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Recognizing the Grey: Toward a New View of the Law Governing Digital Music Sampling Informed by the First Amendment 

Durbin, William Y., 15 Wm. & Mary Bill Rts. J. 1021

Copyrights are not “ultimately intended to reward the creator, but to encourage public benefits…[The] reward is seen as the most effective means to secure this public benefit.” The aim of copyright is not to limit useable expression or to fence off particular parts of our common vocabulary and culture, but rather to “forge a balance between allowing the public to benefit and use the artistic expression, and protecting the rights of the creator sufficiently to encourage the creation.”

A brief history of the case law is warranted. In Grand Upright, the court held that any and all sampling of music constitutes automatic copyright infringement. The court in Jarvis found that once copying has been established, the substantial similarity analysis should center on whether the defendant appropriated, either quantitatively or qualitatively, constituent elements of the work that are original. In short, if a sampler uses a portion of the plaintiff’s work that is both quantitatively insignificant to the plaintiff’s work as a whole, the infringement may not be actionable. The decision of Williams v. Broadus increased the possibility that the recurring use of a small sample could avoid copyright infringement, especially if the sample is qualitatively unimportant to the original composition. Newton introduced the de minimis concept into the sampling analysis by holding that a three-note sequence, which was sampled, was not sufficiently copyrightable and even if it was, the sampling was not actionable. Finally, the court in Bridgeport attempted to set a bright-line rule of “get a license or do not sample.” This has effectively removed the substantial similarity prong from the copyright infringement analysis with regards to digital sampling.

The Framers and Congress did not create and amend copyright law with digital music sampling in mind. The law that has come to govern sampling is broken, failing to achieve its constitutional goals by giving too much control to copyright holders. The law may be mended in several ways so as to comport with the Constitution, including the creation of a compulsory system, which has a good deal of support, as well as a First Amendment based system, which, though novel, may even be constitutionally mandated. Although compensation to copyright holders may not be maximized directly, it may still provide the appropriate creative incentives while allowing the “science” of art to progress in other important and significant ways.

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