Sampling: A Transformative Fair Use Argument

© 2012

“The general rule of law is, that the noblest of human productions – knowledge, truths ascertained, conceptions and ideas – become after voluntary communication to others, free as the air to common use.”[1]

INTRODUCTION

Digital sampling is the process of manipulating pre-existing sound recordings and incorporating them within one’s own music.[2] This creative process, and its current standing within the United States legal system, highlights the shortcomings of the courts in relation to musical copyrights. This practice should be flourishing due to the cultural and technological revolution that began with the advent of the computer, and yet sampling is being repressed by rights holders—who, more often than not, are not the authors of the protected works—in the courts. Under the current United States legislation and precedent, samplers are akin to thieves as opposed to authors of creative work.

This paper shall focus not only upon the current state of digital sampling within the United States, but also attempt to create an argument in favor of rendering such practice applicable under the Fair Use doctrine. While digital sampling is certainly not an issue exclusive to the US, this paper shall feature this country as its primary focus due to the majority of commercial music being covered under US law.[3] The primary cause of this is the institution and upholding of a primarily copyright holder-favored system that has not yet adapted itself to the more auteur-favored system of the foreign market.[4] In order to accomplish this, this paper shall illustrate the systemic problems that affect musical copyrights—especially in regards to digital sampling—as well as suggest a new “fair use” approach, or structure, towards sampling that would better serve artists, rights holders, and the listening public.

Part I shall delve into the origins of copyright as well as its later relationship to musical works. The purpose of this examination is not only to build a foundation of understanding of past precedent and opinion, but to illuminate the maturation from origin of copyright to current views and case law. Part II shall present a brief history of “sampling”—sometimes referred to within as “borrowing” or “quotation”[5]—and establish that, as a desire to borrow and manipulate existent music, digital sampling is rooted deep within the nation’s cultural and legal history.

Part III shall examine the contradictory history of the case law surrounding digital sampling through the eyes of one particular litigation: Bridgeport Music, Inc. v Dimension Films.[6] In reviewing what could be called digital sampling’s most famous litigation—and the one that seemed to seal its coffin–this paper shall attempt to best illuminate not only the contentious nature of the subject, but how the courts system favors rights holders over the artists involved. Finally, Part IV shall take all the above-reviewed information and apply it within a proposal based primarily in the standards of the Fair Use Doctrine—one that favors the artist and the sampler over the rights holder. In effect, the end result of this proposal would align musical works rights more closely with the droit d’auteur theory of the international marketplace than the current US system.

  1. COPYRIGHT

Federal copyright finds its legal inception in English law. During the 18th century, Parliament sought to break up the publishing monopoly[7] that the crown held over British printing presses by enacting the Statute of Anne, written as “An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned.”[8] This landmark 1710 legislation granted authors copyright in their creative work as well as the exclusive right to publish it—the main point of contention from previous law in relation to the crown’s monopoly. Anne also abridged the copyright term for works to fourteen years from the originally prescribed perpetuity.[9]

Following the enacting of Anne, booksellers turned to the courts in order to secure a “natural right”[10] to copyright under common law. Millar v. Taylor (1769) granted booksellers this right, finding that the Statute of Anne in no way extinguished the common law rights of the public and, thus, no amount of time would cause a copyrighted work to pass into the public domain.[11] Ultimately, the issue was resolved and the notion of a finite term of copyright affirmed under English law in Donaldson v. Beckett.[12] In this 1774 case, the House of Lords eventually came to the conclusion that copyright was a statutory right rather than a natural and perpetual one.[13]

