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The Emperor Has No Clothes: How Digital Sampling Infringement Cases Are Exposing Weaknesses in Traditional Copyright Law and the Need for Statutory Reform 

Ponte, Lucille M., 43 Am. Bus. L.J. 515 (2006)

Digital sampling is a widespread musical practice that postdates existing copyright law. The recent Newton and Bridgeport Music decisions exemplify how courts have struggled to apply traditional copyright principles to this new practice. Judicial confusion has led to uncertainty in the music industry about the legality of digital sampling. Proposals to institute compulsory licensing or to revise fair use would likely benefit the public access to musical works, but fail to take into account the economic and moral rights of creative musical artists.
To better balance the needs of the public with the concerns of musical artists, a new provision under copyright law should be adopted to clarify the issue of digital sampling. The new provision should require licensing of digital samples from both owners of copyrights for the musical composition as well as the sound recording. This will provide a bright-line rule for courts and the recording industry to follow. Sampling without such a license would be considered a per se infringement.
Existing market-driven licensing schemes in the music industry should be allowed to operate in assessing and collecting appropriate licensing fees. However, the new provision should recognize traditional fair use while expanding fair use principles to allow nonprofit and educational institutions to access limited portions of musical works for noncommercial purposes. Adopting a new digital sampling copyright provision with the above characteristics would provide clear guidance to the courts, the music industry, and the general public, as well as strike the appropriate balance between artistic rights and public access to creative works.

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