)

A. Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right) B. Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction) C. Mass digitisation/orphan works (non-use; extended collective licensing) D. Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability) E. Fair remuneration (levies; copyright contracts) F. Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Source Details

Fuller and Abdenour (2018)
Title: It’s Bigger Than Hip-Hop: Sampling and the Emergence of the Market Enhancement Model in Fair Use Case Law
Author(s): P. Brooks Fuller, Jesse Abdenour
Year: 2018
Citation: Fuller, P.B and Abdenour, J (2018) It’s Bigger Than Hip-Hop: Sampling and the Emergence of the Market Enhancement Model in Fair Use Case Law. Journalism and Mass Communication Quarterly, 1 - 25.
Link(s): Definitive
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About the Data
Data Description: The study assesses 27 court cases concerning fair use, and in particular factors of transformative use and market effect. Each case was codified depending on the market theory applied (either market enhancement, pure market substitute, or cultural/audience market factors).
Data Type: Primary and Secondary data
Secondary Data Sources:
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Cross Country Study?: No
Comparative Study?: No
Literature review?: No
Government or policy study?: No
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Abstract

“Sampling” copyrighted works to create new expression has a rich history in creative culture, particularly in hip-hop music, a genre that values revision and recontextualization. However, courts are mixed on whether sampling should be considered fair use. Many courts have found that sampling harms the original artist’s ability to license copyrighted material, thereby diminishing the work’s marketability. But some courts recognize that sampling can enhance the market for the original work. The present study explores the tension between these opposing fair use models—what we call the “pure market substitute” and “market enhancement” models—currently percolating in lower courts. Through an analysis of cases involving hip-hop sampling and similar practices, we argue that the “market enhancement” model, which considers cultural and audience characteristics that impact marketability, better serves the goals of copyright law and should be more widely adopted. We further recommend that courts consider three factors when analyzing market impact in fair use sampling cases: provable effects of the sample on the market for the original work, the nature and duration of the original author’s market participation, and the similarity between markets for the original and secondary works.’

Main Results of the Study

The study finds that the majority of court cases examined (thirteen of twenty seven) base fair use decisions on a theory of pure market substitution, e.g. whether the secondary work may be severable in valuable parts in derivative markets. The authors note that this stance demonstrates a presumption of equivalence and harm, without any consideration as to the cultural context of the original and secondary works.

Only eight of the twenty seven cases surveyed applied a “market enhancement model”, which recognises that non transformative uses have the capacity to “reignite public interest” in works that e.g. may no longer be available for purchase by the public (and ergo increasing the market for the original). This may occur in cases concerning “homages” (see e.g. Faulkner Literary Rights, LLC v Sony Pictures Classics, 2013). Similarly to this, three of the twenty seven cases demonstrated court awareness of cultural factors and audience characteristics, and overall context-sensitivity. This includes an assessment of e.g. the value of overt borrowing in hip-hop markets (quoting the case of Drake’s “Jimmy Smith rap”), seemingly broadening market analysis.

Policy Implications as Stated By Author

The study finds that a “pure market substitution” theory of market effect is currently applied in fair use cases. The authors note that this approach tends to ignore context-specific factors, such as cultural intricacies, or how sampling may be a social good that amplifies otherwise marginalised voices. Furthermore, such an approach may also determine future decisions in the digital era such as e.g. meme culture. Instead, the authors suggest that the “market enhancement” theory should be a guiding principle, of which three factors apply: first, a comprehensive assessment of market effect (rather than simply the content of harm); second, considerations as to how long the original work has gone unexploited, and; third, the “distance” between original and secondary markets (e.g. jazz and hip-hop, akin to the “likelihood of confusion” principle).



Coverage of Study

Coverage of Fundamental Issues
Issue Included within Study
Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare
Green-tick.png
Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)?
Harmony of interest assumption between authors and publishers (creators and producers/investors)
Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption)
Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)
Coverage of Evidence Based Policies
Issue Included within Study
Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right)
Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction)
Green-tick.png
Mass digitisation/orphan works (non-use; extended collective licensing)
Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability)
Fair remuneration (levies; copyright contracts)
Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Datasets