| The melodies, rhythms, and themes used in the music likely existed before the creation of any song, maybe not in the same order as in a copyrighted recording, but the de minimus doctrine and current ownership rules are too restrictive. Right now, the person who has the historically accidental privilege of copyright over those musical elements is the arbitrary determiner of who gets sued or fined for iterating on their work. Perhaps there should be a higher bar than de minimis for copyright violations in interpolations or sampling. Artists should have the right to make a living off their work, but if someone wants to integrate significant elements of another work into theirs, they should be able to do so, provided they are not trying to profit from a direct copy (if they are, existing statutory licenses that require an artist to clear a cover may be prudent).
Alternatively, a widening of the creative commons system may achieve the same ends. Moreover, a far wider use of CC-BY-NC licensing by mainstream artists would simply give artists more dignity in processes that are happening anyway – outside the purview of copyright doctrine. Leakers, listeners, and remixers who view music as an art, or a "social process" would take advantage of the opportunity given by the expanded use of Creative Commons licenses, expanding the well of new and innovative musical ideas that may borrow from previous ones without fear of legal retribution. |