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“The Don’t Make Music The Way They Used To”: The Legal Implications of “Sampling” in Contemporary Music  

Brown, Jeffrey H., 1992 Wis. L. Rev. 1941 (1992)

Despite the arrival of the long awaited “first decision” on sampling in Grand Upright, the myriad copyright and related issues raised by sampling remain unaddressed. Because the facts underlying the Grand Upright case are atypical from those in most instances of sampling and because the 7th Commandment may have been improperly invoked, it is likely that this decision will be of dubious value in future sampling cases.

Sampling practitioners thus continue to operate in a business and legal environment that is unsettled. Without delay, sampling practitioners and sampled artists should utilize this opportunity to develop their own guidelines prior to any further judicial decisions. The parties involved in sampling are in the best position to create effective licensing agreements. These agreements should be based on mutual respect for the artistry of both sampling and sampled performers. Sampled artists should set reasonable licensing rates, keeping in mind that high rates may encourage samplers to hire studio musicians to imitate the sounds they desire, thus depriving the artists of any compensation they otherwise would have received.

If the courts are left to set the rules under which sampling will be conducted, one of two less-than-desirable outcomes is likely. First, copyright law, the right of publicity, and the Lanham Act may be distorted so that sampled artists (and/or the parties that own the copyrights in the sampled work) are compensated when their work is appropriated even when these laws do not provide a remedy. Second, these laws may be rigidly applied to deny sampled performers compensation even when another party has been enriched as a result of their efforts.

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