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Digital Music Sampling and Copyright Policy – A Bittersweet Symphony? Assessing the Continued Legality of Music Sampling in the United Kingdom, The Netherlands, and the United States  

Hahn, Melissa, 34 Ga. Int’l & Comp. L. 713 (2006)

When the Bridgeport decision first came out in September 2004, members of the press from around the world reported that the decision would spell the end of the use of unauthorized sampling. More recently, in June of 2005, the Sixth Circuit Court of Appeals issued another ruling, clarifying the reasoning of its initial opinion. While it is too early to tell what the long term implications of the Bridgeport decision will be, what is more certain is that the continued legality of sampling is at a critical juncture

Although sampling, at least with regards to relatively small portions of copyrighted works, remains legal in the United Kingdom and in the Netherlands, and, arguably, in some jurisdictions in the United States, the current legality of the practice is marked with a great degree of uncertainty. This unsettled situation is aggravated by the fact that there have been relatively few sampling cases litigated around the world. Moreover, in the United States, where most sampling cases have been litigated, the appellate courts have reached differing outcomes. This lack of certainty is a disadvantage to all actors involved in the practice of sampling. It discourages innovation as both would-be samplers and copyright holders are currently unsure of the protection that their respective rights will be accorded in court systems around the world.

Operating from the assumption that some sampling should be encouraged and valued as an innovative art form, this uncertainty can be best remedied if courts around the world adopt the analysis articulated by the Newton court. In short, a narrow exception to the copyright protection scheme needs to be maintained and enforced so that a limited level of unlicensed sampling can continue. In doing so, the creative interests of both would-be samplers and current copyright holders can be advanced, while society’s broader interest in creativity and innovation would also be promoted.

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