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Newton v. Diamond: Measuring the Legitimacy of Unauthorized Compositional Sampling – A Clue Illuminate and Obscured  

26 Hastings Comm. & Ent. L.J. 119 (2003).

Popularity by consumers and legal uncertainty creates an uncomfortable climate for digital sampling. Newton II has imposed a music industry custom of preventative payments or of artists simply taking the risk of getting caught sampling.

Newton I created a method where a “distilled compositional sequence could run along a series of guideposts to make a threshold determination as to eligibility for protection. This allowed a claim to be stopped at an early stage. However, Newton II and its analysis of de minimis use has blurred the path created by Newton I. However, de minimis use does allow samplers to somewhat test the legitimacy of their actions. Had Newton II adopted the Ringgold analysis, the test of legitimacy would have been much clearer. The Ringgold standard considers the aggregate duration of the defendant’s use, an issue many samplers would not want to face.

The author believes Newton I should have been affirmed on its primary decision that the sampled sequence was not sufficiently original to merit copyright protection.

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