Rappers Sorrow, or How Copyright’s Restriction on Digital Sampling Inhibits African-American Participation in Societal Discourse

Darrin Keith Henning

Abstract

The judicial application of copyright law to digital sampling has led to ever increasing prohibitions on use of music samples, leading to a near prohibition of unlicensed sampling. Current literature tends to analyze how sampling fits into the legal framework, but not how that legal framework affects society. There currently exists a market failure in the music industry in the form of prohibitively costly licensing fees for music samples. Following the development of jurisprudence of digital sampling, I conclude that an erosion of the de minimus use defense by the courts have had a disparate racial impact, thereby eroding rap’s original purpose as a medium for critical social discourse.