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Confusion in the Digital Age: Why the De Minimis Use Test Should Be Applied to Digital Samples of Copyrighted Sound Recordings 

Suppappola, Mike, 14 Tex. Intell. Prop. L.J. 93 (2006)

There is no easy solution to the digital sampling problem. If the Newton and Bridgeport II decisions have proven anything, it is that traditional copyright doctrine is ill equipped to deal with new technologies that present new copyright problems unique to the digital age. If the purpose of copyright law is “[t]o promote the Progress of Science and useful Arts,” it is imperative that all artists be given the opportunity to access existing works for the purposes of facilitating new creations.

Courts have been unwilling to expand the doctrine of fair use to include non-critical transformative works, and a compulsory licensing system for digital samples is far from inevitable. Thus, de minimis use analysis remains the best (and perhaps only) hope for digital samplers to escape liability for copyright infringement. Unfortunately, the subjective, ad hoc nature of de minimis use analysis has resulted in unpredictability and confusion for digital samplers and copyright holders alike.

Although there may not be any definitive answer to the problems facing the practice of digital sampling, the Newton case provides the best guidance with respect to how future courts should analyze a digital sampling dispute. In cases where a sampler has obtained a license to use a sound recording but fails to obtain a mechanical license for use of the underlying composition, courts should use the “fragmented literal similarity” de minimis use analysis as set forth in Newton. In cases where a sampler either: (1) obtains the musical composition license but fails to obtain the sound recording license, or (2) fails to obtain both licenses, the court should use the Newton analysis, but institute a presumption against a finding of de minimis use, thereby shifting the burden of proof to the defendant.

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