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1992 Wis. L. Rev. 1941 (1992)
They Don't Make Music the Way They Used to: The Legal Implications of Sampling in Contemporary Music

handle is hein.journals/wlr1992 and id is 1953 raw text is: COMMENTS THEY DON'T MAKE MUSIC THE WAY THEY USED TO: THE LEGAL IMPLICATIONS OF SAMPLING IN CONTEMPORARY MUSIC* Jeffrey H. Brown* Sampling is the incorporation of previously recorded works into new musical compositions. This Comment examines the legal considerations arising from this practice. The Author reviews the decision in Grand Upright Music Ltd. v. Warner Brothers Records, Inc., the first adjudicated sampling case, and suggests that the decision has failed to provide sampling practitioners with guidance for determining whether the use of a particular sample will constitute copyright infringement. The Author assesses how copyright law, the right of publicity, the doctrine of misappropriation, and the law of unfair competition might be applied in prospective sampling cases. To alleviate some of the uncertainty surrounding the legality of sampling, the Author proposes guidelines for sampling practitioners and suggests amendments to the Copyright Act. I. INTRODUCTION Several generations of youngsters have heard the parental refrain, They don't make music the way they used to. Today these sentiments reflect more than a nostalgia for 1930s swing or 1950s rock and roll. Technology has changed not only the sound of contemporary music, but also the way it is created. Not too long ago, recordings were made by assembling the desired performers in a recording studio and capturing their performance on a master tape. If a producer desired an instrumentalist or vocalist who was unable or unwilling to participate in the recording, the producer had no choice but to find a substitute or abandon the recording session. If, for example, the producer believed that he needed a funky, hard-edged accompaniment for his vocalist, he might hire a group such as Rick James * An earlier version of this Comment received First Prize in the American Society of Composers, Authors and Publishers' Nathan Burkan Memorial Competition at the University of Wisconsin Law School. ** University of Wisconsin Law School. Special thanks to my hip parents who never told me, They don't make music the way they used to. Thanks also to Lauren Schreiber and Lauren Brown for their support and encouragement.

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