DJs illegally powered their equipment using public street lights, scratching sampled music for MCs while kids breakdanced in the streets and graffiti artists tagged them when the party was over – these were the early scenes of the hip-hop movement and the sources of hip-hop’s creativity and innovation, Andre Smith, Associate Professor of Law at Widener Law, said during a lecture at the law school on April 5.

In his presentation titled “If Hip-Hop is Dead Did the Law Kill It? How Overzealous Enforcement of Copyright and Property Laws Promote Sex and Violence in Hip-Hop Music,” Smith theorized that hip-hop’s creativity and innovation stemmed primarily from the use of other people’s property.  Artists like Grandmaster Flash and DJ Jazzy Jeff sampled, scratched and looped others’ works to compose new ones, thus exponentially increasing the spectrum of hip-hop music and giving birth to a powerful genre, Smith said.  However, as hip-hop’s popularity grew, so did the restrictions on sampling other work, Smith added.

Overzealous copyright enforcement began to stifle the genre in the late 80s and early 90s, Smith said.  Cases like Grand Upright Music, Ltd v. Warner Bros. Records Inc., a federal case preventing rap artist Biz Markie from sampling “Alone Again (Naturally)” by Gilbert O’Sullivan, resulted in increased prohibitions on sampling, scratching and mixing, Smith said. 
Without sampling artists were stripped of their creativity and control went to the record labels, Smith observed.  For the labels, however, the costs associated with production, which now required complicated licensing schemes, became prohibitive, Smith said.  Thus, to avoid the high production costs associated with licensing, labels resorted to the “least riskiest form of entertainment,” - sex and violence, Smith said.

“It is not that sex and violence didn’t exist before copyright enforcement, it is just that now the spectrum is narrower, the breath of the music has declined.”  Creativity and innovation has diminished as well, Smith said.

Smith suggested that creativity and innovation could be restored through compulsory licensing or expansion of the fair use doctrine, which permits limited use of copyrighted material without acquiring permission from the rights holders.  However, change will not come until the initial purpose of copyright law, the promotion, and not the prohibition, of useful and creative arts, is recognized once again, Smith concluded.

Smith’s lecture was part of a course and lecture series on hip-hop and the American constitution launched by Professor Donald Tibbs.