Like the members of Parliament, several of the framers of the United States constitution looked on monopolies with general abhorrence[14]—although, they did find temporary monopolies necessary as way for ideas to spread freely. [15] Thus, Congress—then and now—has decided itself responsible for “defining the scope of [its] limited monopoly”[16] for the purpose of incentivizing present and future artistic developments.[17] Thus, the Constitutional Convention of 1787 created the Copyright Clause in the United States Constitution. While this act applied exclusively to books, maps, and charts, it did specifically outlined the granting of copyright and patents as serving a strictly utilitarian function of Congress “to promote the progress of science and useful arts”[18] and for a limited period of time. After the minimal clause within the Constitution, the first federal copyright act was not passed until the Copyright Act of 1790—this document granted copyright for a term of “fourteen years from the time of recording the title thereof,”[19] with a right of renewal for another fourteen years if the author survived to the end of the first term. Modeled heavily after its English predecessor, the Statute of Anne,[20] this act covered not only books, but also maps and charts.[21]

Musical works were first recognized—or, at least, codified—federally as protectable copyrighted material with the passage of the Copyright Act of 1909.[22] The first update to copyright law since 1790, this document provided federal statutory copyright protection to original works as long as the works were both published and had an affixed notice of copyright.[23] Most notably, especially in relation to musical works, the 1909 Act created the first compulsory mechanical license to allow anyone to make a “mechanical reproduction”[24] of a musical composition without the consent of the copyright owner provided that the person adhered to the provisions of the license.[25]

This early US legislation, like the English legislation, was intended to be designed for the benefit of the public,[26] yet, inevitably, still favored an economic angle towards copyright.[27] The Copyright Act of 1976 effectively shut out any possibility of the permeation of auteur theory and displaced any and all previous copyright laws in the United States.[28]

Unlike the 1909 Act, the 1976 Act attached federal statutory copyright protection to original works whether or not they contained a notice of copyright or not.[29] In addition, the Act expanded its definition of musical works, in what it dubbed “works of authorship”,[30] to include any accompanying words, as well as include sound recordings.[31] In addition, the Copyright Act clearly spelled out the five exclusive rights available to copyright holders, including those for musical works and sound recordings:

  1. the right to reproduce (copy) the work into copies and phonorecords,
  2. the right to create derivative works of the original work,
  3. the right to distribute copies and phonorecords of the work to the public by sale, lease, or rental,
  4. the right to perform the work publicly (if the work is a literary, musical, dramatic, choreographic, pantomime, motion picture, or other audiovisual work), and
  5. the right to display the work publicly (if the work is a literary, musical, dramatic, choreographic, pantomime, pictorial, graphic, sculptural, motion picture, or other audiovisual work).[32]

In 1995, the Act was also amended to include the right to perform a sound recording by means of digital audio.

One of the most important aspects of the 1976 Copyright Act, especially for the purposes of this paper, was the codification of Fair Use doctrine[33]. This doctrine, based in common law, deals with the possibility that a copyrighted work is not copyright infringement, even if the use in question technically violates copyright law.[34] Furthermore, while fair use applies explicitly to comment, criticism, news reporting, teaching, scholarship, or research purposes,[35] the defense has not been limited to these areas in court.

In determining whether or not a particular use of copyrighted material is fair use, as opposed to infringement, the doctrine delineates four primary factors:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.[36]

All four of these factors must be considered when determining whether or not a particular use is fair use. The Act was later amended to extend the fair use defense to unpublished works.[37]

Finally, the Sound Recording Act of 1971 was the first document to offer federal protection to sound recordings.[38] Dealing specifically with the advances in duplication technology that had the potential to induce phonorecord piracy, this act granted reproduction, distribution, and adaptation rights to sound recordings.[39] Exclusive performance rights were granted to sound recordings in 1995 with the Digital Performance Right in Sound Recordings Act.[40]

II. DIGITAL SAMPLING

Sampling has a long history, especially when stripped down to the basic concept of “borrowing” musical content. The Medieval period of classical music[41] was marked by the church’s own utilization of existing songs, melodies and text, in order to pay tribute to or compete with said works.[42] This continued even on through the Romantic Age[43] with even such lauded composers as Beethoven manipulating past styles in order to create something that was considered new and innovative against its original.[44]

