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Audio Pastiche: Digital Sampling, Intermediate Copying, Fair Use 

Szymanski, Robert M., 3 UCLA Ent. L. Rev. 271 (1996)

The traditional notions of copyright law provide substantial protection against the misappropriation of recognizable samples. While the fair use defense has some appeal, it is unlikely that it will be upheld by courts outside the context of parody. The likely impact of the Grand Upright and Jarvis decisions will be even more meticulous pre-release licensing, rather than a surge in litigation. Although many commentators have proposed compulsory license schemes to standardized the bargaining process, such proposals fail to adequately take into account the complexity of the sampling problem as well as current industry practice. The legal status of digitally manipulated samples remains unclear, and it raises important policy concerns. The fair use defense is unlikely to be upheld outside of parody and copyright law is not well equipped to deal with the novel issues digital technology addresses. While digital technology may create many new and transformative works, however if those works can be manipulated freely then creative incentives may be undermined, reducing production. If intermediate copying is always viewed as infringement, then the unlimited possibilities of digital technology will be forever diminished.

Case law consistently recognizes that copyright rewards authors not as an end in itself, but rather as a means to stimulate creativity for the public good. In most cases, extending copyright protection to a new technological use of a copyrighted work advances the objective of increasing the number of creative works. However, as the Supreme Court recognized in Acuff-Rose, at a certain point expanding copyright protection can actually inhibit the production of new works by preventing others from using existing works as a part of their own original expression. To maximize creative production, copyright protection should be established at a level where the “number of works gained from heightened incentives is precisely offset by the number lost when individuals, fearing infringement, are unwilling to produce works drawing upon those already existing.”

Digital technology introduces paradoxical issues that copyright law seems ill equipped to address. On the one hand, digital technology may greatly enrich the creative process by generating countless new, transformative works. On the other hand, if the original works can be freely manipulated, the technology may actually diminish the production of new works by undermining creative incentives. As the Second Circuit noted in Computer Associates, Inc. v. Altai, Inc., applying copyright law to computer code may be like squeezing a round peg into a square hold. The imperfect fit can be harmful to the creative incentives that copyright law seeks to foster. While protecting these incentives may require viewing intermediate copying as infringement in some cases, if intermediate copying is always viewed as infringement, digital technology’s limitless potential will never be realized. Therefore, it will often be desirable to permit such copying in cases where the ultimate work is sufficiently different so as not to infringe the original work’s copyright.

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