If, while listening to Robin Thicke’s, “Blurred Lines,” featuring T.I. and Pharell Williams, you couldn’t help but wonder — isn’t that a song already? The answer would be yes … or at least parts of it are, according to a federal judge.

Earlier this month, a federal judge ruled that “Blurred Lines” violated the copyrights of Marvin Gaye’s 1977 song “Got to Give it Up.” The case awarded almost $7.4 million to Gaye’s family, and set a precedent that a song’s feel — not just its lyrics, composition or recording — is protected by copyright.

The decision complicates an already convoluted mess of copyright rules and precedents that increasingly fail to respond to the needs of digital music production. Sampling lyrics and progressions — never mind “feels” — from other artists’ work is commonplace and benefits consumers by yielding new creative works sporting the sound and style of familiar tunes.

Sampled work is popular. Kayne West’s No. 1 album, Yeezus, features at least nine tracks that sample, and it debuted as the best-selling album on the Billboard 200 chart. But even as West has seemingly profited from the ability to build off of other artists’ works, fledgling artists often lack the means to do so legally.

Artists wishing to sample from a copyrighted work have limited options. They can seek permission to use a portion of the work, often agreeing to pay steep fees in exchange for the right to sample seconds of content. They could also use the sample without permission, risking a costly lawsuit if the copyright holder decides to challenge the use in court and expensive fines if their use of the work isn’t deemed fair use by the court. Fair use is a set of squishy factors — including the reason for and size of the sample, the creative content of the sample and the effect that sampling might have on the market — under which using a copyrighted work is permissible. Even the courts have had trouble deciphering the fair use clause, prompting the Supreme Court to resolve the contradictory precedent set forth in the various rounds of expensive and drawn-out lawsuits.

The Copyright Act of 1976 needs revision. Instead of requiring artists to play lawsuit roulette with their creative work, the law should be amended to include clear, specific definitions for permissible music sampling in its definition of fair use. The knowledge that using a sample of a specific type or length — for example, chord progressions lasting less than ten seconds — could promote the creation of new, legally compliant works by eliminating the current law’s ambiguity.

And just how necessary is a revision of fair use? Revisit the title of this column, where I have used lyrics from Secondhand Serenade’s track “Vulnerable.” Under current guidelines, whether or not this column breaks copyright law is ambiguous, and definitively unknowable unless challenged and ruled on in court.

Future copyright policy should focus on addressing two massive shortfalls of the Copyright Act: the unfairness of the law and the chilling effect the law has on musical creativity.

The new law should clearly define fair use in a way that adequately reflects the constitutional purpose of copyright law: to promote progress. The current law abjectly fails in this task. In effort to amply protect artists who have already profited from their work, the act fails to allow sufficient creative space for new artists, especially those wishing to take advantage of digital mixing technology and those coming from the hip-hop genre.

A clear and expanded definition of what constitutes an acceptable sample would further the mission of the Copyright Act by allowing for the progression and growth of the music industry. While incomes of individual music labels and artists may arguably decline due to the increased right to sample, it’s far from clear that the music industry itself will suffer, as new artists are incentivized to create sans the stifling fear of litigation.

Furthermore, allowing sampling will reduce the inequality created by the current law. The current legal process surrounding copyright features a wildly expensive discovery processes and all but requires expert legal counsel. Simplifying the law may allow artists to better understand their rights, even if they can’t afford an attorney.

Industry giants can afford to pay licensing fees or engage in the fair-use litigation game. But, ostensibly, less-established artists are extremely disadvantaged by a system that requires them to risk participation in lawsuits or pay fines they cannot afford. When artists can’t afford to play by the Copyright Act’s unfair rules, many quit the game altogether — choosing instead to flout the rules or stop producing. The effect is dichotomous: a massive silencing of nascent creativity and huge advantages for established artists. As the blog Priceonomics puts it, “a law that makes it impossible to play by the rules is not a good one.” Amending the fair use clause of the Copyright Act to definitively allow reasonable sampling will reduce the likelihood that new artists will find themselves choosing between two options that they cannot afford.

Music labels may counter with the argument that the effect of a less arduous policy will be hugely detrimental to an industry that has recently seen a substantial decline in revenue. But even with decreased profit margins, the music industry sustains extremely competitive supply, as up-and-coming artists vie for benefits like fame, arena tour sell-outs and advertising contracts. Enormously high profits and power experienced by former captains of industry — or their heirs — are not necessary for future industry growth. A more relaxed copyright policy may actually help the industry by providing legal avenues for newcomers to sample in the same ways that established artists do. Because artists will still be sufficiently incentivized to produce, and more artists may be producing, the industry will likely benefit from this policy.

Regardless of opposing pressure from music industry behemoths, it’s essential that Congress amend the Copyright Act to include a precise, but permissive provision defining what constitutes a sample. Promoting creativity and fair competition is far more important than protecting the profits of the industry’s wealthiest.

Victoria Noble can be reached at vjnoble@umich.edu.

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