Continuing on through the 20th century, sampling appears again in the musique concrete[45] movement of 1940s-50s Paris. Here, the movement became particularly known for its use of analog tape machines to not only cut and loop pre-recorded sounds, but apply various manipulations such as changes in tempo and pitch.[46] Perhaps one of the more well-known examples of sampling comes in the form of disc jockeying, colloquially called DJ’ing. Tracing its roots to 1960s Jamaica, disc jockeyers—called, DJs—would perform with a variety of tools including mixers, turntables, and microphones.[47] Its particular prevalence in the hip hop movement that began in the mid-1970s made DJ’ing an even more ever-present force, where the mixers could be used to manipulate the physical records in order to create desired “breaks” in the music.[48] It was these “breaks” and “riffs, solos, traps, and thousands of other snippets of sound”[49] that DJs collected to create their record crates.

Finally, in the modern landscape of the 21st century, as sampling became more and more digital, the greatest influence upon the world of sampling was the creation of the Musical Instrument Digital Interface—or MIDI—synthesizer.[50] Not only did this software push the realm of digital sampling further, but it made the process significantly simpler, allowing for a single person to alter a track—change pitch or tempo—themselves, as opposed to “ten machines with people holding pencils on the loops—some only inches long and some a yard  long.”[51]

III. BRIDGEPORT

With a history and musical history and tradition as rich as sampling—also called “quotation” or “borrowing”—it could be argued that the art of digitally reproducing and manipulating previously existing sounds and melodies is nothing more than an advance in the realm of musical creation. The courts of the United States would not very likely agree. The main problem with the licensing regime that currently exists in the United States is that the particular federal documents, namely the Copyright Act of 1976 and the Sound Recording Act, were not written with the intent of addressing sampling. Again, this is puzzling given sampling’s long-standing history as a part of musical composition. Nevertheless, if one were to follow the exact laws espoused by the aforementioned acts, any person seeking to sample even a mere three-note guitar riff[52] from a song, would need a “master use” license and a “synchronization” license.[53] It is in the event that one does not acquire the aforementioned licenses that there arises multiple cases of litigation involving the practice of digital sampling—and the courts have remained, ultimately, mixed.

Of the multiple cases that have arisen dealing with digital sampling, this paper shall focus specifically upon one piece of litigation: Bridgeport Music, Inc. v. Dimension Films.[54] The significance of this case comes from the final decision reached by the courts and features what could be aptly described as a case of “a ‘good guy’ copyright owner [against] a ‘bad guy’ (‘pirate’) copyist.”[55]

In the final decision of Bridgeport Music Inc. v. Dimension Films,[56] the courts chose the economic system of collecting royalties on copyright over the free flow and availability of various creative products and ideas. Prior to this case, the federal courts had conducted a de minimis analysis[57] as way of determining whether or not sampling amounted to actionable infringement.[58]

The litigation in Bridgeport was brought about as a result of three-note, four-second guitar riff featured in the song “100 Miles and Runnin’” by Niggaz Wit Attitudes (N.W.A.) on the soundtrack to the film I Got the Hook Up. Bridgeport Music, Inc. brought suit against the distributors of the film and its soundtrack, Dimension Films, claiming that infringing section of “100 Miles and Runnin’”—henceforth referred to as “100 Miles”—was sampled from the 1975 song “Get Off Your Ass and Jam”—henceforth referred to as “Jam”—by Funkadelic.[59] Dimension Films assumed an affirmative defense, claiming that, while “100 Miles” did make use of a sample from “Jam”, the sample was not protected because it was a) not original and, b) the sample in question was de minimis, and, thus, did not constitute infringement.[60]

While the court did dismiss all claims arising from infringement of the musical composition,[61] the primary issue was the use of the sampled sound recording. Despite the fact that the district court stressed the importance of balancing the interests and rights of whom copyright law protects with the potential of stifling creativity that is caused by “overly rigid enforcement of copyright laws,”[62] the Sixth Circuit Appellate Court ultimately found Dimension Films guilty of copyright infringement.[63]

