Is Music Sampling Hijacking Nostalgia? TED talks and Copyright Fair Use

Sampling isn't about "hijacking nostalgia wholesale," says Mark Ronson. It's about inserting yourself into the narrative of a song while also pushing that story forward. Watch the DJ scramble 15 TED Talks into an audio-visual omelette, and trace the evolution of "La Di Da Di."

Mark Ronson's TED Talk never discusses how licensing or the defense of fair use interplay with sampling of tracks.   Ronson doesn't discuss any copyright infringement lawsuits related to sampling.  If there are unlicensed samples in a song or track, often the best defense is fair use.  And, fair use is not black and white and is often a difficult defense.

A judge or jury looks at the following four factors in determining a fair use defense to copyright infringement: 

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

Ronson's TED Talk is the best example of what would make a successful fair use defense to copyright infringement.  Ronson's mash up/montage/derivative work created from the existing TED Talks clearly transforms the existing videos in such a way the new work comments on the original videos.  Ronson only used a minimal portion of each existing video to convey his purpose and what he used was nominal and would not impact the market negatively for the original TED Talks.  In fact, it may have inspired me to seek out those original TED Talks.

While a fair use defense may or may not be successful in a sampling copyright infringement lawsuit, there's no doubt Ronson's TED Talk successfully transformed and hijacked (in a good way) the nostalgia of the 15 sampled TED Talks

Check out www.whosampled.com for confirmed and alleged samples.

TED Talks are licensed under the Creative Commons license "Attribution - NonCommercial - NonDerivative"

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