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All Mixed Up: Bridgeport Music v. Dimension Films and De Minimis Digital Sampling 

Mueller, Jennifer R., 81 Ind. L.J. 435 (2006)

Sampling, like the player pianos and cameras of over one hundred years ago, will not go away. Technology is developing at an exponential rate. If the copyright law gets bogged down in minutiae, it is ultimately the public that loses. Attempting to eliminate the de minimis doctrine from copyright seems absurd; although the Bridgeport court purported to limit its decision solely to the situation of digital sampling of a sound recording, there is nothing to stop another court from extending the ruling further. The potential effects of such a decision are staggering. When faced with change, a reactionary judicial response only becomes the amusing anomaly for future generations. More importantly, the Bridgeport court’s attempt to clarify an already-confusing area of law is no clarification at all, and only seems to mix it up more. The court’s bright-line test misinterprets statutory law and congressional intent, and flies in the face of over one hundred years of copyright jurisprudence.

The Newton decision, while following precedent and traditional statutory interpretation, cannot be relied upon by sample-based recording artists. The ad hoc nature of the substantial similarity analysis makes the outcome of such cases difficult to predict. Furthermore, even if the artist’s use is found to be non-infringing, the legal costs involved make a “wait-and-see” approach less than desirable. Thus, the practical effect of the Newton approach may be no less harsh than Bridgeport’s bright-line rule.

Somewhere between Newton and Bridgeport there is a healthy compromise that everyone in the industry, including lawyers, can live with. The courts should examine both the plaintiff’s and defendant’s works in order to determine whether digital sampling constitutes infringement. This test would take into account the unique challenge presented to traditional copyright law by digital sampling, while at the same time avoiding the mistakes of Bridgeport’s bright-line rule. While industry-wide steps should be taken to make the sample licensing process more efficient, recording artists and producers also need a clear idea of when a license is required. Any response to the digital sampling challenge should recognize that sampling merely allows recording artists to stand on the shoulders of other artists, furthering creative expression – something that copyright law has always encouraged.

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