This ruling by the Sixth Circuit became a landmark ruling due to its interpretation of the 1976 Act: that any use of a copyright sound recording in sampling without proper authorization was strictly prohibited,[64] thus setting a standard for an anti-sampler courtroom. As a result of this ruling, the courts stripped away a sampler’s ability to make use of a de minimis defense,[65] establishing a “get a license or don’t sample” policy.[66] In the courts own words, “a sound recording owner has the exclusive right to ‘sample’ his own recording.”[67]

Despite this setback for digital sampling, the decision reached in the Bridgeport case has potentially left open the possibility of a fair use defense.[68]

IV. FAIR USE PROPOSITION

Thus, it is here that this paper shall detail out its own proposition for a potential and limited fair use harbor, of sorts, for instances in which digital samples are affirmed to have been used without license from the original sound recording’s copyright owner.

As stated within Section I of this paper, the Fair Use Doctrine[69] of the Copyright Act of 1976 provides an exception to established copyright law for a nonexclusive list of purposes that are deemed what it calls ‘fair use’: “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.”[70] The ultimate question is: how does sampling fit within this list, if at all? That would, in the end, depend upon the nature of the sampling itself.

While it is true that, in the past precedent in the context of sampling, courts have seldom granted a fair use defense, it can be argued that the transformative nature of sampling—of re-harnessing and re-tooling a preexisting sound or melody to the point that it could be indistinguishable from its source—is its own form of comment, perhaps even criticism, upon a sample’s derivative work.[71] By taking, as with Bridgeport, a three-note guitar riff and completely repurposing it from its original intent and making it almost indistinguishable from its origins, the sampler has made a statement, or a comment: that the transmutability of the musical medium, especially within the digital realm, offers a seemingly endless number of possibilities for even one melody—in effect, that music is utterly ephemeral and manipulatable.

As stated in Part II, it was frequent practice in the past for composers to simply create variations on preexisting themes—so does every little change therefore constitute transformative fair use? This is where the concept can become rather gray because, yes, there should be imposed limits upon what is or is not considered transformative in relation to sampling. This proposal for a transformative fair use argument has two possible scenarios for which it would apply: to either a) a sample that has been quantitatively or qualitatively altered to the point that a casual listener cannot recognize its source[72] or b) a sample that has been sufficiently transformed to the point that, while a casual listener may have the potential to recognize the original work, the originality of the piece in which the sample exists has superseded its origin and created something as a derivative[73] that is, thus, wholly original unto itself.

Bridgeport provides perhaps one of the best examples. In that case, the pieces of music in question were two aesthetically different songs: one, a funk-based dance number in which the arpeggiated riff of note was used as a wild, intense introduction to the piece; the other, a rap song in which the pitch-shifted and low-leveled[74] version of the riff is laid under the beat track in order to create the effect of a police siren. While in “Get Off”, the descending notes produced “a rising sense of anticipation” at the beginning of the song, the sample in “100 Miles” had the effect of creating “tension and apprehension at the sound of pursuing law enforcement,” thus resulting in a qualitative—as well as a quantitative—difference.[75]

“100 Miles”’ use of the sample resulted in the creation of something that was original unto itself and, thus, would qualify under the previously set forth requirements for a transformative fair use defense.

In order to be fair, on the contrary side of this proposal, should the use of a sample not be considered “sufficiently transformative” in accordance with the previously stated requirements, then, yes, the current standard of negotiating the ability to use the original sound recording with rights holders would have to apply. Additionally, rights holders would not be barred from launching suit against potential infringers, but the courts would be expected to take this transformative fair use defense into consideration, in addition to the de minimis defense—in effect, they should disregard the outcome of Bridgeport.

CONCLUSION

Sampling, as a musical practice, dates back to before the days of written copyright law. It demonstrates the seemingly limitless potential for music’s own transmutability. The courts, however, have failed to foster such creativity, flying in the face of all the copyright law stood for: to encourage the creation of creative works. Creativity has been sacrificed on the altar of the income gained from the licenses ascribed to sound recordings, facilitated by the courts, whom have chosen to destroy de minimis and restrict a fair use defense for samplers.

