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Music Composition, Sound Recordings and Digital Sampling in the 21st Century: A Legislative and Legal Framework to Balance Competing Interests  

Beck, Jeremy, 13 UCLA Ent. L. Rev. 1 (2005)

Much has been written about sampling, in both journals and the popular press. An unfortunately large selection of this writing demonstrates little, if any, perspective or knowledge of the larger history and methodology of musical composition as it has existed in Western practice for over a thousand years. Sampling is merely a recent technological development that continues underlying concepts found in that practice. Sampling is the traditional technique of manipulating a recorded fragment of sound from a preexisting recording and then using that fragment as a part of a new composition, realized as another recording. While the technological methodology that enables digital sampling is new, the underlying compositional concepts of borrowing, quotation, commentary, and collage are not.

As this brief overview of Western music composition demonstrates, the underlying concepts and aesthetics of sampling have long been a part of this art form’s history. While recent technological development of sampling clearly raises issues in relation to copyright law, it should not been seen as some Hydra that will bring about the ruin of music and the livelihood of musicians. Gradually extending copyright protection in both length and scope is contrary to the growth of a healthy creative environment and culture. It is also contrary to constitutional principles that support the higher purpose of furthering the public good, rather than mere profit-making and near-perpetual control of art by “owners.” What has been lost in the debate over sampling is this simple point: the incentive of copyright protection is not the goal. When such a metamorphosis takes place, furthered by ill-considered bright-ling rules, then we may truly fear the ruin of Music.

A balance needs to be struck between copyright holders and creators of new work, and Congress and the courts musts strive for equity in seeking this balance. In doing so, a variety of options should be woven into the fabric of the law. Courts should maintain the possibility of a de minimis analysis and support the doctrine of fair use if it is applicable to the circumstances of a given case. Additionally, Congress should redesign the compulsory license system to accommodate more significant uses of preexisting recordings. Such a legal and legislative framework will better address copyright issues within the complex nexus of music composition, sound recordings and digital sampling in the 21st century.

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