Music Copyrights: The Need for an Appropriate Fair Use Analysis in Digital Sampling Infringement Suits
![handle is hein.journals/flsulr21 and id is 145 raw text is: MUSIC COPYRIGHTS: THE NEED FOR AN
APPROPRIATE FAIR USE ANALYSIS IN DIGITAL
SAMPLING INFRINGEMENT SUITS
A. DEAN JOHNSON*
1. INTRODUCTION
D IGITAL sampling has become both the music industry's boon
and bane. Its introduction into the consumer market was hailed
as a great technological advance for the music industry,' as well as an
insidious conspiracy against musicians.2 Copyright owners and studio
musicians assert that digital sampling denies them just compensation
for the use of their work.3 Artists who use samples, however, believe
this fertile source of musical inspiration will become prohibitively ex-
pensive if they must license each use of previously recorded music.4 In
* This Comment was awarded second prize in the 1993 Florida State University Nathan
Burkan Memorial Competition sponsored by the American Society of Composers, Authors and
Publishers. The author, who received his bachelor's degree in Music Theory and Composition
with a minor in Music Business from Belmont College in 1991, and is currently a juris doctor-
ate candidate at Florida State University College of Law, has attempted to present a balanced
analysis of this problem from both an artistic and a legal standpoint.
I. See Jon Pareles, Digital Technology Changing Music, N.Y. Tsmss, Oct. 16, 1986, at
C23 (Artistically, sampling offers musicians unparalleled flexibility. It puts virtually any
sound-live or recorded, natural or synthetic-at a performer's finger tips, allowing musicians
to reshape borrowed sound in new contexts.).
2. See David Goldberg & Robert J. Bernstein, Reflections on Sampling, N.Y.L.J., Jan.
15, 1993, at 3 (Sampling has been called everything from an 'art form' to 'stealing' and has
provoked much litigation since its advent .... (citations omitted)); Pareles, supra note 1, at
C23 (Taking one note off a cassette and mucking about with it is one thing. But if you have a
session musician in and sample him and don't hire him for the next track, that's a very bad
thing. (quoting Trevor Horn, producer)); Chuck Philips, Songwriter Wins Large Settlement
in Rap Suit, L.A. TamEs, Jan. 1, 1992, at F l (Sampled songwriter's attorney stated [s]ampling
is a euphemism that was developed by the music industry to mask what is obviously thievery.
Another sampled musician added that [a]nybody who can honestly say sampling is some sort
of creativity has never done anything creative.); Send in the Clones: Digital Sampling a Sound
Revelation, Cm. Tiua., Oct. 10, 1986, at 86 [hereinafter Send in the Clones]; Terri Thompson
et al., Music is Alive with the Sound of High Tech, Bus. WK., Oct. 26, 1987, at 114.
3. See Robert G. Sugarman & Joseph P. Salvo, Sampling Gives Law A New Mix; Whose
Rights?, NAT'L L.J., Nov. 11, 1991, at 21.
4. See Richard Harrington, The Groove Robbers' Judgement; Order on 'Sampling'
Songs May Be Rap Landmark, WASH. PosT, Dec. 25, 1991, at DI, D7 ([A]rtists often ask
ridiculous prices for permission to sample their works. Fees can range from $500 to $50,000,
and some albums have been delayed, and tracks removed, when clearances proved either too](ViewImageLocal?handle=hein.journals/flsulr21&div=12&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Music Copyrights: The Need for an Appropriate Fair Use Analysis in Digital Sampling Infringement Suits
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most