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Thou Shalt Not Steal: Grand Upright Music Ltd. V. Warner Bros. Records, Inc. and the Future of Digital Sound Sampling in Popular Music 

Falstrom, Carl A., 45 Hastings L.J. 359 (1994)

Digital sampling suffers from a lack of legal standards making it difficult to decide its legitimacy in various situations. Grand Uprights Music Ltd. v. Warner was the first case to truly address the issue of sampling, and one that the entire music industry watched with interest, hoping for judicial guidelines on this controversial issue. Unfortunately, the case, which featured little discussion of applicable standards and offered little advance to future litigants, instead created a bright-line rule where it was not needed. The Grand Upright Music court’s assertion that sampling is a form of theft reflects a widely held belief. Most, if not all, opponents of the practice decry it on the ground that sampling constitutes an unlawful appropriation of something – be that something the sound itself or the exclusive right to use it.

Given an opportunity to provide judicial guidance, the court in Grand Upright Music failed to do so. The judge failed to ask questions specific to the sample, such as length of time and how recognizable it was, instead began by presuming it was an infringement. Thus, digital sound sampling continues to cause controversy. Samplers and sampled artists alike operate in legal limbo, neither sure where they stand. In this way, copyright law acts counter to its reason for existence: to protect the creation of art for the benefit of artists and society both.

The court misapprehended the issues, but in doing so, it focused attention on them. Congress can now step in and create guidelines to accommodate the needs and wishes of samplers and the sampled. The future for samplers and “samplees” alike can be bright, a nascent genre can survive, and music lovers can be better for it.

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