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Theft, Transformation, and the Need of the Immaterial: A Proposal for a Fair Use Digital Sampling Regime 

Ashtar, Reuven, 19 Alb. L.J. Sci. & Tech. 261 (2009)

Digital sampling, the process of manipulating pre-existing sound recordings and incorporating them in one’s music, is being smothered by opportunistic rights holders who are seldom the authors of the protected works. A particularly vicious predator is the “sample troll” – one who strategically stockpiles music rights and shakes musicians and labels down for suspected sampling “no matter how minimal and unnoticeable.” In order to sample a song, one needs rights to both “master use” (recording) and “synchronization” (composition) licenses. Rights in a sound recording only permit reproduction, the preparation of derivative works, the distribution of copies, and the public performance of the work “by means of a digital audio transmission.” The licensing rates vary from flat fees (used when a song is not well known and only a small portion of it is intended for use; $1,000-$5,000) to rollover fees (initial advance against royalties is complemented by payments at fixed sales levels). To pursue a claim of infringement, the plaintiffs must prove that the sampled work is itself copyrightable and that their ownership is valid. Next, actual copying must be proven with evidence that the alleged infringer had access to the original work and that the new work bears a “probative similarity” to the copyrighted work. After these conditions are satisfied, the plaintiff must show substantial similarity (whether the sampled material is of value and pleasing to the ear).

The current legislative regime for sample use is archaic and needlessly complex. Attaining licenses is an expensive and demanding process and commercial musical production utilizes it sparingly. Courts inconsistently circumscribe the ambit of recording and composition rights and apply copyright statute in a manner both overly rigid and excessively friendly to rights holders. Independent and lesser-known artists lack the resources to attain licenses for the material they wish to incorporate; and while record companies have entire subdivisions dedicated to sample clearance, their artists’ sampling output is limited because the licensing of numerous sources is not commercially viable.

As a result, creativity is sacrificed and copyright’s goal of fostering innovative and original work for the public benefit is frustrated. Copyright law is not served by punishing creative borrowers, but courts have facilitated precisely that by distorting de minimis doctrine and restricting the fair use defense. Transformative fair use accords with samplers’ inclination to modify fragments of existing work and recontextualize them for their listeners’ benefit. Extending sampling rights beyond the parodic context accords with the Court’s pronouncement that the “germ of parody lies in the definition of the Greek parodeia…’a song sung along side another,’” The cacophony should be amplified, not stifled.

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