“Sampling” copyrighted works to create new expression has a rich history in creative culture, particularly in hip-hop music, a genre that values revision and recontextualization. However, courts are mixed on whether sampling should be considered fair use. Many courts have found that sampling harms the original artist’s ability to license copyrighted material, thereby diminishing the work’s marketability. But some courts recognize that sampling can enhance the market for the original work. The present study explores the tension between these opposing fair use models—what we call the “pure market substitute” and “market enhancement” models—currently percolating in lower courts. Through an analysis of cases involving hip-hop sampling and similar practices, we argue that the “market enhancement” model, which considers cultural and audience characteristics that impact marketability, better serves the goals of copyright law and should be more widely adopted. We further recommend that courts consider three factors when analyzing market impact in fair use sampling cases: provable effects of the sample on the market for the original work, the nature and duration of the original author’s market participation, and the similarity between markets for the original and secondary works.

How do local citizens publicly converse online about the protests that follow when police kill Black residents? And do participants reflect local publics? Here we examine racial justice protests in Baton Rouge after police killed Alton Sterling in 2016. Local news streamed the protests on Facebook Live. In comments appearing below the video, locals supported and attacked each other in real-time while watching protests unfold. We assess a representative sample of these comments. First, we find surprising demographic and political representativeness in comments compared to census data and a local survey. We also document extensive hostile rhetoric corresponding with commenter traits and expressed views. Finally, we find more “likes” for comments by women, college-educated people, and locals. Violent and racially derogatory comments by Blacks received fewer likes, but similar comments by whites went unpenalized. The results illuminate social media functions in local politics, racial disparities in contentious digital dialogues, and political communication’s dual roles in strengthening and undermining multiracial democracy.

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