The current practices and views on sampling are archaic and in need of an update. An amendment for some sort of transformative fair use defense for sampling, in addition to reconsideration and reinstitution of the de minimis defense, would allow for the dissemination of more creative ideas, just as the laws intended from their inception


[1] International News Service v. Associated Press, 248 U.S. 215, 250 (1918) (Justice Brandeis, dissenting)

[2] “Digital Sampling: Legal & Law Definition.” (2012) at http://definitions.uslegal.com/d/digital-sampling/

[3] Ashtar, Reuven; Note, Theft, Transformation, And The Need of the Immaterial: A Proposal For A Fair Use Digital Sampling Regime, 19 Alb. L.J. Sci. & Tech. 261 (2009)

[4] “No international copyright law exists that will protect a work in every country of the world. However, several key international treaties that the United States has signed protects [sic] works from and within member nations. Cases that could have clarified the international scope of copyright have been settled out of court.” International Copyright Law. (2012) at http://depts.washington.edu/uwcopy/Copyright_Law/International_Copyright_Law/

[5] “N5. The terminology is inconsistent throughout the literature. Carl A. Falstrom, Note, Thou Shalt Not Steal: Grand Upright Music Ltd. v. Warner Bros. Records, Inc. and the Future of Digital Sound Sampling in Popular Music, 45 Hastings L.J. 359, 359 n.2 (1994) (stating that “borrowing” is a loaded term with pejorative connotations to theft and piracy). Here, I consider “quotation” the use of compositional elements rather than parts of actual sound recordings, and I use the term “borrowing” for the reuse of recorded sounds, i.e. sampling.” Ashtar, Reuven; Note, Theft, Transformation, And The Need of the Immaterial: A Proposal For A Fair Use Digital Sampling Regime, 19 Alb. L.J. Sci. & Tech. 261 (2009)

[6] Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 6792 (6th Cir. 2005)

[7] Tyler T. Ochoa & Mark Rose, The Anti-Monopoly Origins of the Patent and Copyright Clause, 49 J. Copyright Soc’y U.S.A. 675, 677 (2002), cited in: John Tehranian, Et Tu, Fair Use? The Triumph of Natural-Law Copyright, 38 U.C. Davis L. Rev. 465, 467 (2005)

[8] Statute of Anne, 1710, 8 Ann., c. 19 (Eng.)

[9]There also existed a special clause that allowed for the possibility of a one-term extension for living authors and a 21-year term for works already in print. Ibid

[10] “The unwritten body of universal moral principles that underlie the ethical and legal norms by which human conduct is sometimes evaluated and governed. Natural law is often contrasted with positive law, which consists of the written rules and regulations enacted by government. The term natural law is derived from the Roman term jus naturale.” Natural Law. (2012) at http://legal-dictionary.thefreedictionary.com/Natural+Law

[11] Millar v. Taylor, 4 Burr. 2303, 98 Eng. Rep. 201 (H.L. 1769)

[12] Donaldson v. Beckett, 98 Eng. Rep. 257 (H.L. 1774)

[13] Ibid

[14] “The saying there shall be no monopolies lessens the incitements to ingenuity, which is spurred on by the hope of a monopoly for a limited time, as of 14. years; but the benefit even of limited monopolies is too doubtful to be opposed to that of their general suppression.” Letter from Thomas Jefferson to James Madison (July 31, 1788).  The Works of Thomas Jefferson. Paul Leicester Ford ed., 1904.

