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I am of the opinion that the current precedent regarding sampling is unfair and outdated.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.)

Techdirt makes the point that his reviews are transformative and fair use and that if the reviewer were to be sued a fair use verdict in his favor would set a precedent for what people are legally allowed to do in their criticism of other’s copyrighted works. Hopefully, these reviews don’t get taken down because they are indeed a creative work on their own. I think expanding fair use would not only benefit everyone’s free speech rights, but also enrich our cultural dialogue as well.

Thought this video might be fun to watch as we write our papers. It explains copyright law, extended copyright terms, the public domain, and fair use by stringing together split-second clips from dozens of Disney movies. (I kind of felt like my entire childhood was flashing before my eyes.) My favorite part: “What the heck is the public domain? :::blank stares::: The public domain is a disgrace to the forces of evil!”

Synopsis: Professor Eric Faden of Bucknell University created this humorous, yet informative, review of copyright principles delivered through the words of the very folks we can thank for nearly endless copyright terms.

It’s pretty helpful to listen closely and piece together the concepts we’ve learned. Faden packs a lot into only ten minutes, but if you don’t want to sit through all the choppy clips, go to 6:18 for the chapter on fair use. Happy writing!