ABSTRACT
Digital audio sampling poses several interesting challenges to existing intellectual property right laws, and by looking at the specific case of rap music, a form that is in many ways based on the opportunities presented by sampling technology, these confrontations are highlighted.2 This article questions both the philosophical bases and common law decisions surrounding intellectual property through a critique of their understanding of individual authorship and creativity. Ultimately, copyright law is property law, and its foundation in notions of creativity and originality therefore have to be seen within the complex of capitalist social relations. Even so, because much of the discourse surrounding the question of copyright concerns itself with the creative process and the circulation of cultural products, it becomes necessary to address the ways in which sampling technology is able to highlight some of the contradictions in the foundational principles of jurisprudence. Sampling, in general and here in the particular case of rap music, forces us to reconceptualize these bases of copyright doctrine for both technological and cultural reasons-the former because digital reproduction accentuates existing understandings of “copying” and poses its own challenge to the ways in which we have to think about the process of production, the latter because rap highlights how different cultural forms and traditions are founded on different understandings of creativity and originality. Finally, because under capitalism the cultural form is necessarily the commodity form, because “the real creative subject within copyright law…is capital” (Bettig, 1992:150), current intellectual property rights articulate the limits of the cultural raw materials available for musical production as well as defining the formal boundaries of acceptable end-products. Gaines (1991:9) points out that this limitation is “self-correcting” through the “double movement of circulation and restriction.” Copyright is enabling of certain forms of discourse while prohibiting others in the ideological balance of “free expression” and profitability. Therefore, copyright becomes an issue for discussions of so-called free expression. In order to enter the fray, it is necessary to look at existing definitions of copyright within legal discourse.
