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6 U. Miami Ent. & Sports L. Rev. 61 (1989)
Digital Sampling and Signature Sound: Protection under Copyright and Non-Copyright Law

handle is hein.journals/umelsr6 and id is 65 raw text is: COMMENTS DIGITAL SAMPLING AND SIGNATURE SOUND: PROTECTION UNDER COPYRIGHT AND NON-COPYRIGHT LAW I. INTRODUCTION ......................................................... 61 II. COPYRIGHT LAW AND PROTECTION FROM SAMPLING: A STATUTORY MISMATCH .. 62 A. Digital Sampling: The Process ..................................... 64 B. Widespread Sampling: A Conundrum for the Law .................. 66 C. The Limits of the Statutory Scheme ............................... 69 1. Imitation Versus Rerecording .................................. 71 2. Substantial Sim ilarity .................................. ...... 75 3. Protected Expressions ......................................... 78 III. PROTECTION UNDER COMMON LAW ACTION FOR UNFAIR COMPETITION ......... 80 A. The Tort of Passing Off ........................................... 80 B. M isappropriation ................................................. 83 IV. CONCLUSION .................................... 86 Personality always contains something unique. It expresses its singularity even in handwriting, and a very modest grade of art has in it something irreducible, which is one man's alone. That something he may copyright unless there is a restriction in the words of the act. Oliver Wendell Holmes1 I. INTRODUCTION Popular musicians frequently are recognized by the distinctive characteristics of their sound. The unique timbre of a voice or an instrument often immediately suggests a performer's identity.2 In- 1. Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 250 (1902). 2. Musical sound best can be understood as being comprised of four factors: Pitch (note), duration (length), volume (loudness), and timbre (distinctive tonal qualities). See generally G. JONES, Music THEORY 3 (1974). To illustrate, a note played on an acoustic violin has a different timbre than that played on an electric violin. Even though the sound played by the violins may be indentical in other regards-specifically, note, duration, and loudness-the electric violin's sound is smooth, while, in contrast, that of its acoustic coun- terpart has a rough texture.

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