[15] “Monoplies tho’ in [sic] certain cases useful ought to be granted with caution, and guarded with strictness agst [sic] abuse. The Constitution of the U. S. has limited them to two cases, the authors of Books, and of useful inventions, in both which they are considered as a compensation for a benefit actually gained to the community as a purchase of property which the owner might otherwise withhold [sic] from public use. There can be no just objection to a temporary monopoly in these cases but it ought to be temporary, because under that limitation a sufficient recompence and encouragement may be given.” Madison, James. An Excerpt from “Detached Memoranda”. available at http://classicliberal.tripod.com/madison/detached4.html

[16] Sony Corp. of Am. v. Universal City Studios, 464 U.S. 417, 429 (1984)

[17] “‘The copyright law, like the patent statutes, makes reward to the owner a secondary consideration.”United States v. Paramount Pictures, 334 U.S. 131, 158. However, it is “intended definitely to grant valuable, enforceable rights to authors, publishers, etc., without burdensome requirements; ‘to afford greater encouragement to the production of literary [or artistic] works of lasting benefit to the world.’” Washingtonian Co. v. Pearson, 306 U.S. 30, 36.” Mazer v. Stein, 347 U.S. 201, 219 (1954)

[18] U.S. Const. art. I, § 8, cl. 8 (1788)

[19] The Copyright Act of 1790. 1 Stat. 124 (1790)

[20] With exception of the provision for maps and charts, the Copyright Act of 1790 is copied almost verbatim from the Statute of Anne.

[21] The Copyright Act of 1790. 1 Stat. 124 (1790)

[22] The Copyright Act of 1909 §5, 35 Stat. 1075 (1909)

[23] §9, Ibid

[24] This phrase is more commonly referred to as ‘phonorecords’ and refers not only to direct physical copies of the original musical work in question, but also to what are commonly known as ‘cover versions’ of said musical works.

[25] The Copyright Act of 1909 §1(e), 35 Stat. 1075 (1909)

[26] “This is undoubtedly one of the most significant reports in the history of the U.S. copyright legislation and is quoted in American copyright literature and jurisprudence, particularly for its statements to the effect that copyright is purely a statutory right and that it is conferred “Not primarily for the benefit of the author, but primarily for the benefit of the public.”” Copyright Law Revision: Hearings Before the Subcomm. on Patents, Trademarks, and Copyrights of the Senate Comm. on the Judiciary, 89th Cong., 1st Sess. 63, 65 (1965) (statement of Abraham L. Kaminstein, Register of Copyrights, accompanied by Barbara Ringer, Assistant Register) (copyright is primarily meant to benefit the “public interest”), reprinted in 8 George S. Grossman, Omnibus Copyright revision Legislative History, at 65 (2001); H.R. Rep. No. 60-2222, at 7 (1909), reprinted in 8 Melville B. Nimmer & David Nimmer, Nimmer on Copyright, app. at 13-11 (Lexis Nexis 2008)

[27] These demanding of the notices and fixation of copyright in the 1909 Act separated the U.S. from the foreign market. The Berne Convention of 1886 prohibited the requirement of formal notice for copyrighted works, instead stating copyright as automatic (1 B.D.I.E.L. 715)

[28] This included prior federal legislation, such as the Copyright Act of 1909, and extended to all relevant common law and state copyright laws.

[29] Under the 1976 Act, however, section 102 says that copyright protection extends to original works that are fixed in a tangible medium of expression. Thus, the 1976 Act broadened the scope of federal statutory copyright protection from “published” works to works that are “fixed”. The Copyright Act of 1976, Pub. L. No. 94-553, 90 Stat. 2541 (1976)

[30] Ibid

[31] Id.

[32] Id.

[33] §107 Ibid

[34] Id.

[35] Id.

[36] Id.

[37] Id.

[38] Sound Recording Act of 1971, Pub. L. No. 92-140 (1971)

[39] This protection did not include performance rights. This limited copyright protection was incorporated into the 1976 Copyright Act.

[40] Digital Performance Right in Sound Recordings Act, Pub. L. No. 104-39, 109 Stat. 336 (1995)

[41] Generally accepted as the period between 500–1400. Hoppin, Richard H. (1978) Medieval Music, New York, NY: W. W. Norton.

[42] Brandes, Lauren Fontein; Comment, From Mozart to Hip-Hop: The Impact of Bridgeport v. Dimension Films on Musical Creativity, 14 UCLA Ent. L. Rev. 93, 119 (2007)

[43] Generally accepted as the period between 1815-1910. “Romanticism.” Encyclopædia Britannica Online. Retrieved 2012-04-24.

