Saturday, December 14, 2019

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5. Utility Maximization and Distributional Consequences

This inherent tension in the copyright regime's treatment of sampling artists is surely not Gillis's fault. As the maxim goes, Don't hate the player, hate the game, and Gillis is but one actor in a long history of the interaction of race, culture, and copyright. Copyright has always been tested by the introduction of new technologies in musical performance and practice. Furthermore, those actors bringing suit to enforce assertions of copyright violations (i.e., rent seeking) are merely playing by the established rules of the system and acting within their own self-interest--few would likely claim that Grand Upright or Bridgeport Music themselves are biased entities.

That said, the current trends in copyright enforcement are troubling. Viewed in isolation, perhaps DJ Drama's prosecution, the suit against Markie, or Gillis's newfound fame is not worrisome, but they are merely examples of the winners and losers in a competitive environment. Yet such a perspective takes an exceedingly narrow view of history, and fails to give adequate consideration to the possibility that the legal environment is biased towards sampling artists of color. Such evidence includes the American copyright system's mistreatment of African-American artists, the record industry's consolidation of creative capital, and general societal mistrust of many black art forms. The truth is that while copyright purports to be neutral, it is in fact a culturally, politically, economically, and socially constructed category rather than a real or natural one.

The copyright system may not be guided by an invisible hand directing who litigates and who pays the cost for sampling. Still, it is hard to ignore the distributional impacts of the intellectual property regime. At the very least, courts should be aware of the disparate legal treatment of artists utilizing digital sampling. Going further, a solution is needed to smoke out how and why cultural production receives either sanction or praise depending on the race of the artist.

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