Vaidhayanathan, Said.  "Hep Cats and Copy Cats: American Music Challenges the Copyright Tradition."  Copyrights and Copywrongs:
        The Rise of Intellectual Property and How It Threatens Creativity.  New York: New York UP, 2003.  117-48. 

        Vaidhayanathan begins his chapter on the ethos of sampling in American music by claiming that "music, more than any other vehicle of culture, collapses the gap that separates idea from expression."  Walter Pater ventured the same observation in the late nineteenth century, speculating that all arts aspire to the condition of music.  This introduces great difficulty into the realm of copyright, which identifies protectable expression by consistently separating out idea from expression.  Taking the case of "second takers," samplers building on the creativity of particular artist or, in the case of the blues, a common musical catalog, Vaidhayanathan argues that these important engines of culture need more protection than the idea/expression distinction can provide.  In the case of American music, he goes so far as to claim that repetition and revision are "central tropes."  The Blues tradition, more specifically, views the elaboration or improvisation of traditional compositions as the norm, as against the Constitution's model of progress or Romantic models of genius.  If this is true, copyright law overprotects large swathes of American music. 

        The distinction Vaidhayanathan draws in this article between legal issues and aesthetic and ethical issues begs of the question of whether blues compositions ought to be eligible for protection.  Then again, he also seems to support the "total concept and feel" test for substantial similarity.  This would locate the aesthetic and ethical issues he cares about within the purview of the law as currently formulated, except that the test applies to the performance of a song, rather than to its composition, as is currently the case.  Performance, he argues, constitutes a substantial portion of the "value-added" aspect of a musical work.  The overarching question, as I see it, involves the degree to which discrete areas of culture like the blues tradition can push back against legal protections designed to apply to all areas of culture.  Established works reap the benefit of asymmetrical power, in the form of a large and powerful music industry lobby.  The power balance in and of itself doesn't decide the question.  Moreover, a tension between recourse to national tradition - the idea of "American music" - and recourse to ethnocentric explanation - in the histories of the blues and rap - might have been more clearly handled. 

        Vaidhayanathan delineates five reasons for sampling - to draw on the authority of a cultural touchstone, to produce a new version, to make a political statement, to express appreciation or acknowledge influence, and to create an ambient effect.  Works that sample arguably deserve a hearing on each of these grounds, as five possibilities for the nature of a fair use claim.  Sampling more often than not adds value to a work of art and thus transforms the sample.  Moore's poetry might profitably be considered in light of these five species of sampling, to see whether they would be adequate in pursuit of a fair use claim.