A dominant argument in intellectual property scholarship asserts that technologies such as digital copying empower individuals to participate in the making of culture. Such participation involves individuals appropriating cultural material, “remixing” it with other elements, and “recoding” it by assigning it alternative meanings. By enabling more people to participate in culture, remixing and recoding supposedly enhance “semiotic democracy” and mitigate the dominance of the media industry. The same theorists who make this argument also tend to assert that copyright law is in need of significant reform because it inhibits recoding and thus stifles semiotic democracy.
This Article challenges the empirical assertion that law inhibits recoding—but it also questions the normative assumption that recoding is presumptively good for semiotic democracy. This Article focuses on a specific type of recoding: musical sampling (that is, the recoding of music through digital copying and other means). Sampling, particularly in hip-hop music, is frequently cited as a paradigmatic example of recoding that has been inhibited by intellectual property law. The legal history of sampling, however, suggests otherwise. Commentators have misread important judicial opinions about sampling and misunderstood the business practices of the music industry. At least in the sampling context, law has not prevented the reallocation of recoding rights by contract.
While markets have been able to reallocate sampling rights, however, such transactions do not necessarily advance semiotic democracy, because market failures afflict the marketplace of ideas. In the cultural context, as in the political and economic contexts, formally equal opportunity to participate does not result in equality of influence, and can in fact exacerbate power imbalances. For example, legal and technological innovations (such as digital copying and the Internet) can enable cultural underdogs to recode the messages of media conglomerates and other dominant cultural institutions. But those same innovations also allow dominant institutions to appropriate from the underdog—and dominant institutions can then use their influence to “drown out” those independent voices with recoded meanings. Moreover, recoding by its nature involves the incorporation and repetition of dominant cultural messages. Such repetition can propagate and reinforce dominant messages, resulting in the cooptation of recoding, regardless of the recoder’s intent. In short, recoding is not clearly conducive to semiotic democracy. Rather, it is full of internal contradictions that make its relationship to semiotic democracy an ambivalent one.