[44] The practice of “looping” music can trace its roots here, where it was conceived before it was technologically feasible in relation to today’s practice. Newton v. Diamond, 204 F. Supp. 2d 1244, 1259 (C.D. Cal. 2002) (Newton), aff’d, 349 F.3d 591 (9th Cir. 2003)

[45] Musique concrete (“concrete music”) is a form of electroacoustic music that utilises acousmatic sound as a compositional resource. The aesthetic’s theoretical underpinnings began developing in the early 1940s. Holmes, Thom. Electronic and experimental music: technology, music, and culture, 3 ed. Taylor & Francis. Retrieved 04-25-2012.

[46] Francis Preve, Power Tools: Software for Loop Music: Essential Desktop Production Techniques 1-2 (Backbeat Books 2004)

[47] Droppin’ Science: Critical Essays on Rap Music and Hip Hop Culture 6 (William Eric Perkins ed., Temple University Press 1996)

[48] Supra note 5.

[49] Ibid

[50] This device allowed musicians to digitally record, alter, and play back sounds. Loy, Gareth. Musicians Make a Standard: The MIDI Phenomenon. 9 Computer Music J. 8, 8 (1985); Michael Chanan, Repeated Takes: A Short History of Recording and Its Effects on Music 161 (Verso 1995)

[51] Supra note 45.

[52] Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 6792 (6th Cir. 2005)

[53] The Copyright Act of 1976, Pub. L. No. 94-553, 90 Stat. 2541 (1976)

[54] Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 6792 (6th Cir. 2005)

[55] Ashtar, Reuven; Note, Theft, Transformation, And The Need of the Immaterial: A Proposal For A Fair Use Digital Sampling Regime, 19 Alb. L.J. Sci. & Tech. 261 (2009)

[56] Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 6792 (6th Cir. 2005)

[57] The de minimis defense in digital sampling cases has been reduced, by the courts, to a single question: “whether the defendant appropriated, either quantitatively or qualitatively, ‘constituent elements of the work that are original.’” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991), qtd. in Jarvis, 827 F. Supp. at 291

[58] See Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 6792 (6th Cir. 2005); Grand Upright Music Ltd. v. Warner Bros. Records, 780 F. Supp. 182 (S.D.N.Y. 1991)

[59] Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 6792 (6th Cir. 2005)

[60] Ibid

[61] The court determined that the licenses the defendant, Dimension Films, claimed to have received were, indeed, valid. Id.

[62] Bridgeport Music, Inc. v. Dimension Films, 230 F. Supp. 2d 830, 842 (M.D. Tenn. 2002)

[63] Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 6792 (6th Cir. 2005)

[64] Ibid

[65] The court came to the decision that the language of the Copyright Act of 1976 precluded any use of a substantial similarity test in relation to digital samples in sound recordings. Id.

[66] Id.

[67] Id.

[68] Id.

[69] The Copyright Act of 1976 §107, Pub. L. No. 94-553, 90 Stat. 2541 (1976)

[70] Ibid.

[71] §107 does not provide specific, written instruction as to what defines a work as a “comment” or “criticism”, thus allowing for some degree of malleability with the terms.

[72] Such an instance as this would qualify under de minimis as non-infringing and thus require no license. See Amanda Webber, Note, Digital Sampling and the Legal Implications of Its Use After Bridgeport, 22 St. John’s J. Legal Comment. 373, 395-97 (2007) (citing Grand Upright, 780 F. Supp at 184

[73] “A “derivative work” is a work based upon one or more pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.” The Copyright Act of 1976 §101, Pub. L. No. 94-553, 90 Stat. 2541 (1976)

[74] Pitch-shifting a song either raises or lowers the tone of the notes in question and levels, in recorded music, refer to a piece’s volume.

[75] Bridgeport Music I, 230 F. Supp. 2d at 841.

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