As a guest Jurisprudence columnist for Slate, Anthony Falzone, executive director of the Fair Use Project and lecturer in law, questions why Sean "Diddy" Combs and other artists have not used fair use doctrine in defense of music sampling:
Sean "Diddy" Combs is one of the most successful (and richest) men in the music business. He has many to thank for this success. When he launched Bad Boy Records, the Notorious B.I.G. was one of the first artists on the label, and it was B.I.G.'s 1994 debut album, Ready To Die, that brought Combs his first platinum hit. The album was lauded for B.I.G.'s vocals—and for its underlying layers of sound, many of them built on "samples," or short snippets, from previously recorded songs.
By the time B.I.G. recorded Ready To Die, sampling had come to define hip-hop. The music of artists like Public Enemy and Beastie Boys was built upon the inspired combination of samples, some recognizable, many not, to create brand new sounds. Sampling originated among the DJs of New York City, who began looping and extending drum breaks while adding rap vocals, scratching, and other improvisations—all, of course, without permission from anyone. With Combs as his producer, B.I.G. followed in this tradition and wove sample upon sample into the tracks he recorded.
But if sampling has been a critical component of hip-hop music for three decades, its legality remains surprisingly unclear—and artists and producers like Combs share the blame for that. Their failure to defend sampling when it has been challenged in court has contributed significantly to the legal uncertainty that surrounds the technique, and now extends to the title track from Ready To Die...