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Music Copyrights: The Need for an Appropriate Fair Use Analysis in Digital Sampling Infringement Suits  

21 Fla. St. U. L. Rev. 135 (1993).

The music industry has finally began to see developments in the digital sampling controversy, however these adjustments are a result of the industry adapting, rather than changes instigated by law. Sampling clearinghouses have eased some worry of artists whose work is sampled, and record companies have instituted licensing policies. The sliding fee scale, if agreed upon, conform to modern standard royalty payments schemes. The music industry is heading toward a “pro forma” licensing of samples.

The author believes, however, that fair use should remain a defense to sampling because the copyright clause encourages creativity, and the samplers are simply exhibiting a new musical style. Because of this, the author believes additional factors should be used in determining whether the use of the sample was fair. New laws are needed to keep up with technology because many presumptions found in them are outdated, which will protect the rights of copyright owners while making it economically possible for samplers to create their kind of music.

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