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From J.C. Bach to Hip Hop: Musical Borrowing, Copyright and Cultural Context  

Arewa, Olufunmilayo B.

Musical borrowing is a pervasive aspect of musical creation in all genres and periods. Copyright doctrine does not adequately reflect the reality of such borrowing. Instead, copyright doctrine incorporates notions of Romantic authorship that assume independent and autonomous authorship and even genius in the creation of original musical works. This individualistic and autonomous vision of musical authorship, which is central to copyright law, has deemphasized the importance and continuity of musical borrowing practices generally. The tension between conceptions of musical production and actual music practice is particularly highlighted in the case of hip hop music, which is now the second most popular type of music in the United States and an important musical and cultural force globally.

The advent of hip hop has raised serious copyright law concern as a result of sampling, which is a form of musical borrowing that involves the use of pieces of pre-existing recorded music within hip hop works. Courts have held sampling to constitute copyright infringement. The pervasive nature of borrowing in music suggests that more careful consideration needs to be given to the extend to which copying and borrowing have been, and can be, a source of innovation within music. Existing copyright frameworks need to recognize and incorporate musical borrowing by developing commercial practices and liability rule-based legal structures for music that uses existing works in its creation.

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