U.C. Davis law professor Thomas W. Joo has written A Contrarian View of Copyright: Hip-Hop, Sampling, and Semiotic Democracy. The abstract:
A dominant trend in intellectual property (IP) theory asserts that technologies such as digital copying enable individuals to resist the cultural dominance of the media industry. Under this view, individuals appropriate cultural material and “recode” it by assigning alternative meanings to it. By enabling more people to participate in the making of cultural meanings, recoding supposedly enhances “semiotic democracy.” IP theorists tend to argue that copyright law inhibits recoding, thus stifling semiotic democracy. The use of sampling in hip-hop music is frequently cited as a paradigmatic example of recoding that has been stifled by IP law.
This paper uses history, economics, and critical theory to question these arguments on both the empirical and theoretical levels. Many scholars assert that copyright law turned against recoding in the 1990s by requiring samplers to pay for copyright permission. But the music business – including the hip-hop sector – was already in the practice of paying for copyright permission. Judicial decisions simply codified existing practice, which treated copyright permission as merely one of the many costs of making music. Thus copyright law did not impede musical recoding generally or hip-hop specifically.
While economic markets work well in allocating recoding rights, however, this does not necessarily advance semiotic democracy, because market failures afflict the marketplace of ideas. Recoding embodies contradictory forces that both advance and retard semiotic democracy. Law and technology facilitating recoding not only help independent record labels and artists question the cultural meanings advanced by major record companies; they also allow the latter to appropriate from the former. Moreover, recoding not only creates new meanings from existing cultural materials, but also repeats and reinforces those dominant cultural meanings. Indeed, by creating alternative meanings for dominant cultural materials such as popular music, recoding can contribute to their commercial appeal and cultural influence.