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Digital Sampling and the Legal Implications of its Use After Bridgeport 

Webber, Amanda, 22 St. John’s J. Legal Comment. 373 (2007)

Copyright protection, as stated in the Constitution, was created to promote artistic creativity and innovation that will be beneficial to the public. Any private benefit that creators of musical works receive is incidental to the purpose of maximizing public benefit from the arts. The reason that copyright owners are given rights at all in their sound recordings is so that they are encouraged to create new works. It seems highly unlikely that an artists will decide not to create new music because a few seconds of their sound recording may be copied and altered into a new altered sound, and incorporated into a new work very different from the original.
While the creation of a fuller marketplace for licenses ideally may have a positive effect on new forms of music containing samples, such a marketplace does not currently exist. Currently, the ability of transformative, sample-based music to be released to the public resides in the hands of copyright holders, often not the creators of the work themselves. Without any kind of compulsory licensing scheme, these copyright holders are given enormous bargaining power, power that is often abused, resulting in certain creative works never reaching the public. Because any copyright legislation should take into account both the artists’ interest as well as that of the public, an effective result can be reached through the use of a multi-tiered licensing scheme that takes into account factors created under the fair use doctrine already in place. The current lack of compulsory licensing in the sampling context reduces the pool of sounds available to create new, original works, ultimately working against the purpose of the Copyright Act, and in turn, the Constitution.

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