We’ve talked about sampling a lot in this course, and I have particularly covered the topic on this blog. It seems that there continues to be ambiguity about where the line between legality and creativity ought to be drawn – and there likewise seems to be a feeling that Bridgeport falls short.
I want to begin with a look into a case that tends to get overlooked in the discussion of sampling: Emerson v. Davies. Even though the case was brought in the latter part of the 19th century, the court nevertheless recognizes the importance of borrowing in art – this foundation will be important when analyzing the shifts in attitudes towards sampling to the shifts in the structure of the music industry as a whole.
After examining early American attitudes towards re-appropriation, I want to unpack and analyze the Bridgeport v. Dimension Films decision, with a particular focus on the district court’s initial ruling on sampling and its rationale, which are often ignored. In tandem with the court’s rulings in sampling cases, I want to examine the major changes that have happened in the music industry since the 1980’s, when sampling became mainstream – shifts towards consolidation, division of music rights (one of the most complex aspects of the sampling debate), greater power for the recording industry, and yet, towards the end of the 1990’s, a loss of control by the recording industry within music markets. How might these changes have effected the attitudes towards sampling that were fostered both by the courts, and in the American consumer psyche?
I am of the opinion that the current precedent regarding sampling is unfair and outdated. The remainder of my paper will focus on the different solutions that may “solve” the sampling problem: 1) a standardized licensing model (like that used to license cover songs), 2) alternative licensing solutions (like opting-in to Creative Commons licenses), 3) legal action overruling Bridgeport.
Particularly, I want to imagine what a case that overrules Bridgeport would look like – what previous cases could it draw from in its opinion? Will the protection of sampled works rely on a fair use exception or something else entirely?
Based on the proposed “solutions” to the sampling problem, I want to discuss the problems these could raise, particularly regarding America’s compliance with international copyright treaties, like the Berne Convention and WIPO’s Copyright Implementation Act. Can America lead the charge in reforming international attitudes toward sampling without violating international treaties? And, if so, what are the implications for other forms of media?
(I plan to draw from the points about sampling raised in the documentary Copyright Criminals and Good Copy, Bad Copy, Lawrence Lessig’s work discussing the shortcomings in American copyright law (particularly Free Culture and his recent TED talk), Tim Wu’s The Master Switch, the aforementioned case laws and academic critiques thereof, and scholarly papers on sampling that have appeared in law reviews in the last five years.)
