This article will examine how blockchain technology can clarify the complex and inconsistent judicial approach to the copyright doctrine regarding music sampling. As it stands today, circuit courts are divided over how to handle copyright infringement stemming from unlicensed music sampling. The first approach is simple: if you want to sample, get a license. The second approach is more lenient and applies a de minimis standard that forces courts to make fact sensitive, case–by–case decisions regarding whether or not the sample of the original work is sufficient enough to be defined as an infringement. The reason for this split in rationale stems from the difficulty of reconciling the two opposing virtues of music copyright laws: protecting an artist’s copyrighted works from infringement and nurturing an artist’s ability to create.
Blockchain technology can help bridge the gap between the two conflicting goals of music copyright law. A blockchain has the capability to store music files embedded with “smart contracts” that will automatically detect when a musical work is being used and what it is being used for. It can then facilitate a transaction based on what it detects. This function will make the act of licensing sound recordings simpler and more efficient which will in turn decrease transaction costs. If licensing sound recordings become more economical for the unsigned or emerging artist, it will both incentivize collaboration while protecting the original artist’s work from being appropriated without proper compensation. Therefore, the strict approach of “if you want to sample, get a license” will not have as strong of a deterrent effect on artist collaboration and creativity. This will arguably open the door for courts to unanimously shift towards adopting the bright line approach, which will create clarity and certainty in a traditionally muddy doctrine without compromising an artist’s creativity
The Sample Solution: How Blockchain Technology Can Clarify a Divided Copyright Doctrine on Music Sampling,
27 U. Miami Bus. L. Rev.
Available at: https://repository.law.miami.edu/umblr/vol27/iss1/9