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Into The Grey: The Unclear Laws of Digital Sampling  

Bergman, Bryan, 27 Hastings Comm. & Ent. L.J. 619 (2005).

Rapper Jay-Z released an a cappella version of his record ‘The Black Album,’ hoping DJ’s would mix his music with different beats, and in turn raise the popularity of the original work. One DJ did just that, taking Jay-Z lyrics and mixing them with the beats of the Beatles’ ‘The White Album,’ creating a sampled work he named ‘The Grey Album’. Jay-Z and his record company released the a cappella version specifically to be sampled, however, the DJ never asked copyright holder’s of the Beatles’ work for permission to use their music. As a result, EMI sent the DJ a cease and desist letter, causing an uproar in the music community. This was followed by Grey Tuesday, as day of protest in which many radio stations and Web sites offered the Grey Album download in full for free. While the DJ will likely never see further litigation, it is possible that the protesters on Grey Tuesday will.

Every few decades musical technology advances to a degree requiring litigation protecting artists’ rights, while taking care not to stifle the newly possible creativity. The author believes that copyright law should allow artists to take current culture, build upon it, and re-express it without the handcuff of certain copyright laws because sampling is not verbatim copying. This will best be done using a compulsory licensing system which will offer some standards from which record companies can negotiate their licenses, artists will be compensated for their music, and other artists will be able to access those works, and this will likely only happen when Congress takes the initiative to do so.

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