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Does a Song By Any Other Name Still Sound As Sweet?: Digital Sampling and its Copyright Implications 

Kravis, Randy S., 43 Am. U. L. Rev. 231 (1993)

In modern music culture, digital sampling has emerged as a popular technique for exploring and reexamining older music. Because the sampling phenomenon is more far-reaching in its technological capabilities than any previous musical technology, sampling has transcended the scope of the existing law, forcing lawyers, musicians, and others in the music entertainment business to analyze this new musical technique in a legal vacuum, and leaving them only to speculate as to how the old law applies to sampling. As a result, much debate and controversy among those interested in the entertainment law field have produced a whole spectrum of opinions on digital sampling’s place in the law. In fact, even the judiciary appears confused and undecided on how the law should treat sampling, as evidenced by the Grand Upright Music decision.

The law, however, cannot ignore the new technology of digital sampling or dismiss it as a fad devoid of artistic value. Digital sampling is a form of art that the law must not forbid. At the same time, the law must regulate samplers to protect song owners from unauthorized copyright use. Congress needs to change the Copyright Act to accommodate sampling, just as it has done in the past to accommodate other new technologies. A compulsory licensing provision that guarantees compensation is an ideal solution for amending the Act in that it satisfies the interests of both the public and the artists and creates a framework that can accommodate future technologies still unforeseen.

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