Damages Aren’t So Damaging: Property and Remedies Justifications for Denying Injunctions in Song Sampling Infringement Cases

[efn_reset][/efn_reset]Today, many popular songs rely on “sampling” other artists’ songs. Beyoncé’s “Crazy in Love” samples a 1970 song;¹ Drake’s newest album, Certified Lover Boy, samples the Beatles’ “Michelle” on the track “Champagne Poetry”;² Eminem’s smash hit “My Name Is” samples a funk artist;³ Britney Spears’ “Toxic” samples a song from a Bollywood movie. ⁴ It took this Author just a few minutes to find all of these and more. These are just some examples of famous, well-loved songs that were only made possible by sampling other artists’ existing songs.

Sampling is the practice of “taking pre-existing sound recordings and using portions of those recordings as new elements in a new musical composition.” ⁵ It does not mean taking another song wholesale and retailing it. Instead, samples typically use a small bit of someone else’s work and spin it into an entirely new song. It became very popular in hip-hop circles and helped launch the careers of countless rap stars.

A standard remedy for artists whose music has been infringed via sampling is a judge-issued injunction.⁶ However, this Author questions the wisdom of that approach by examining the property justifications and remedies justifications for enjoining good-faith, albeit unauthorized, music sampling. Instead of injunctions, music infringement should be housed mostly—if not exclusively—in legal damages. 

Sampling is the practice of “taking pre-existing sound recordings and using portions of those recordings as new elements in a new musical composition.” ⁷ It does not mean taking another song wholesale and retailing it. Instead, samples typically use a small bit of someone else’s work and spin it into an entirely new song. It became very popular in hip-hop circles and helped launch the careers of countless rap stars.   

A standard remedy for artists whose music has been infringed via sampling is a judge-issued injunction.⁸ However, this Author questions the wisdom of that approach by examining the property justifications and remedies justifications for enjoining good-faith, albeit unauthorized, music sampling. Instead of injunctions, music infringement should be housed mostly—if not exclusively—in legal damages.