Abstract
Music sampling has been a staple in the hip-hop and electronic genres for decades, yet artists continue to struggle with legal and economic barriers to sampling others’ works without facing copyright infringement liability. Because copyright law recognizes two distinct types of copyrightable works for music—musical compositions and sound recordings—artists must clear both copyrights to have a legal sample. The existing sample licensing regime is prohibitively expensive, time-consuming, and convoluted, often creating a “holdout” problem where just one party can prevent the release of new, creative music. This has led to “cultural erasure” in the digital streaming era, where seminal works from the “golden age” of hip-hop sampling, such as those by De La Soul and Biz Markie, remain unavailable to the public due to unresolved contractual disputes and high relicensing costs.
While previous scholarship has advocated for a universal compulsory licensing scheme, thus allowing artists to sample copyrighted works without prior consent at a set royalty rate, this approach risks prioritizing efficiency over equity. Such proposals may merely reverse the power dynamics by reducing the sampled artists’ control over how their work is used, disregarding their moral, artistic, or personal considerations.
This Comment proposes a balanced, two-step legislative reform to the Copyright Act. First, Congress should implement a statutory limit or “ceiling” on sample licensing fees and publishing shares, with the Copyright Royalty Board setting rates based on tiers for the type, length, and use of a sample to ensure pricing remains reasonable and accessible. Second, a restricted compulsory licensing scheme would act as a final recourse only when rightsholders cannot be reasonably located or when a license is rejected in bad faith without reasonable grounds, like obscenity or reputational harm. This hybrid approach would utilize a flat fee scheme for independent artists and a proportional system for major label artists, promoting a more equitable and efficient system that balances artistic freedom with economic fairness.
Recommended Citation
Muntasir Ali,
A Compulsory License Is Not Enough: How Implementing a Statutory Limit Can Reduce Costs and Increase Creativity in Music,
75
Emory L. J.
1539
(2026).
Available at:
https://scholarlycommons.law.emory.edu/elj/vol75/iss6/4